Rachel Carson State Office Building
P.O. Box 8461
Harrisburg, PA 17105-8461

January 22, 2001

At its January 4 meeting the Board identified several of areas in the draft final rulemaking on Chapter 90, Coal Refuse Disposal, in need of clarification. Based on those discussions, the Department proposes the following changes

• Section 90.5 – This section has been revised to include a reference to the Department’s existing guidance on selecting coal refuse disposal sites. A copy of the guidance is enclosed.
• Section 90.12 – Language has been added to require geologic information to be prepared and certified by a registered professional geologist.
• Section 90.50 – This section has been rewritten to include a new subsection (c), which includes a cross-reference to the Department’s technical guidance on liners. A copy of the guidance is enclosed.
• Subsection 90.122(h) –Subsection 90.122(h) has been revised to be more consistent with the statutory language and to address the Board’s concern that the subsection’s language could be misinterpreted to require that every piece of coal refuse be sheltered from precipitation during the entire operational life of the coal refuse disposal area.
• Subsection 90.202(b)(2) –This subsection, which deals with site selection, has been rewritten based on informal discussions with PCA since the January 4 meeting.

Enclosed for the Board’s consideration are the proposed revisions to sections 90.5, 90.12, 90.50, 90.122, and 90.202.

One of the issues discussed at the meeting was that the proposed regulations do not provide specific design criteria for systems to prevent groundwater contamination at coal refuse sites. As pointed out at the meeting, design criteria for liners at coal refuse disposal sites are found in an existing DEP technical guidance document (563-2112-656, Liners – Impoundments, Stockpiles and Coal Refuse Disposal Areas). One suggestion was to include a reference to this technical guidance in the regulations. The Department has had a number of informal discussions with various parties on this issue since the January 4 meeting. We find ourselves between two strongly held, opposing views. One is to insert not only a reference to the technical guidance on liners but to insert references to all guidance that would apply to the permitting of coal refuse disposal operations. The other is that we not include references to technical guidance documents in the regulations. There are valid arguments for both positions.

The most compelling argument regarding the inclusion of references to guidance documents comes from the Department’s past experience with the Independent Regulatory Review Commission (IRRC). In cases where IRRC determines a guidance document is routinely relied upon by the Department or is integral to the implementation of a regulation, IRRC insists that the guidance be referenced in the regulation. I have, therefore, decided to insert references to the pertinent guidance documents in sections 90.5 and 90.50 as outlined above.

Enclosures

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