Comment and Response Document
for Proposed Technical Guidance Document
Use of Reclamation Fill at Active Noncoal Sites
563-2000-301
Commentators:
1.
Dan Kell
Via E-Mail
[email protected]
2.
Brian Hilliard
Coplay Aggregates, Inc.
P.O. Box 143
Orefield, PA 18069
3.
Emily Krafjack
Connection for Oil, Gas & Environment in the Northern Tier, Inc.
1155 Nimble Hill Road
Mehoopany, PA 18629
4.
Josey Gaskey
Pennsylvania Aggregates and Concrete Association
3509 N. Front St.
Harrisburg, PA 17110
1.
Comment: Present regulations regarding Reclamation have been confusing and clarifying the
inbound fill topic for active quarries has been helpful. However, changing the limits that
determine clean vs. regulated fill go beyond fair and reasonable regulatory authority. [1]
Response: The limits established in the proposed revision are based upon sound science and are
consistent with regulatory requirements of Chapter 7: Noncoal Mining. The DEP concludes that
the chosen numbers are protective of the environment in consideration of the active noncoal
mining permit that is utilizing reclamation fill. Due to the differences between the mining and
waste programs, two separate policies for imported fill was deemed necessary.
2.
Comment: In the construction industry, the amount of regulation has State agencies at odds, a
clear sign that regulation is over the top, falling on it’s (sic) own weight and having an adverse
impact on the industry and jobs. [1]
Small businesses are being regulated out of business, creating a void that is being filled by large
out of state corporations. This is in direct opposition to our new Governor’s platform and will
add cost to an already underfunded budget. Any changes need to address these impacts (sic)
We do not need a “shotgun” approach to Reclamation and Management of Fill. Not one yard of
use- able fill should go into a hole unless every opportunity to find a beneficial use for that
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material is exhausted. The reuse and recycle of soil and rock from construction sites across the
Commonwealth adds millions of dollars of value to projects Private and Public. [1]
Response: This comment is beyond the scope of the proposed revision to the guidance. Note
that this document was previously published as final on November 2, 2013 and this revision
reflects only the shift to qualifying material under the Statewide health standards. The DEP
worked closely with industry representatives to ensure that this policy was workable. The
regulations referenced in support of this document are the Noncoal statutes and existing
Chapter 77 which required a different approach to importing fill to mine sites instead of
co-opting the “clean fill” requirements. There have been no regulatory changes made that would
require any changes to this guidance. However, please note that the “clean fill” guidance is also
being revised under the waste program at this time.
3.
Comment: Page 9 Periodic Grab Samples has been in effect since the publication of this
Guidance document. We would still comment that the collection of this sample should be based
on a per project basis or un-approved projects only. This is not stated if that is the method being
applied by the Department. There is also no discussion on what the procedure is if the period
sample fails. Are all previous loads in question? Does this increase sampling rate? Is this a
violation? There are many operational and practical issues on concern that an operator would
need to understand the process that would be taken. This process should also not be incident
specific due to legal challenges that would occur. [2]
Response: Grab samples are necessary to ensure compliance with the guidelines for accepting
suitable materials and necessary to assure compliance with Chapter 77 for pollution prevention
on a noncoal mine site. Use of imported fill for reclamation is an option for operators, not a
requirement. If there is a failure of the incoming material to meet the established quality
standards, then it is the permittee’s responsibility to address rejection and/or removal of the
material that does not meet those standards. This is addressed in the Permittee Responsibility
section on page 6 of the TGD. If the operator does not have a high degree of comfort with the
risk of importing fill, he is not obliged to use it as part of reclamation. The absolute liability that
accompanies being a permittee provides a strong incentive for the self-monitoring required for
this process to be effective.
4.
Comment: Appendix A. Analysis of Results refers to the Statewide Health Standard (SHS) as
the concentration limit without any explanation as to which SHS is the limit. I would assume
there should be reference to the Figure 1. [2]
Response: Noted. Reference to Figure 1 has been included.
5.
Comment: Page 13 Appendix A “Chemical criteria..” Paragraph 3 discussed the fact that the
SHS are regularly updated. The linkage of the Reclamation Fill limits to the SHS’s would lead
to regularly changing acceptance limits. In the case that future SHS are decreased for any
constituent you could then have a site that previously accepted fill at the levels higher than the
current SHS. This would mean that the site now contains contaminants higher than the SHS and
the site would be classified as contaminated. The department would have to put in writing that
these changes do not have any repercussions for future uses of the property. It isn’t in the range
of this policy to make such statements. When these mining properties are finally reclaimed and
are being sold or changed in use, the disclosure of fill activities will cause future owners to
require testing to ensure the compliance with current SHS. If they fail the current standards, the
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site would be labeled as contaminated and would require a DEP supervised clean up. This is the
difficulty with a moving target over time for a compliance point. This process would lead to
many sites becoming “contaminated” based on the changing standards. [2]
Response: Lowering of MSCs under the Statewide health standard does not necessarily mean
that sites are considered “contaminated”. The MSCs under the Statewide health standard may
change as further information is obtained in the future. If such a situation arises, the DEP will
discuss the issue with any affected permittees and modify the permit if necessary at that time.
6.
Comment: Page 14 Laboratory Detection Limits. In many cases the current laboratory best
practices are unable to meet the limits listed in the SHS. This is a situation where the
mathematical calculation of the limits exceeds the practical ability of the “real world” laboratory
instruments. How will this be reviewed? In the case where the detection limit is exceeded due
to matrix interference, is the Department willing to accept that as an acceptable result. This was
specifically stated in the guidance document as if it carries some weight. [2]
Response: This comment is beyond the scope of the proposed revision to the TGD. The DEP
has accounted for the detection limit issues. The operator is allowed to justify this situation
when it arises. Please note that this section has not been revised as part of this TGD revision and
it remains as previously published as final on November 2, 2013.
7.
Comment: Page 15 Appendix A Figure 1. This matrix table lays out the limits based on
placement of material. I can see this matrix would cause confusion. Possibly a little more detail
would help. I understand the matrix is very similar to the preprinted tables of the previous
Reclamation Fill document. [2]
Response: DEP has constructed the table to include the necessary amount of detail but not too
much to make overly complicated. Further explanation is provided in the accompanying text.
Operators already using reclamation fill have not commented that this figure presents a problem
and have found it acceptable.
8.
Comment: We propose the following additional item (revised k) as material that is specifically
excluded from this definition and may not be considered as reclamation fill under any
circumstances.
(k) DEP research and development permitted “engineered” or “processed” vertical and
horizontal drill cuttings, soils, muds or other related materials resulting from unconventional
shale gas drilling.
(l) Any other substance that the Department determines may pose an environmental, safety or
health risk.
We recommend this change in consideration that the materials have not yet had sufficient
demonstration to indicate that there is no environmental harm, short or long term that may occur
with use as Reclamation Fill on Active Non-Coal Sites. [3]
Response: Bureau of Waste Management has determined that drill cuttings, soils and muds
from oil and gas well installation are industrial wastes and would not meet the definition of
Clean and Regulated Fill. Such wastes would not be suitable as reclamation fill.
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9.
Comment: Under STANDARD CRITERIA FOR APPROVAL - The “processed” drill cuttings
and other related materials contain contaminants such as arsenic, lead and barium at amounts that
may be beyond what is present at the reclamation site. We don’t want to be merely finding ways
to dispose of these materials. We want to see them utilized as solutions in our environment.
The use of “processed” drill cuttings and other related materials are not suitable to restore land to
a condition of supporting uses equal to or higher and better than the pre-mining uses. At this
point, there have been insufficient demonstrations to support equal to or higher and better than
the pre-mining uses. [3]
Response: See response to Comment #8.
10.
Comment: Non-coal mine operations have on occasion impacted nearby private water supplies.
Often, due to the nature of the operations, they leave behind a series of ponds. Often non-coal
mine operations are found near streams and the Susquehanna River. The area being reclaimed is
also closer to the groundwater table where nearby families may be drawing their private water
supplies. Therefore, it is environmentally inappropriate and contrary to adequate protection of
water resources and public health and safety to permit “processed” drill cuttings and other related
materials to be utilized as Reclamation Fill at Active Non-Coal Sites. [3]
Response: See previous responses regarding “drill cuttings”. On any permit area, the operator
is required to meet the provisions of their reclamation plan, and not cause pollution. This is cited
in 25 Pa. Code Section 77.126(a)(3) regarding demonstration of no presumptive evidence of
potential pollution of water, with which noncoal mine operators must comply.
11.
Comment: Under STANDARD PROCESS FOR APPROVAL - No volume of DEP permitted
research and development “engineered or processed” drill cuttings, etc. are suitable for incidental
or reclamation volumes. As long as “engineered or processed” vertical and horizontal drill
cuttings are comingled and processed under a research and development permit they are not
suitable to be used for fill at any site other than Act 2 sites. Based on current available
information on comingled (vertical & horizontal) and horizontal “engineered or processed” drill
cuttings and other materials it is most important that such materials are not utilized as any
volume of reclamation fill. It is imperative that these materials are not placed below or near the
groundwater table. [3]
Response: The standards for meeting the criterial of reclamation fill are given in this document.
If material meets the standards, it may be considered suitable for reclamation fill. For drill
cuttings, see response to Comment #8.
12.
Comment: PACA represents the broad interests of over 200 member aggregates (stone, sand
and gravel), concrete companies, and companies supporting these industries (equipment
manufacturers, dealers, consultants, and service providers) in the Commonwealth of
Pennsylvania.
PACA appreciates the opportunity to provide input regarding the Department’s request for
comments. We wish to acknowledge and express appreciation for the work done by the
Department, in a collaborative effort with stakeholders, to obtain a workable document bound by
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the confines of the law. We look forward to working with the Department in the same
collaborative effort, should unforeseen challenges arise with the TGD. [4]
Response: Thank you for your comment.
Other comments: The DEP received input from other bureaus on the draft revised TGD. Changes
were incorporated based on internal discussions.
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