[Federal Register Volume 67, Number 17 (Friday, January 25, 2002)]
[Proposed Rules]
[Pages 3633-3640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1945]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-135-FOR]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (the ``Pennsylvania program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Pennsylvania proposes revisions to rules about surface and ground 
water monitoring in order to satisfy a required program amendment at 30 
CFR 938.16(hh), and revisions to rules about coal refuse disposal to 
satisfy required program amendments at 30 CFR 938.16(vvv), (www), 
(xxx), (yyy), (zzz), (aaaa), and (bbbb). Additionally, Pennsylvania is 
submitting new rules concerning coal refuse disposal operations. 
Pennsylvania intends to revise its program to be consistent with the 
corresponding Federal regulations and SMCRA, clarify ambiguities, and 
provide additional safeguards.
    Finally, Pennsylvania requested we remove the required regulatory 
program amendment at 30 CFR 938.16(kk) (1) and (2). In this program 
amendment, we required Pennsylvania to correct cross-section references 
within the Pennsylvania Surface Mining Conservation and Reclamation Act 
(PA SMCRA).
    This document gives the times and locations that the Pennsylvania 
program and proposed amendments to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., e.s.t., February 25, 2002. If requested, we will hold a public 
hearing on the amendment on February 19, 2002. We will accept requests 
to speak at a hearing until 4:00 p.m., e.s.t. on February 11, 2002.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Beverly Brock, Acting Director, 
Harrisburg Field Office at the address listed below.
    You may review copies of the Pennsylvania program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Harrisburg Field Office.

Beverly Brock, Acting Director,Harrisburg Field Office,Office of 
Surface Mining Reclamation and Enforcement,Harrisburg Transportation 
Center, Third Floor, Suite 3C,4th and Market Streets,Harrisburg, 
Pennsylvania 17101,Telephone: (717) 782-4036.
J. Scott Roberts, Director,Bureau of Mining and 
Reclamation,Pennsylvania Department of Environmental Protection,Rachel 
Carson State Office Building,PO Box 8461,Harrisburg, Pennsylvania 
17105-8461,Telephone: (717) 787-5103.

FOR FURTHER INFORMATION CONTACT: Beverly Brock, Telephone: 717-782-
4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Pennsylvania program on July 30, 1982. You can find background 
information on the Pennsylvania program, including the Secretary's 
findings, the disposition of comments, and conditions of approval of 
the Pennsylvania program in the July 30, 1982, Federal Register (47 FR 
33050). You can also find later actions concerning Pennsylvania program 
and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Description of the Proposed Amendment

    By two letters, both dated December 20, 2001, Pennsylvania sent us 
proposed amendments to its program (administrative record Nos. PA 
881.00 and 837.101) under SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania 
sent the amendments in response to the required program amendments at 
30 CFR 938.16(hh), (vvv), (www), (xxx), (yyy), (zzz), (aaaa), and 
(bbbb) and to include changes made at its own initiative. The full text 
of the program amendment is available for you to read at the locations 
listed above under ADDRESSES. In a third letter dated November 16, 
2001, (administrative record No. PA 880.00) Pennsylvania sent us an 
explanation regarding citation of cross-references in PA SMCRA required 
by the program amendment at 30 CFR 938.16(kk). This letter is also 
available for you to read at the locations listed under ADDRESSES.
    In the first letter dated December 20, 2001, (administrative record 
No. PA 881.00) Pennsylvania notes that 30 CFR 938.16(hh) required it to 
amend 25 Pa. Code 89.59(a)(1) and (2) to be no less effective than 30 
CFR 784.14(h)(1), relating to ground water monitoring plans. 
Specifically, 30 CFR 938.16(hh) required ground water monitoring plans 
to specify that, at a minimum, the total dissolved solids or specific 
conductance, pH, total iron, total manganese and water levels shall be 
monitored and data submitted to Pennsylvania at least every three 
months for each monitoring location.
    In response to 30 CFR 938.16(hh) Pennsylvania submitted changes 
made to its regulations at 25 Pa. Code 89.59(a)(2), (3) and (b). The 
change in 25 Pa. Code 89.59(a)(2) was to delete the word 
``periodically'' from the first sentence and to add the following 
phrase to the end to the section:

    At a minimum, total dissolved solids or specific conductance 
corrected to 25 deg.C, pH, acidity, alkalinity, total iron, total 
manganese, sulfates and water levels shall be monitored and reported 
to the Department at least every 3 months for each monitoring 
location.

    The change Pennsylvania is proposing to 25 Pa. Code 89.59(a)(3) is 
to delete the last sentence from the section that reads, ``The 
Department will approve

[[Page 3634]]

the nature of data, frequency of collection, reporting requirements and 
the duration of the monitoring programs.'' Pennsylvania is proposing to 
add the following to the end of the section:

    Surface water shall be monitored for parameters that relate to 
the suitability of the surface water for current and approved 
postmining land uses and to the objectives for protection of the 
hydrologic balance as set forth in Sec. 89.36 (relating to 
protection of hydrologic balance). At a minimum, total dissolved 
solids or specific conductance corrected to 25 deg.C, total 
suspended solids, total iron, total manganese, acidity, alkalinity, 
pH, sulfates and flow shall be monitored and reported to the 
Department at least every 3 months for each monitoring location.

    Pennsylvania is also proposing to change 25 Pa. Code 89.59(b) by 
adding a sentence to the end of the section that reads, ``The 
Department may also require the operator to conduct monitoring and 
reporting more frequently than every 3 months and to monitor additional 
parameters beyond the minimum specified in this section.''
    In the second letter of December 20, 2001, (administrative record 
No. PA 837.101) Pennsylvania submitted changes to various sections of 
its rules in 25 Pa. Code Chapters 88 and 90. Some of the proposed 
changes were to respond to required amendments at 30 CFR 938.16(vvv), 
(www), (xxx), (yyy), (zzz), (aaaa) and (bbbb). Other changes included 
adding 25 Pa. Code 90.116(a) to clarify that the water supply 
replacement requirements of 25 Pa. Code 87.119, relating to water 
rights and replacement for surface mining activities, are applicable to 
coal refuse disposal activities and adding subchapters E, F, and G to 
Chapter 90.
    Changes to 25 Pa. Code Chapter 88 include the addition of 
references to 25 Pa. Code Chapter 90 to the first paragraph of 25 Pa. 
Code 88.281, replacing the word ``full'' with the phrase, ``the fill,'' 
in 25 Pa. Code 88.310(e), and the addition of subsections 25 Pa. Code 
88.310(j) and (k). The full text of subsections (j) and (k) is:

    (j) The system to prevent adverse impacts to the surface water 
and groundwater shall be constructed in accordance with design 
schematics, test results, descriptions, plans, maps, profiles or 
cross-sections approved in the permit and shall function to prevent 
adverse impacts to surface water and groundwater.
    (k) The system to prevent precipitation from coming in contact 
with the coal refuse shall be constructed in accordance with design 
schematics, test results, descriptions, plans, maps, profiles and 
cross-sections approved in the permit and shall function to prevent 
precipitation from contacting the coal refuse.
    (1) The system shall be installed as phases of the disposal area 
reach capacity, as specified in the permit, when the operation 
temporarily ceases for a period in excess of 90 days (unless the 
department approves a longer period, not to exceed 1 year) or when 
the operation permanently ceases.
    (2) The system shall be designed to allow for revegetation of 
the site in accordance with the standard of success under 
Sec. 88.330 (relating to revegetation: standards for successful 
revegetation) and for prevention of erosion.

    In addition, Pennsylvania is proposing to amend 25 Pa. Code 88.332 
by adding the following sentences to the end of subsection (a):

    The system for preventing precipitation from contacting the coal 
refuse shall be installed when the temporary cessation exceeds 90 
days. The department may approve a longer period, not to exceed 1 
year, under subsection (b).

    Numerous changes were proposed for 25 Pa. Code Chapter 90. 
Definitions for the terms ``coal refuse disposal,'' ``operator,'' and 
``public recreational impoundment'' were to 25 Pa. Code 90.1. The 
proposed definitions are:

    Coal refuse disposal--The storage, placement or disposal of coal 
refuse. The term includes engineered features integral to the 
placement of the coal refuse including relocations or diversions of 
stream segments contained within the proposed fill area and the 
construction of required systems to prevent adverse impacts to 
surface water and groundwater and to prevent precipitation from 
contacting the coal refuse.
    Operator--A person operating a coal refuse disposal area, or 
part thereof.
    Public recreational impoundment--A closed basin, naturally 
formed or artificially built, which is dammed or excavated for the 
retention of water and which is owned, rented or leased by the 
federal government, the commonwealth or a political subdivision of 
the commonwealth and which is used for swimming, boating, water 
skiing, hunting, fishing, skating or other similar activities.

    Section 90.5 titled, ``Site Selection and Permitting'' is proposed 
to be added. The full text of this section, as proposed, is:

90.5. Site Selection and Permitting

    (a) Prior to applying for a permit to conduct coal refuse 
disposal activities, the applicant shall comply with Subchapter E 
(relating to site selection). The department's technical guidance 
document number 563-2113-660, titled Coal Refuse Disposal--Site 
Selection, shall be used as guidance for selecting a coal refuse 
disposal site.
    (b) After the department has approved a site in accordance with 
Subchapter E, the applicant may apply for a permit for coal refuse 
disposal activities in accordance with Chapters 86 and 88 (relating 
to Surface and Underground Coal Mining: General; and Anthracite 
Coal) and this chapter.

    Pennsylvania is proposing numerous changes to section 25 Pa. Code 
90.12 including organizational changes, deletion of some portions of 
existing regulations and addition of new regulations. The section as 
proposed to be changed now reads:

90.12. Geology

    (a) The application shall include a description of the areal and 
structural geology within the proposed permit and adjacent area, 
including the lithology of the strata that influence the occurrence, 
availability, movement and quality of groundwater that may be 
affected by the coal refuse disposal. For lands within the proposed 
permit and adjacent areas, the applicant shall provide a description 
of the geology with complementing maps and cross sections and the 
results of test borings. The description shall include the strata 
down to and including any aquifer that may be affected. At a 
minimum, the description shall include:
    (1) Location and quality of subsurface water.
    (2) Depth, lithology and structure of near-surface bedrock.
    (3) Location, identification and status of mining and coal 
refuse disposal operations within or adjacent to the proposed permit 
area.
    (4) A description of any glacial, alluvial, or colluvial 
deposits or other unconsolidated deposits that are present within or 
beneath the proposed permit area, including their thickness and 
location.
    (5) A description of any mine workings that are present beneath 
the proposed permit area.
    (6) The attitude and characteristics of joints, cleats, fracture 
zones, and faults within the permit and adjacent areas.
    (7) The location and identification of all coal seam croplines 
within the permit area.
    (8) A description of the physical characteristics of soils 
within the permit area.
    (9) A description of aquifers that are present beneath the 
proposed permit area.
    (b) Maps, cross-sections, and geologic descriptions required by 
this section shall be prepared and certified by a qualified 
registered professional geologist.

    Pennsylvania is proposing to revise section 90.13(2) to read as 
follows:

    (2) Other information on the baseline hydrogeologic properties 
of the groundwater system shall be included with the application. 
The Department may require information on indicator parameters such 
as pumping test, lithologic and piezometer data or that other 
appropriate information be provided. The application shall include a 
description of the groundwater flow system as it relates to the 
design and operation of the proposed groundwater and surface water 
protection system as described in Sec. 90.50 (relating to Design 
Criteria: Groundwater and Surface Water Protection System).

    Pennsylvania is proposing some organizational changes to 25 Pa. 
Code 90.34(a). The section, as proposed, reads:


[[Page 3635]]


    (a) An application shall contain a description of the proposed 
land use, following reclamation, of the lands to be affected within 
the proposed permit area by coal refuse disposal activities, 
including a discussion of the utility and capacity of the reclaimed 
land to support a variety of alternative uses, and the relationship 
of the proposed use to existing land use policies and plans. This 
description shall explain the following:
    (1) How the proposed postdisposal land use is to be achieved, 
and the necessary support activities which may be needed to achieve 
the proposed land use.
    (2) The detailed management plan to be implemented when 
pastureland is the postdisposal land use.
    (3) Materials needed for approval of the alternative use under 
Sec. 90.166 (relating to postdisposal land use).
    (4) The consideration given to making all of the proposed coal 
refuse disposal activities consistent with surface owner plans and 
applicable Commonwealth and local land use plans and programs.

    Pennsylvania is proposing to add a phrase to the first sentence of 
section 25 Pa. Code 90.45. The sentence now reads, ``A person who 
conducts, or intends to conduct, coal refuse disposal activities on 
prime farmlands historically used for cropland, in accordance with 
Subchapter E (relating to site selection), shall submit a plan, as part 
of the permit application, for the disposal and restoration of the 
land.''
    Pennsylvania is proposing to add section 25 Pa. Code 90.49. The 
section, as proposed, reads:

90.49. Stream Buffer Zone Variance

    (a) Stream buffer zone restriction. Coal refuse disposal may not 
occur within 100 feet (30.48 meters) of the bank of a stream. The 
department may grant a variance for disposal of coal refuse under 
subsection (c) if consistent with subchapter E (relating to site 
selection).
    (b) Compliance required. Surface mining operations supporting 
coal refuse disposal shall comply with Sec. 86.102(12) (relating to 
areas where mining is prohibited or limited).
    (c) Variance. The department may grant a variance from the 100-
foot (30.48-meter) stream buffer zone to dispose of coal refuse and 
to relocate or divert streams in the 100-foot (30.48-meter) stream 
buffer zone. The stream buffer zone is the area within 100 feet 
(30.48 meters) measured horizontally from the bank of any stream.
    (1) Stream buffer zone variances will only be granted if the 
operator demonstrates to the satisfaction of the department that, as 
a result of the variance, coal refuse disposal will not adversely 
affect water quality and quantity, or other environmental resources 
of the stream and will not cause or contribute to the violation of 
applicable state or federal water quality standards.
    (2) Prior to granting a variance, the operator shall be required 
to give public notice of the application in two newspapers of 
general circulation in the area once a week for two successive 
weeks.
    (i) If a person files an exception to the proposed variance 
within 20 days of the last publication of the notice, the department 
will conduct a public hearing with respect to the application within 
30 days of receipt of the exception.
    (ii) The department will also consider information or comments 
submitted by the Fish and Boat Commission prior to taking action on 
a variance request.
    (3) The variance will be issued as a written order specifying 
the methods and techniques that shall be employed to prevent or 
mitigate adverse impacts. Mitigation can include, but is not limited 
to, compensatory restoration and enhancements of nearby streams or 
stream segments.

    Pennsylvania is proposing to add 25 Pa. Code 90.5. The full text of 
the section, as proposed, is:

90.50. Design Criteria: Groundwater and Surface Water Protection System

    (a) The application shall include a description of the system 
that will be installed to prevent adverse impacts to groundwater and 
surface water. The description shall include maps, plans, and other 
information necessary to evaluate the design of the system.
    (b) The application shall include a description of the system 
that will be installed to prevent precipitation from coming into 
contact with the coal refuse. The description shall include maps, 
plans, and other information necessary to evaluate the design of the 
system. The coal refuse disposal operation shall be designed in 
phases to minimize the amount of time the entire coal refuse area is 
exposed to precipitation prior to the installation of the system to 
prevent precipitation from contacting the coal refuse. The 
application shall describe the design of the system for preventing 
precipitation from contacting coal refuse and how the system will be 
installed in accordance with the following:
    (1) During routine coal refuse disposal as phases of the coal 
refuse disposal area reach capacity.
    (2) During periods of temporary cessation as directed under 
Sec. 90.167(d) (relating to cessation of operations: temporary).
    (3) When the operation permanently ceases.
    (c) The department's technical guidance document number 563-
2112-656, titled Liners--Impoundments, Stockpiles, and Coal Refuse 
Disposal Areas, shall be used as guidance for designing coal refuse 
disposal sites incorporating earthen, admixed or synthetic liners or 
caps for preventing adverse impacts to groundwater and surface water 
and for preventing precipitation from contacting coal refuse.
    (d) The application shall include a description of the measures 
to be taken to ensure the long-term functionality of the systems 
described in subsections (a) and (b). The description shall address 
the site's susceptibility to mine subsidence and the potential 
impacts of mine subsidence on the systems described in subsections 
(a) and (b). The description shall also address the potential for 
deterioration of components of the systems described in subsections 
(a) and (b) due to other physical or chemical processes including 
but not limited to attack from sulfate-laden or acidic groundwater 
and/or leachate.

    In section 25 Pa. Code 90.101(b), Pennsylvania is proposing to 
replace the phrase, ``the water,'' with the phrase, ``groundwater and 
surface water.''
    Pennsylvania is proposing to add section 25 Pa. Code 90.116a. This 
section reads:

90.116a. Hydrologic Balance: Water Rights and Replacement

    An operator who conducts coal refuse disposal and adversely 
affects a water supply by contamination, pollution, diminution, or 
interruption shall comply with Sec. 87.119 (relating to water rights 
and replacement).

    In 25 Pa. Code 90.122, Pennsylvania is proposing to delete former 
subsections (e) and (g). Under the proposed amendment, former 
subsection (f) is now subsection (e) and former subsection (h) is now 
subsection (f). In addition, Pennsylvania has submitted new subsections 
(g) and (h). The new subsections are:

    (g) The disposal area shall be provided with a system to prevent 
adverse impacts to the surface water and groundwater. The system 
shall be constructed in accordance with design schematics, test 
results, descriptions, plans, maps, profiles or cross-sections 
approved in the permit and shall function to prevent adverse impacts 
to surface water and groundwater.
    (h) When a phase of the coal refuse disposal area reaches 
capacity, the operator shall install a system to prevent 
precipitation from coming in contact with the coal refuse in the 
completed phase.
    (1) The system shall be constructed in accordance with design 
schematics, test results, descriptions, plans, maps, profiles or 
cross-sections approved in the permit.
    (2) During normal coal refuse disposal, the system is not 
required to prevent precipitation from coming in contact with the 
coal refuse being placed in phases of the operation that have not 
reached capacity.
    (3) The system shall be designed to allow for revegetation of 
the site in accordance with the standard of success under 
Sec. 90.159 (relating to revegetation: standards for successful 
revegetation) and for the prevention of erosion.
    (4) If the operator temporarily ceases operation of the coal 
refuse disposal area for a period in excess of 90 days (unless the 
department, for reasons of labor strike or business necessity, 
approves a longer period not to exceed one year) or when the 
operation permanently ceases, the operator shall install the system 
for preventing precipitation from contacting the coal refuse.

    In 25 Pa. Code 90.167, Pennsylvania is proposing to change 
``shall'' to ``may'' in section (b) and to add new subsection (d). 
Subsection (d) reads:

    The operator shall install the system for preventing 
precipitation from contacting the

[[Page 3636]]

coal refuse when the temporary cessation exceeds 90 days. The 
department may approve a longer period, not to exceed 1 year, for 
reasons of a labor strike or business necessity.

    Finally, Pennsylvania is proposing to add three new subchapters to 
25 Pa. Code Chapter 90. The new subchapters are E. Site Selection, F. 
Coal Refuse Disposal Activities on Areas With Preexisting Pollutional 
Discharges, and G. Experimental Practices. The full text of these new 
subchapters follow:

Subchapter E. Site Selection

Section 90.201. Definitions

    The following words and terms, when used in this subchapter, 
have the following meanings, unless the context clearly indicates 
otherwise.
    Preferred Site--A watershed polluted by acid mine drainage; a 
watershed containing an unreclaimed surface mine but which has no 
mining discharge; a watershed containing an unreclaimed surface mine 
with discharges that could be improved by the proposed coal refuse 
disposal operation; unreclaimed coal refuse disposal piles that 
could be improved by the proposed coal refuse disposal operation; or 
other unreclaimed areas previously affected by mining activities.
    Search area--The geographic area within a 1-mile radius of an 
existing coal preparation facility or the 25-square-mile geographic 
area encompassing a proposed coal preparation facility
    Selected Site--A location selected by the applicant and approved 
by the Department under this Subchapter for which the applicant can 
then apply for a permit to conduct coal refuse disposal activities.

Section 90.202. General Requirements

    (a) A preferred site shall be used for coal refuse disposal 
unless the applicant demonstrates to the Department that an 
alternate site is more suitable based upon engineering, geology, 
economics, transportation systems, and social factors and is not 
adverse to the public interest.
    (b) The applicant is required to determine whether the search 
area contains a preferred site.
    (1) For a new coal refuse disposal area that will support an 
existing coal preparation facility, the applicant shall examine the 
geographic area within a 1-mile radius of the existing coal 
preparation facility.
    (2) For a proposed coal refuse disposal area that will support a 
proposed coal preparation facility, the applicant shall examine a 
25-square-mile geographic area encompassing the proposed coal 
preparation facility. In defining the 25-square-mile area, 
consideration shall be given to environmental, technical, 
transportation, economic, and social factors where applicable.
    (c) If there are no preferred sites located within the search 
area, the applicant must conduct a comparative analysis of the 
potential coal refuse disposal sites in accordance with 
Sec. 90.204(b) (relating to proposing an alternate site).
    (d) The Department will not approve a site proposed by the 
applicant for coal refuse disposal activities when the Department 
finds that the adverse environmental impacts of using the site for 
coal refuse disposal activities would clearly outweigh the public 
benefits.
    (e) Except on preferred sites, the Department shall not approve 
coal refuse disposal on or within any of the following areas:
    (1) Prime Farmlands.
    (2) An exceptional value watershed as defined under Chapter 93 
(relating to water quality standards).
    (3) Sites known to contain threatened or endangered animals 
listed exclusively under the Commonwealth's protection programs.
    (4) An area that is hydrologically connected to and contributes 
at least 5% of the drainage to wetlands designated as exceptional 
value under Chapter 105 (relating to dam safety and waterway 
management) unless a larger percentage contribution is authorized by 
the Department after consultation with the Fish and Boat Commission.
    (5) A watershed less than 4 square miles in area upstream of the 
intake of a public water supply.
    (6) A watershed less than 4 square miles in area upstream of the 
upstream limit of a public recreational impoundment.
    (7) Sites known to contain Federally listed threatened or 
endangered plants or animals. At preferred sites known to contain 
Federally listed threatened or endangered species, approval will be 
granted only where the Department concludes and the United States 
Fish and Wildlife Service concurs that the proposed activity is not 
likely to adversely affect Federally listed threatened or endangered 
species or result in the take of Federally listed threatened or 
endangered species in violation of section 9 of the Endangered 
Species Act of 1973 (16 U.S.C.A. 1538).
    (f) As part of the site selection process, an applicant may 
request approval for more than one site. The Department will 
evaluate each site proposed for coal refuse disposal and, if the 
Department finds that a proposed site meets the requirements of this 
subchapter, it will designate it as an approved site. The applicant 
will then have the option of choosing a selected site from among the 
approved sites and submitting an application for coal refuse 
disposal for that site.

Section 90.203. Proposing a Preferred Site

    If the applicant proposes to use a preferred site, the 
Department will approve the proposed site subject to Sec. 90.202(c) 
(relating to general requirements) provided the applicant 
demonstrates that the attendant adverse environmental impacts will 
not clearly outweigh the public benefits.

Section 90.204. Proposing an Alternate Site

    (a) Where a preferred site(s) exists within the search area, but 
the applicant proposes an alternate site, the applicant shall:
    (1) Demonstrate that the alternate site is more suitable, using 
criteria in Sec. 90.202(a) (relating to general requirements), than 
all preferred sites within the search area.
    (2) Identify other alternate sites considered and provide the 
basis for the rejection of these sites.
    (3) Based on reasonably available data, demonstrate that it is 
the most suitable site based on environmental, economic, technical, 
transportation and social factors.
    (b) If a preferred site does not exist within the search area, 
the applicant shall:
    (1) Identify all the sites considered within the search area and 
provide the basis for their consideration.
    (2) Provide the basis for the rejection of considered sites.
    (3) Based on reasonably available data, demonstrate to the 
Department that the proposed site is the most suitable based on 
environmental, economic, technical, transportation, and social 
factors.

Section 90.205. Alternatives Analysis

    The alternatives analysis required by Secs. 90.202(b) and 90.204 
(relating to general requirements; and proposing an alternate site) 
satisfies the requirement for an alternatives analysis under the Dam 
Safety and Encroachments Act (32 P.S. 693.1-693.27) and regulations 
promulgated thereunder. See Chapter 105 (relating to dam safety and 
waterway management).

Section 90.206. Disapproval of a Proposed Site

    If the Department disapproves the applicant's proposed site, the 
applicant may submit a new proposal supporting the selection of 
another site located either within or outside of the search area.

Section 90.207. Approval of a Selected Site

    Department approval of a selected site does not indicate the 
Department will approve an application for coal refuse disposal 
activities for the selected site.

Subchapter F. Coal Refuse Disposal Activities on Areas With Preexisting 
Pollutional Discharges

Section 90.301. Scope

    (a) This subchapter specifies procedures and rules applicable to 
those who seek authorization to engage in coal refuse disposal 
activities on an area on which there are preexisting pollutional 
discharges resulting from previous mining and describes the terms 
and conditions under which the Department may release bonds to 
operators who have received authorization.
    (b) Chapter 86 (relating to surface and underground coal mining: 
general) and Subchapters A-D apply to authorizations to mine areas 
with preexisting pollutional discharges except as specifically 
modified by this subchapter.

Section 90.302. Definitions

    The following words and terms, when used in this subchapter, 
have the following meanings, unless the context clearly indicates 
otherwise:
    Abatement Plan--Any individual technique or combination of 
techniques, the implementation of which will result in reduction of 
the base line pollution load. Abatement techniques include but are 
not limited to: Addition of alkaline material, special plans for 
managing toxic and acid-

[[Page 3637]]

forming material, regrading, revegetation and relocating coal refuse 
to a coal refuse disposal area that includes systems to prevent 
adverse impacts to surface and groundwater and to prevent 
precipitation from contacting the coal refuse.
    Actual Improvement--The reduction of the baseline pollution load 
resulting from the implementation of the approved abatement plan; 
except that any reduction of the baseline pollution load achieved by 
water treatment may not be considered as actual improvement 
provided, however, that treatment approved by the Department of the 
coal refuse before, during or after placement in the coal refuse 
disposal area shall not be considered to be water treatment.
    Baseline Pollution Load--The characterization of the pollutional 
material being discharged from or on the pollution abatement area, 
described in terms of mass discharge for each parameter deemed 
relevant by the Department, including seasonal variations and 
variations in response to precipitation events. The Department will 
establish in each authorization the specific parameters it deems 
relevant for the baseline pollution load, including, at a minimum, 
iron and acid loadings.
    Best Professional Judgment--The highest quality technical 
opinion forming the basis for the terms and conditions of the 
treatment level required after consideration of all reasonably 
available and pertinent data. The treatment levels shall be 
established by the Department under sections 301 and 402 of the 
Federal Water Pollution Control Act (33 U.S.C.A. 1311 and 1342).
    Best Technology--Measures and practices which will abate or 
ameliorate, to the maximum extent possible, discharges from or on 
the pollution abatement area. These measures include engineering, 
geochemical or other applicable practices.
    Coal Refuse Disposal Activities--The storage, dumping or 
disposal of any waste coal, rock, shale, slurry, culm, gob, boney, 
slate, clay, underground development wastes, coal processing wastes, 
excess soil and related materials, associated with or near a coal 
seam, that are either brought above ground or otherwise removed from 
a coal mine in the process of mining coal or are separated from coal 
during the cleaning or preparation operations. The term shall not 
include the removal or storage of overburden from surface mining 
activities.
    Excess Soil and Related Material--Rock, clay or other material 
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.
    Pollution Abatement Area--The part of the permit area that is 
causing or contributing to the baseline pollution load. It shall 
include adjacent and nearby areas that must be affected to bring 
about significant improvements of the baseline pollution load and 
may include the immediate locations of the discharges.

Section 90.303. Applicability

    (a) Authorization may be granted under this subchapter when the 
authorization is part of the following:
    (1) A permit issued after February 6, 1995, but only if the 
authorization request is made during one of the following periods:
    (i) At the time of the submittal of the permit application for 
the coal refuse disposal activities, including the proposed 
pollution abatement area.
    (ii) Prior to a Department decision to issue or deny that 
permit.
    (2) A permit revision under Sec. 86.52 (relating to permit 
revisions), but only if the operator affirmatively demonstrates to 
the satisfaction of the Department that:
    (i) The operator has discovered pollutional discharges within 
the permit area that came into existence after its permit 
application was approved.
    (ii) The operator has not caused or contributed to the 
pollutional discharges.
    (iii) The proposed pollution abatement area is not 
hydrologically connected to an area where coal refuse disposal 
activities have been conducted under the permit.
    (iv) The operator has not affected the proposed pollution 
abatement area by coal refuse disposal activities.
    (v) The Department has not granted a bonding authorization and 
mining approval for the area under Sec. 86.37(b) (relating to 
criteria for permit approval or denial).
    (b) Notwithstanding subsection (a), no authorization may be 
granted under this subchapter for repermitting under Secs. 86.12 and 
86.14 (relating to continued operation under interim permits; and 
permit application filing deadlines), permit renewals under 
Sec. 86.55 (relating to permit renewals: general requirements) or 
permit transfers under Sec. 86.56 (relating to transfer of permit).

Section 90.304. Application for Authorization

    (a) An operator who requests authorization under this Subchapter 
shall comply with the permit application requirements of Chapter 86 
(relating to surface and underground coal mining: general) and 
Subchapters A-D, except as specifically modified by this subchapter. 
The operator shall also:
    (1) Delineate on a map the proposed pollution abatement area, 
including the location of the preexisting discharges.
    (2) Provide a description of the hydrologic balance for the 
proposed pollution abatement area that includes:
    (i) Results of a detailed water quality and quantity monitoring 
program, including seasonal variations, variations in response to 
precipitation events and modeled baseline pollution loads using this 
monitoring program.
    (ii) Monitoring for pH, alkalinity, acidity, total iron, total 
manganese, aluminum, sulfates, total suspended solids and other 
water quality parameters the Department deems relevant.
    (3) Provide a description of the abatement plan that represents 
best technology and includes the following:
    (i) Plans, cross-sections and schematic drawings describing the 
abatement plan proposed to be implemented.
    (ii) A description and explanation of the range of abatement 
level that is anticipated to be achieved, costs and each step in the 
proposed abatement plan.
    (iii) A description of the standard of success for revegetation 
necessary to ensure success of the abatement plan.
    (b) The operator seeking this authorization shall continue the 
water quality and quantity monitoring program required by subsection 
(a)(2) after making the authorization request. The operator shall 
submit the results of this continuing monitoring program to the 
Department on a monthly basis until a decision on the authorization 
request is made.

Section 90.305. Application Approval or Denial

    (a) Authorization may not be granted under this subchapter 
unless the operator seeking the authorization affirmatively 
demonstrates the following to the satisfaction of the Department on 
the basis of information set forth in the application:
    (1) Neither the operator, nor an officer, principal shareholder, 
agent, partner, associate, parent corporation, subsidiary or 
affiliate, sister corporation, contractor or subcontractor, or a 
related party as defined in Sec. 86.1 (relating to definitions) has 
either of the following:
    (i) Legal responsibility or liability as an operator for 
treating the water pollution discharges from or on the proposed 
pollution abatement area.
    (ii) Statutory responsibility or liability for reclaiming the 
proposed pollution abatement area.
    (2) The proposed abatement plan will result in significant 
reduction of the baseline pollution load and represents best 
technology.
    (3) The land within the proposed pollution abatement area can be 
reclaimed.
    (4) The coal refuse disposal activities on the proposed 
pollution abatement area will not cause additional surface water 
pollution or groundwater degradation.
    (5) The standard of success for revegetation will be achieved. 
The standard of success for revegetation for sites previously 
reclaimed to the standards of Chapters 87, 88 and 90 shall be the 
standards set forth in Sec. 90.159 (relating to revegetation: 
standards for successful revegetation). The standard of success for 
revegetation for sites not previously reclaimed to the standards of 
Chapters 87, 88 and 90 shall be, at a minimum, the following, 
provided the site is not a bond forfeiture site where the forfeited 
money paid into the fund is sufficient to reclaim the forfeited site 
to the applicable standards:
    (i) A ground cover of living plants not less than can be 
supported by the best available topsoil or other suitable material 
in the reaffected area.
    (ii) A ground cover no less than that existing before 
disturbance of the area by coal refuse disposal activities.
    (iii) Adequate vegetation to control erosion. Vegetation may be 
no less than that necessary to ensure the success of the abatement 
plan.
    (6) The coal refuse disposal activities on permitted areas other 
than the proposed pollution abatement area will not cause surface 
water pollution or groundwater degradation.
    (7) Requirements of Sec. 86.37(a) (relating to criteria for 
permit approval or denial) that are consistent with this section 
have been met.

[[Page 3638]]

    (b) An authorization may be denied under this subchapter if 
granting the authorization will, or is likely to, affect a legal 
responsibility or liability under The Clean Streams Law (35 P.S. 
691.1-691.1001), the Surface Mining Conservation and Reclamation Act 
(52 P.S. 1396.1-1396.19a), Chapter 86 (relating to surface and 
underground coal mining: general) or Subchapters A-D, for the 
proposed pollution abatement area or other areas or discharges in 
the vicinity of the proposed pollution abatement area.
    (c) Authorization may not be granted under this subchapter 
unless there are one or more preexisting discharges from or on the 
pollution abatement area.
    (d) The authorization allowed under this subchapter is only for 
the pollution abatement area and does not apply to other areas of 
the permit.

Section 90.306. Operational Requirements

    (a) An operator who receives an authorization under this 
subchapter shall comply with the requirements of Chapter 86 
(relating to surface and underground coal mining: general) and 
Subchapters A-D except as specifically modified by this subchapter. 
The operator shall also:
    (1) Implement the approved water quality and quantity monitoring 
program for the pollution abatement area until the requirements of 
Sec. 90.309 (relating to criteria and schedule for release of bonds 
on pollution abatement areas) are met.
    (2) Implement the approved abatement plan.
    (3) Notify the Department immediately prior to the completion of 
each step of the abatement plan.
    (4) Provide a progress report to the Department within 30 days 
after the completion of each step of the abatement program that 
includes a statement signed by the operator, and if required by the 
Department, a statement signed by the supervising engineer, that all 
work has been performed in accordance with the terms and conditions 
of the pollution abatement authorization, the approved maps, plans, 
profiles and specifications.

Section 90.307. Treatment of Discharges

    (a) Except for preexisting discharges that are not encountered 
during coal refuse disposal activities or the implementation of the 
abatement plan, the operator shall comply with Sec. 90.102 (relating 
to hydrologic balance: effluent standards).
    (b) The operator shall treat the preexisting discharges that are 
not encountered during coal refuse disposal activities or 
implementation of the abatement plan to comply with the effluent 
limitations established by best professional judgment. The effluent 
limitations established by best professional judgment may not be 
less than the baseline pollution load. If the baseline pollution 
load, when expressed as a concentration for a specific parameter, 
satisfies the effluent limitation in Sec. 90.102 for that parameter, 
the operator shall treat the preexisting discharge for that 
parameter to comply with either effluent limitations established by 
best professional judgment or the effluent limitations in 
Sec. 90.102.
    (c) For purposes of subsections (a) and (b), the term 
encountered may not be construed to mean diversions of surface water 
and shallow groundwater flow from areas undisturbed by the 
implementation of the abatement plan that would otherwise drain into 
the affected area, as long as the diversions are designed, operated 
and maintained under Sec. 90.104 (b)-(h) (relating to hydrologic 
balance: diversions).
    (d) An operator required to treat preexisting discharges will be 
allowed to discontinue treating the discharges under subsection (b) 
when the operator affirmatively demonstrates the following to the 
Department's satisfaction:
    (1) The preexisting discharges are meeting the effluent 
limitations established by subsection (b) as shown by groundwater 
and surface water monitoring conducted by the operator or the 
Department.
    (2) Coal refuse disposal activities under the permit--including 
the pollution abatement area--are being or were conducted under the 
requirements of the permit and the authorization, and Chapter 86 
(relating to surface and underground mining: general) and this 
chapter except as specifically modified by this subchapter.
    (3) The operator has implemented each step of the abatement plan 
as approved in the authorization.
    (4) The operator did not cause or allow additional surface water 
pollution or groundwater degradation by reaffecting the pollution 
abatement area.
    (e) If after discontinuance of treatment of discharges under 
subsection (d) the discharges fail to meet the effluent limitations 
established by subsection (b), the operator shall reinstitute 
treatment of the discharges under subsection (b). An operator who 
reinstitutes treatment under this subsection will be allowed to 
discontinue treatment if the requirements of subsection (d) are met.
    (f) Discontinuance of treatment under subsection (d) may not be 
deemed or construed to be or to authorize a release of bond under 
Sec. 90.309 (relating to criteria and schedule for release of bonds 
on pollution abatement areas).

Section 90.308. Request for Bond Release

    Sections 86.172(c) and 90.309 (relating to criteria for release 
of bond; and criteria and schedule for release of bonds on pollution 
abatement areas) apply to the release of bonds for pollution 
abatement areas authorized by this subchapter. Section 86.172(a), 
(b) and (d) shall not be applicable to the release of bonds.

Section 90.309. Criteria and Schedule for Release of Bonds on Pollution 
Abatement Areas

    (a) The Department will release up to 50% of the amount of bond 
for the authorized pollution abatement area if the applicant 
demonstrates and the Department finds the following:
    (1) The coal refuse disposal activities were conducted on the 
permit area, including the pollution abatement area, under the 
requirements of the permit and the authorization, Chapter 86 
(relating to surface and underground mining: general) and this 
chapter except as specifically modified by this subchapter.
    (2) The operator has satisfactorily completed backfilling, 
grading, installing the water impermeable cover and drainage control 
in accordance with the approved reclamation plan.
    (3) The operator has properly implemented each step of the 
pollution abatement plan approved and authorized under this 
subchapter.
    (4) The operator has not caused degradation of the baseline 
pollution load at any time during the 6 months prior to the 
submittal of the request for bond release under this subsection and 
until the bond release is approved as shown by all groundwater and 
surface water monitoring conducted by the permittee under 
Sec. 90.306(a)(1) (relating to operational requirements) or 
conducted by the Department.
    (5) The operator has not caused or contributed to surface water 
pollution or groundwater degradation by reaffecting the pollution 
abatement area.
    (b) The Department will release up to an additional 35% of the 
amount of bond for the authorized pollution abatement area but 
retain an amount sufficient to cover the cost to the Department of 
reestablishing vegetation if completed by a third party if the 
operator demonstrates and the Department finds the following:
    (1) The operator has replaced the topsoil or material conserved 
under Sec. 90.97 (relating to topsoil: removal), completed final 
grading, planting and established revegetation under the approved 
reclamation plan and achieved the standards of success for 
revegetation in Sec. 90.305(a)(5) (relating to application approval 
or denial).
    (2) The operator has not caused or contributed to groundwater or 
surface water pollution by reaffecting the pollution abatement area.
    (3) The operator has achieved the following standards:
    (i) Achieved the actual improvement of the baseline pollution 
load described in the approved abatement plan as shown by 
groundwater and surface water monitoring conducted by the permittee 
for the time provided in the abatement plan after completion of 
backfilling, final grading, drainage control, topsoiling and 
establishment of revegetation to achieve the standard for success in 
Sec. 90.305(a)(5).
    (ii) Achieved the following:
    (A) At a minimum has not caused degradation of the baseline 
pollution load as shown by groundwater and surface water monitoring 
conducted by the operator or the Department for one of the 
following:
    (I) For a period of 12 months from the date of initial bond 
release under subsection (a), if backfilling, final grading, 
drainage control, placement of impermeable cover, topsoiling and 
establishment of revegetation to achieve the standard of success for 
revegetation in Sec. 90.305(a)(5) have been completed.
    (II) If treatment has been initiated at any time after initial 
bond release under subsection (a) and Sec. 90.307(e) (relating to 
treatment of discharges), for 12 months from the date of 
discontinuance of treatment under

[[Page 3639]]

Sec. 90.307(d), if backfilling, final grading, drainage control, 
placement of impermeable cover, topsoiling and establishment of 
revegetation to achieve the standard of success for revegetation in 
Sec. 90.305(a)(5) have been completed.
    (B) Conducted all the measures provided in the approved 
abatement plan and additional measures specified by the Department 
in writing at the time of initial bond release under subsection (a) 
of this section for the area requested for bond release.
    (C) Caused aesthetic or other environmental improvements and the 
elimination of public health and safety problems by engaging in coal 
refuse disposal activities and reaffecting the pollution abatement 
area.
    (D) Stabilized the pollution abatement area.
    (c) The Department will release the remaining portion of the 
amount of bond on the authorized pollution abatement area if the 
operator demonstrates and the Department finds the following:
    (1) The operator has successfully completed the approved 
abatement and reclamation plans, and the pollution abatement area is 
capable of supporting the postdisposal land use approved under 
Sec. 90.166 (relating to postdisposal land use).
    (2) The operator has complied with the permit and the 
authorization, Chapter 86 and this chapter, except as specifically 
modified by this subchapter.
    (3) The operator has not caused degradation of the baseline 
pollution load from the time of bond release under subsection (b) 
or, if treatment has been initiated after bond release under 
subsection (b) in accordance with Sec. 90.307(e) for 5 years from 
the discontinuance of treatment under Sec. 90.307(d).
    (4) The applicable liability period has expired under 
Sec. 86.151 (relating to period of liability).

Subchapter G. Experimental Practices

Section 90.401. General

    (a) To encourage advances in coal refuse disposal practices, 
coal refuse site reclamation, and advances in technology or 
practices that will enhance environmental protection with respect to 
coal refuse disposal activities, the Department may grant permits 
approving experimental practices and demonstration projects. The 
Department may grant these permits under the following 
circumstances:
    (1) The environmental protection provided will be potentially 
more protective or at least as protective as required by this 
chapter, the Coal Refuse Disposal Control Act (52 P.S. Secs. 30.51 
30.66) and Chapter 86 (relating to surface and underground coal 
mining: general).
    (2) The coal refuse disposal activities approved under the 
permits are not larger or more numerous than necessary to determine 
the effectiveness and economic feasibility of the experimental 
practices or demonstration projects.
    (3) The experimental practices or demonstration projects do not 
reduce the protection afforded public health and safety below that 
provided by this chapter, the Coal Refuse Disposal Control Act and 
Chapter 86.
    (b) Experimental practice permits issued under this subchapter 
shall meet all the provisions, standards, and information 
requirements of the 30 CFR 785.13 (relating to experimental 
practices mining).

    In the letter of November 16, 2001, (administrative record No. PA 
880.00) Pennsylvania notes that 30 CFR 938.16(kk) required it to amend 
the references contained in sections 3.1(c) and 3.1(d) of PA SMCRA. The 
condition requires the cross-reference to section 4.2(f) in section 
3.1(c) be replaced with section 4b(f) and the cross reference to 
section 18.6 in section 3.1(d) be replaced with section 24.
    Pennsylvania explained that sections 3.1(c) and 3.1(d) of PA SMCRA 
are part of a numbering system used by the Pennsylvania Legislative 
Reference Bureau. Likewise the cross-referenced sections 4.2(f) and 
18.6 are also Legislative Reference Bureau numbering. Section 4b(f) is 
part of a numbering system used in Purdon's Pennsylvania Statutes 
Annotated (Purdon's). The complete number for section 4(b)(f) in 
Purdon's is 52 P.S. 1396.4b(f). Purdon's 52 P.S. 1396.4b(f) is the 
Legislative Reference Bureau's Section 4.2(f). Section 24 was formerly 
a Purdon's number. The complete number for section 24 in Purdon's was 
52 P.S. 1396.24. Section 1396.24 was renumbered to 1396.18f in 1993 as 
a result of amendments to PA SMCRA. Purdon's section 1396.18f is the 
Legislative Reference Bureau's Section 18.6. Pennsylvania believes that 
since the cross-references in sections 3.1(c) and 3.1(d) of SMCRA are 
the appropriate Legislative Reference Bureau Numbers that should be 
referenced, 30 CFR 938.16(kk) should be removed.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We will not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Harrisburg Field Office may not be logged in.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on 
February 11, 2002. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

[[Page 3640]]

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 because 
each 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 
the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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 
counterpart 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. 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 counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804 (2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local governmental agencies or 
geographic regions; and (c) Does not have significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 9, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-1945 Filed 1-24-02; 8:45 am]
BILLING CODE 4310-05-P