[Federal Register Volume 65, Number 22 (Wednesday, February 2, 2000)]
[Rules and Regulations]
[Pages 4882-4886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2269]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-123-FOR]


Pennsylvania Regulatory Program

AGENCY:  Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION:  Final rule; approval of amendments.

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SUMMARY:  OSM is approving, with one exception, a proposed amendment to 
the Pennsylvania permanent regulatory program (Pennsylvania program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment responds to required amendments to the Pennsylvania 
program that are identified in OSM's approval of Pennsylvania's coal 
refuse disposal amendment on April 22, 1998 (63 FR 19802). The 
amendment is intended to revise the Pennsylvania program to be 
consistent with SMCRA and the Federal regulations.

EFFECTIVE DATE:  February 2, 2000.

FOR FURTHER INFORMATION CONTACT:  Robert J. Biggi, Director, Office of 
Surface Mining Reclamation and Enforcement, Harrisburg Field Office, 
Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market 
Streets, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036, 
Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Pennsylvania Program

    On July 31, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. You can find background information 
on the Pennsylvania program including the Secretary's findings, the 
disposition of comments, and a detailed explanation of the conditions 
of approval in the July 30, 1982, Federal Register (47 FR 33050). You 
can find later actions on conditions of approval and program amendments 
at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Submission of the Amendment

    By letter dated September 14, 1995 (Administrative Record Number PA 
837.01), Pennsylvania submitted an amendment to the Pennsylvania 
program. The amending language is contained in Pennsylvania House Bill 
1075 and was enacted into Pennsylvania law as Act 1994-114. The 
amendments changed Pennsylvania's Coal Refuse Disposal Act (of 
September 24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980 
(P.L. 807, No. 154)) to provide authorization for refuse disposal in 
areas previously affected by mining which contain pollutional 
discharges. We approved the amendments, with certain exceptions, on 
April 22, 1998 (63 FR 19802-19821). The April 22, 1998, notice 
contained seven required regulatory program amendments codified at 30 
CFR 938.16 paragraphs (vvv) through (bbbb). On June 15, 1998 (63 FR 
32615-32616), we corrected an inadvertent omission of a phrase at 30 
CFR 938.16 paragraphs (vvv) through (bbbb), concerning the required 
Pennsylvania regulatory program amendments published in the

[[Page 4883]]

April 22, 1998, Federal Register notice at pages 19820-19821.
    By letter dated May 22, 1998 (Administrative Record Number PA 
837.72) Pennsylvania responded to the required regulatory program 
amendments codified at 30 CFR 938.16 (vvv) through (bbbb) by submitting 
three items: (1) Written clarifications relating to each of the 
required regulatory program amendments; (2) The draft text of a notice 
to be published in the Pennsylvania Bulletin intended to address one of 
the required amendments; and (3) A legal opinion from the Pennsylvania 
Department of Environmental Protection (PADEP) legal counsel confirming 
the PADEP's authority to implement the necessary change.
    By letter dated July 15, 1998 (Administrative Record Number PA 
837.74) we responded to PADEP's May 22, 1998, letter and stated that 
the clarifications can only be incorporated into the approved 
Pennsylvania program through formal rulemaking.
    By letter dated August 17, 1998 (Administrative Record Number PA 
837.80), the PADEP requested that we process the PADEP's May 22, 1998, 
letter as a program amendment. We opened the 30-day public comment 
period on August 28, 1998 (63 FR 45973). The comment period closed on 
September 28, 1998. No one asked to speak at a public hearing, so none 
was held.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the Pennsylvania 
amendments.

1. Required Amendment Codified at 30 CFR 938.16(vvv)

    This required amendment provides that the State must clarify the 
meaning of the term ``excess soil and related materials'' as that term 
is used in the definition of ``coal refuse activities'' at section 
3(2.1) of the State's Coal Refuse Disposal Act. In response to the 
required amendment, the State provided the following clarification.

    The meaning of the term ``excess soil and related material'' as 
used in the definition ``coal refuse disposal activities'' in 
Section 3 of the Coal Refuse Disposal Control Act (CRDCA) is 
clarified to mean the rock, clay or other materials located 
immediately above or below a coal seam and which are extracted from 
a coal mine during the process of mining coal. The term does not 
include topsoil or subsoil. This clarification will be incorporated 
in regulations as they are developed.

    As explained above by the State, the term ``excess soil and related 
material'' is not inconsistent with the intent of the Federal 
definition of ``underground development waste'' found in the Federal 
regulations at 30 CFR 701.5. Therefore, we find that the use of the 
term ``excess soil and related materials'' does not render the 
Pennsylvania program less stringent and can be approved. We will remove 
the required program amendment when the clarification is incorporated 
in regulations and those regulations are approved by OSM.

2. Required Amendment Codified at 30 CFR 938.16(www)

    This required amendment concerns the application of the ``stream 
buffer zone rule'' at 30 CFR 816/817.57. The State responded and 
provided its explanation concerning this required amendment. However, 
OSM is assessing the impact of the stream buffer zone rule. This effort 
may ultimately result in changes that may affect Pennsylvania's program 
amendment. Therefore, we have decided to defer our decision on the 
State's proposal until the reassessment of the existing rule is 
complete.

3. Required Amendments Codified at 30 CFR 938.16(xxx) and (yyy)

    A. The required amendment at 30 CFR 938.16(xxx) says that the State 
shall amend the Pennsylvania program to clarify, in the regulations to 
be developed to implement the provisions of section 6.2 of the State's 
Coal Refuse Disposal Act (as is required by Section 3.2(b) of the Coal 
Refuse Disposal Act), that preexisting discharges that are encountered 
must be treated to the State effluent standards at Chapter 90, 
subchapter D at 90.102.
    In response to the required amendment at 30 CFR 938.16(xxx), the 
State provided the following clarification:

    The Department clarifies that preexisting discharges which are 
encoun-tered must be treated to the effluent standards of 25 Pa. 
Code Sec. 90.102. This clarification will be incorporated in 
regulations governing Section 6.2 of the CRDCA as they are 
developed.
    We find that the State's clarification, that under Section 6.2 of 
the Coal Refuse Disposal Act, preexisting discharges that are 
encountered must be treated to the State effluent standards at Chapter 
90, subchapter D at 90.102, is not inconsistent with SMCRA, and is 
consistent with the Federal regulations at 30 CFR 816/817.42. 
Therefore, we will remove the required program amendment at 30 CFR 
938.16(xxx) when the clarification is incorporated in regulations and 
those regulations are approved by OSM.
    B. The required amendment at 30 CFR 938.16(yyy) says that the State 
shall amend the Pennsylvania program to clarify that subsection 6.2(h) 
of the Coal Refuse Disposal Act pertains to preexisting discharges that 
are not encountered.
    In the April 22, 1998 Federal Register notice, we said that 
subsection 6.2(h) could be misinterpreted. Specifically, the language 
in the first sentence of subsection 6.2(h) which states that ``an 
operator required to treat preexisting discharges under subsection (g) 
will be allowed to discontinue treating * * *'' is unclear. Subsection 
6.2(g) pertains to both discharges that are encountered and those that 
are not encountered, and the treatment standards are different for 
each. We interpreted the language in the first sentence of section 
6.2(h) to pertain only to subsection 6.2(g)(1)(ii), which governs 
discharges that are not encountered. Therefore, we approved section 
6.2(h) to the extent that it provides that an operator may only 
discontinue treating preexisting discharges that are not encountered 
when the operator demonstrates that the ``baseline'' pollution load is 
no longer being exceeded. Preexisting discharges that are encountered 
must be treated to the State water quality standards at Chapter 90, 
subchapter D at 90.102 (63 FR 19810). We also established the required 
amendment at 30 CFR 938.16(yyy).
    In response to the required amendment at 30 CFR 938.16(yyy), the 
State provided the following clarification:

    The Department clarifies that subsection 6.2(h) of the CRDCA 
pertains to preexisting discharges which are not encountered. This 
clarification will be incorporated in regulations as they are 
developed.

    We find that the State's clarification, that subsection 6.2(h) of 
the CRDCA pertains to preexisting discharges which are not encountered, 
would be consistent with our interpretation of that provision as stated 
in the April 22, 1998, Federal Register notice.
    Therefore, we will remove the required program amendment at 30 CFR 
938.16(yyy) when the clarification is incorporated in regulations 
governing Section 6.2 of the CRDCA and those regulations are approved 
by OSM.

4. Required Amendment Codified at 30 CFR 938.16(zzz)

    The required amendment at 30 CFR 938.16(zzz) says that the State 
must amend the Pennsylvania program to be no less effective than 30 CFR

[[Page 4884]]

816.116(b)(5), by limiting the application of the revegetation 
standards under subsection 6.2(k) of the CRDCA to areas that were 
previously disturbed by mining and that were not reclaimed to the State 
reclamation standards.
    In the April 22, 1998, finding on subsection 6.2(k), we said that 
the State provision lacks a requirement found in 30 CFR 816(b)(5). 
Specifically, subsection 6.2(k) lacks the requirement that, to qualify 
for the revegetation standards for areas that were previously disturbed 
by mining, the area that was previously disturbed by mining must not 
have been reclaimed to the State's permanent program performance 
standards. To be no less effective than 30 CFR 816.116(b)(5), the State 
needs to limit the application of the standards at subsection 6.2(k) to 
areas that were previously disturbed by mining and that were not 
reclaimed to the State reclamation standards (63 FR 19811). In 
addition, we added the required amendment at 30 CFR 938.16(zzz).
    In response to the required amendment at 30 CFR 938.16(zzz), the 
State provided the following clarification:

    The Department clarifies that the revegetation standards of 
subsection 6.2(k) of the CRDCA are limited to areas previously 
disturbed by mining and which were not reclaimed to Pennsylvania's 
reclamation standards. This clarification will be incorporated in 
regulations as they are developed.

    We find that, if implemented as the State has indicated above, 
section 6.2(k) would be consistent with our approval of that provision 
as stated in the April 22, 1998, Federal Register notice. Therefore, we 
will remove the required program amendment at 30 CFR 938.16(zzz) when 
the clarification is incorporated in regulations governing Section 
6.2(k) of the CRDCA and those regulations are approved by OSM.

5. Required Amendment Codified at 30 CFR 938.16(aaaa)

    The required amendment at 30 CFR 938.16(aaaa) says that the State 
must amend the Pennsylvania program to clarify that under subsection 
6.2(l) of the CRDCA, a special authorization for coal refuse disposal 
operations will not be granted when such an authorization would result 
in the site being reclaimed to lesser standards than could be achieved 
if the moneys paid into the Fund, as a result of a prior forfeiture on 
the area, were used to reclaim the site to the standards approved in 
the original permit under which the bond moneys were forfeit.
    Section 6.2(l) of the CRDCA says that forfeited funds in the 
Surface Mining Conservation and Reclamation fund (Fund) must be applied 
as a credit to the bond required for a special authorization. In the 
April 22, 1998, Federal Register notice, we said that if any forfeited 
Fund moneys for a particular site are sufficient to perform all 
outstanding reclamation obligations for the site, then the site should 
not be reclaimed to lesser reclamation standards under a special 
authorization. Therefore, we approved section 6.2(l) to the extent that 
the State will not approve a special authorization when the 
authorization would result in the site being reclaimed to lesser 
standards than could be achieved if the forfeited bond monies were used 
to reclaim the site to the standards approved in the original permit 
under which the bond monies were forfeited (63 FR 19811). We also 
established the required amendment at 30 CFR 938.16(aaaa).
    In response to the required amendment at 30 CFR 938.16(aaaa), the 
State provided the following clarification:

    The Department clarifies that under subsection 6.2(l) of the 
CRDCA, a special authorization for coal refuse disposal operations 
will not be granted when such an authorization would result in the 
site being reclaimed to lesser standards than could be achieved if 
the monies paid into the Surface Mining Conservation and Reclamation 
Fund, as a result of a prior forfeiture on the area, were used to 
reclaim the site to the standards approved in the original permit 
under which the bond monies were forfeited. This clarification will 
be incorporated in regulations as they are developed.

    We find that if implemented as the State has indicated above, 
section 6.2(l) would be consistent with our approval of that provision 
as stated in the April 22, 1998, Federal Register notice. Therefore, we 
will remove the required program amendment at 30 CFR 938.16(aaaa) when 
the clarification is incorporated in regulations governing Section 
6.2(l) of the CRDCA and those regulations are approved by OSM.

6. Required Amendment Codified at 30 CFR 938.16(bbbb)

    The required amendment at 30 CFR 938.16(bbbb) says that the State 
must amend the Pennsylvania program by adding implementing rules no 
less effective than 30 CFR 785.13, and no less stringent than SMCRA 
section 711 and which clarify that experimental practices are only 
approved as part of the normal permit approval process and only for 
departures from the environmental protection performance standards, and 
that each experimental practice receive the approval of the Secretary.
    In the April 22, 1998, Federal Register, we approved section 6.3 of 
the CRDCA concerning experimental practices. However, section 6.3 is 
silent concerning the requirement to obtain approval from the Secretary 
for each experimental practice, and does not clarify that such 
practices are only approved as part of the normal permit approval 
process and only for departures from the environmental protection 
performance standards (63 FR 19812). Therefore, we established the 
required amendment at 30 CFR 938.16(bbbb).
    In response to the required amendment at 30 CFR 938.16(bbbb), the 
State provided the following clarification:

    The Department clarifies that the Department will implement 
Section 6.3 of the CRDCA in a manner no less effective than 30 CFR 
Sec. 785.13 and no less stringent than Section 711 of the Surface 
Mining Control and Reclamation Act and clarifies that experimental 
practices will only be approved as part of the normal permit 
approval process and only for departure from the environmental 
protection performance standards, and that each experimental 
practice must receive the approval of the Secretary of the United 
States Department of Interior. This clarification will be 
incorporated in regulations as they are developed.

    We find that if implemented as the State has indicated above, 
section 6.3 would be consistent with our approval of that provision as 
stated in the April 22, 1998, Federal Register notice. Therefore, we 
will remove the required program amendment at 30 CFR 938.16(bbbb) when 
the clarification is incorporated in regulations governing Section 6.3 
of the CRDCA and those regulations are approved by OSM.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Pennsylvania program. The U.S. 
Department of Labor, Mine Safety and Health Administration (MSHA) 
responded and stated that the amendment does not conflict with existing 
MSHA regulations.
    The U.S. Department of Agriculture, Natural Resources Conservation 
Service, and the U.S. Fish and Wildlife Service responded and commented 
on the State's response to the required amendment codified at 30 CFR 
938.16(www) concerning stream buffer

[[Page 4885]]

zones. As discussed above in Finding 2, we are deferring our decision 
on this provision. Therefore, we are not responding to these comments 
at this time. We will fully address the comments from these agencies 
when we render our final decision on this provision.

Public and State Agency Comments

    The following comments were received in response to the public 
comment period that closed on September 28, 1998. Two commenters 
provided general comments in support of the amendments. In addition, 
the commenters recommended that OSM reconsider its finding that the 
term ``significant'' in the Pennsylvania provision at section 6.1(h)(5) 
of Act 114 is less effective than the Federal requirements (see Finding 
2, above). As discussed above in Finding 2, we are deferring our 
decision on this provision. Therefore, we are not responding to the 
comments concerning the required amendment codified at 30 CFR 
938.16(www) at this time. We will fully address the comments from these 
commenters when we render our final decision on this provision.
    A commenter stated that OSM's requirement that the State clarify 
that preexisting discharges must be treated to effluent standards seems 
to contradict the advantage to the environment of utilizing previously 
impacted areas for refuse disposal. The Director disagrees with the 
commenter's assertion, because the CRDA does not limit the term 
``preexisting discharges'' to discharges caused by mining which 
occurred prior to SMCRA's effective date of August 3, 1977. Preexisting 
discharges which began after this date, and which are encountered by 
the present mining operation, must be treated to the effluent standards 
contained in Chapter 90, subchapter B at 90.102. Therefore, the 
required amendment at 30 CFR 938.16(xxx) will remain in place until 
this clarification is incorporated in regulations and those regulations 
are approved by OSM.
    One commenter submitted general comments on the Pennsylvania 
program but did not address the specific issues in this rulemaking. 
Therefore, those comments will not be addressed in this notice.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The 
Director has determined that EPA's concurrence is not required for this 
amendment, since changes to the State's regulations that relate to 
water quality standards must still be made before the required 
amendments at 30 CFR 938.16(www), (xxx) and (yyy) are satisfied. When 
the State submits these regulatory changes to OSM as a program 
amendment, OSM will seek EPA concurrence.
    On August 20, 1998, OSM solicited EPA's comments on the proposed 
amendment (Administrative Record No. PA-837.81). The EPA did not 
provide any comments.

V. Director's Decision

    Based on the above findings, the Director is approving, except as 
noted below, the proposed amendment as submitted by Pennsylvania on 
August 17, 1998.
    We are deferring our decision on the State's response to the 
required amendment codified at 30 CFR 938.16(www).
    The Federal regulations at 30 CFR Part 938, codifying decisions 
concerning the Pennsylvania program, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 23, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

[[Page 4886]]

PART 938--PENNSYLVANIA

    1. The authority citation for Part 938 continues to read as 
follows:

    Authority:  30 U.S.C. 1201 et seq.


    2. Section 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 938.15  Approval of regulatory program amendments.

* * * * *

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     Original amendment           Date of final
       submission date             publication      Citation/description
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       *                   *                  *                  *
                   *                  *                  *
August 17, 1998.............  February 2, 2000....  Letter from
                                                     Pennsylvania to OSM
                                                     dated August 17,
                                                     1998 (PA-837.80),
                                                     except a decision
                                                     on the required
                                                     amendment at 30 CFR
                                                     938.16(www) is
                                                     deferred.
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[FR Doc. 00-2269 Filed 2-1-00; 8:45 am]
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