[Federal Register Volume 68, Number 191 (Thursday, October 2, 2003)]
[Rules and Regulations]
[Pages 56765-56776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24945]


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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 (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving 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 proposed revisions to its rules about surface and ground 
water monitoring and coal refuse disposal to satisfy required program 
amendments. Additionally, Pennsylvania submitted new rules concerning 
coal refuse disposal operations. Pennsylvania intended to revise its 
program to be consistent with the corresponding Federal regulations and 
SMCRA, clarify ambiguities, and provide additional safeguards. Finally, 
we are removing a regulatory program amendment where we required 
Pennsylvania to correct

[[Page 56766]]

cross-section references within the Pennsylvania Surface Mining 
Conservation and Reclamation Act (PA SMCRA).

EFFECTIVE DATE: October 2, 2003.

FOR FURTHER INFORMATION CONTACT: George Rieger, Acting Field Office 
Director, Harrisburg Field Office, Telephone: 717-782-4036, Internet 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 State 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. Submission of the Proposed Amendment

    By two letters, both dated December 20, 2001, Pennsylvania sent us 
proposed amendments to its program (Administrative Record Nos. PA 
837.101 and 881.00) under SMCRA (30 U.S.C. 1201 et seq.). In PA 
837.101, Pennsylvania revised and added regulations at 25 Pennsylvania 
Code (Pa. Code) Chapters 88 and 90 regarding coal refuse disposal 
operations to implement statutory changes made to its Coal Refuse 
Disposal Control Act (CRDCA). Through these revised and added 
regulations, Pennsylvania was also responding to required amendments 
codified at 30 CFR 938.16(vvv), (www), (xxx), (yyy), (zzz), (aaaa), and 
(bbbb). We required these amendments to the Pennsylvania program as a 
result of our review of Pennsylvania's amendment to the CRDCA as found 
in the April 22, 1998, Federal Register (63 FR 19802). In a May 22, 
1998, letter (Administrative Record No. PA 837.72) to OSM, Pennsylvania 
provided clarifications in response to the required amendments. In the 
February 2, 2000, Federal Register (65 FR 4882), we responded to 
Pennsylvania's clarifications by indicating that we would remove the 
required program amendments when Pennsylvania's clarifications were 
incorporated into regulations and those regulations were approved by 
OSM. In the amendment submitted under PA 837.101, Pennsylvania has 
provided those regulations.
    In PA 881.00, Pennsylvania submitted changes made to its 
regulations at 25 Pa. Code 89.59(a)(2), (3) and (b) regarding ground 
water monitoring. These changes were made in response to the required 
amendment at 30 CFR 938.16(hh) in which we required Pennsylvania to 
amend its program to be no less effective than 30 CFR 784.14(h)(1) 
regarding ground water monitoring plans. At a minimum, the plans are to 
contain 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 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).
    We announced receipt of the proposed amendments in the January 25, 
2002, Federal Register (67 FR 3633). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on February 25, 2002. We received comments on PA 
837.101 from four Federal agencies, on PA 881.00 we received comments 
from two Federal agencies, and on PA 880.00 we received comments from 
one Federal agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial changes.
    In the proposed amendment, Pennsylvania submitted regulations that 
implement provisions of the CRDCA. Many of these regulations are 
substantively the same, or have the same meaning, as portions of the 
CRDCA that are already in the approved Pennsylvania program. We 
announced our approval of these portions of the CRDCA in the April 22, 
1998, Federal Register (63 FR 19802). The following regulations, listed 
in the first column of the table below, are approved because they are 
substantively identical to, or have the same meaning as, the 
corresponding State statutory provisions (shown in the second column) 
that we approved on April 22, 1998:

------------------------------------------------------------------------
                                           Corresponding CRDCA sections
               Regulation                 that were previously approved
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25 Pa. Code 88.332.....................  Section 30.56a(i).
25 Pa. Code 90.1 definition of           Section 30.53 Definitions (8):
 ``operator''.                            ``operator''.
25 Pa. Code 90.1 definition of ``public  Section 30.53 Definitions
 recreational impoundment''.              (10.1): ``public recreational
                                          impoundment''.
25 Pa. Code 90.167(d)..................  Section 30.56a(i).
25 Pa. Code 90.201 definition of         Section 30.54a(a)(1)-(5).
 ``preferred site''.
25 Pa. Code 90.202(a)..................  Section 30.54a(a).
25 Pa. Code 90.202(b)(1)...............  Section 30.54a(c).
25 Pa. Code 90.202(b)(2)...............  Section 30.54a(d).
25 Pa. Code 90.202(c)..................  Section 30.54a(c), (d).
25 Pa. Code 90.202(d)..................  Section 30.54a(c), (d).
25 Pa. Code 90.202(e)(1)-(7)...........  Section 30.54a(b).
25 Pa. Code 90.204(a)(1)-(3)...........  Section 30.54a(c), (d).
25 Pa. Code 90.204(b)(1)-(3)...........  Section 30.54a(c), (d).
25 Pa. Code 90.205.....................  Section 30.54a(e).

[[Page 56767]]

 
25 Pa. Code 90.302 definition of         Section 30.53 Definitions (1):
 ``abatement plan''.                      ``abatement plan''.
25 Pa. Code 90.302 definition of         Section 30.53 Definitions (1.1)
 ``actual improvement''.                  ``actual improvement''.
25 Pa. Code 90.302 definition of ``best  Section 30.53 Definitions (1.4)
 technology''.                            ``best technology''.
25 Pa. Code 90.302 definition of         Section 30.53 Definitions (9.1)
 ``pollution abatement area''.            ``pollution abatement area''.
25 Pa. Code 90.303(a)(1)...............  Section 30.56b(b)(1).
25 Pa. Code 90.303(a)(2)(i)-(v)........  Section 30.56b(b)(2)(i)-(v).
25 Pa. Code 90.305(a)(1)(i)-(ii).......  Section 30.56b(c)(1)(i)-(ii).
25 Pa. Code 90.305(a)(2)-(4)...........  Section 30.56b(c)(2)-(4).
25 Pa. Code 90.305(a)(6)...............  Section 30.56b(c)(5).
25 Pa. Code 90.305(a)(7)...............  Section 30.56b(c)(7).
25 Pa. Code 90.305(b)..................  Section 30.56b(d).
25 Pa. Code 90.305(c)..................  Section 30.56b(c)(6).
------------------------------------------------------------------------

    The following section contains our evaluation of regulations that 
do not have substantively identical corresponding sections to those in 
the CRDCA. Pennsylvania has made changes to its regulations at Chapter 
88 covering coal refuse disposal operations in the anthracite region as 
well as regulations at Chapter 90 covering operations in the bituminous 
region.

Chapter 88 Anthracite Coal

    25 Pa. Code 88.281 Requirements. This section formerly required 
anthracite coal operators who conduct coal refuse disposal activities 
to comply with the performance standards and design requirements of 
this subchapter. Pennsylvania added references to the new coal refuse 
disposal regulations to insure that anthracite operators comply with 
these new standards. Although these references have no direct Federal 
counterparts, the Director is approving them because they do not render 
the Pennsylvania program inconsistent with SMCRA or the Federal 
regulations.
    25 Pa. Code 88.310 Coal refuse disposal: general requirements. 
Pennsylvania added subsections (j) and (k) to this section. Subsection 
(j) requires that the system to prevent adverse impacts to the surface 
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. This section is essentially 
the same as 25 Pa. Code 90.122(g) that the Director is approving below. 
This section will assure that anthracite refuse disposal operations are 
conducted in conjunction with the same safeguards as those in the 
bituminous region. Although these subsections have no direct Federal 
counterparts, the Director is approving them because they do not render 
the Pennsylvania program inconsistent with SMCRA or the Federal 
regulations.
    Subsection (k) provides the design and installation requirements of 
a system designed to prevent precipitation from coming in contact with 
the coal refuse. These requirements are essentially the same as those 
that the Director is approving at 25 Pa. Code 90.122(h) (see the 
discussion under 25 Pa. Code 90.122(h) below for more information). The 
addition of these requirements to Pennsylvania's anthracite regulations 
will insure that anthracite coal refuse disposal operations will be 
carried out with the same safeguards in place as those in the 
bituminous region. Although this subsection has no direct Federal 
counterpart, the Director is approving it because it does not render 
the Pennsylvania program inconsistent with SMCRA or the Federal 
regulations.

Chapter 90 Coal Refuse Disposal

    25 Pa. Code 90.1 Definition of ``coal refuse disposal''. 
Pennsylvania defines ``coal refuse disposal'' in section 90.1 as ``the 
storage, placement, or disposal of coal refuse.'' The term includes 
engineered features integral to the placement of the coal refuse 
including relocation 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.'' While the term ``coal 
refuse disposal'' is not defined in the Federal regulations, 
Pennsylvania's definition is used in its regulations for meeting the 
requirements of 30 CFR 816.81(a)(1) which requires waste disposal areas 
to minimize effects of leachate and surface water runoff on surface and 
ground water quality and quantity. The Director finds that the 
definition of ``coal refuse disposal'' is not inconsistent with SMCRA 
or the Federal regulations.
    25 Pa. Code 90.5 Site selection and permitting. Subsection (a) 
provides that an applicant for a permit to conduct coal refuse disposal 
activities shall comply with Subchapter E (relating to site selection) 
and shall use Pennsylvania's Technical Guidance Document number 563-
2113-660, titled ``Coal Refuse Disposal--Site Selection'' as guidance 
for selecting a coal refuse disposal site. Subsection (b) provides that 
after Pennsylvania has approved a site in accordance with Subchapter E, 
the applicant may apply for a permit for coal refuse disposal 
activities. There is no direct Federal counterpart for this regulation. 
However, this section merely describes the sequence of events that an 
applicant must go through to secure a permit for coal refuse disposal. 
Because this section is not inconsistent with SMCRA or the Federal 
regulations, the Director is approving it.
    25 Pa. Code 90.12 Geology. Pennsylvania rearranged this section and 
also added and deleted some language. This section describes the 
geologic information that an application for coal refuse disposal must 
include. Former subsection (a)(1) was combined into subsection (a). 
Pennsylvania also deleted language from former subsection (a)(1) that 
described the information on the specific geologic stratum that 
operators are required to put in their permit applications. The deleted 
information required stratum information that was tied to the lowest 
coal seam to be mined. This information was replaced with the phrase, 
``The description shall include the strata down to and including any 
aquifer that may be affected.'' Pennsylvania made these changes because 
coal refuse disposal operations typically do not require the mining of 
coal. If coal mining does occur in conjunction with the refuse disposal 
operations, it will be regulated under Pennsylvania's surface coal 
mining regulations.
    The Federal regulation most comparable to this section is found at 
30 CFR 780.22(b)(1). This section requires geologic information in 
applications to include the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the

[[Page 56768]]

lowest coal seam to be mined which may be adversely impacted by mining. 
Since no coal mining will occur in a refuse disposal operation, 
Pennsylvania's revised language requiring a description of the stratum 
down to and including the lowest aquifer that could be affected is as 
effective as the Federal regulations in requiring the application to 
contain geologic information about strata that could be affected in a 
coal refuse disposal operation. The Director finds that this change is 
no less effective than the Federal regulations and is approving the 
change.
    Former subsection (a)(1)(i) was moved in its entirety to (a)(1). 
Former subsection (a)(1)(ii) is now (a)(2) and was changed from 
``Depth, lithology and structure of overburden or underlying strata,'' 
to ``Depth, lithology and structure of near-surface bedrock.'' As noted 
earlier, coal refuse disposal operations in Pennsylvania generally are 
fills that do not involve the mining of coal. Therefore, the 
requirement to provide the depth, lithology and structure of overburden 
or underlying strata, is not applicable since this requirement is tied 
to a coal seam to be mined. The Director finds that a description of 
the lithology and structure of the near-surface bedrock is no less 
effective than the Federal regulations requiring descriptions of the 
strata to be affected by refuse operations. Accordingly, the Director 
is approving this change.
    Former subsection (a)(2) has been deleted. This section provided 
the geologic information to be included in an application for any 
portion of a permit area in which the strata will be removed. As noted 
earlier, this provision is not applicable to refuse disposal operations 
because coal mining (unless otherwise authorized under Pennsylvania's 
surface mining regulations) does not occur on such operations. The 
Director is approving this change.
    Former subsection (b) has been deleted. This section provided that 
an applicant may request that the requirements for a statement of the 
results of the test borings or core samplings required under subsection 
(a)(2) may be waived in part or in its entirety by the Department. 
Since former subsection (a)(2) has been deleted there is no reason to 
get a waiver from its requirements, therefore, the Director is 
approving deletion of this section.
    Pennsylvania added requirements (4) through (9) to subsection (a). 
These sections provide the application requirements for describing the 
soils, geologic strata characteristics, aquifers, and mine workings 
below proposed refuse disposal areas. These additions do not correspond 
directly to any Federal regulations. However, they require operators to 
inform Pennsylvania of the conditions beneath and adjacent to the 
proposed coal refuse disposal area. Because they require additional 
descriptions of site conditions, they are not inconsistent with the 
Federal regulations, and the Director is approving them.
    Pennsylvania added a new subsection (b) that provides that maps, 
cross-sections, and geologic descriptions required by this section 
shall be prepared and certified by a qualified registered professional 
geologist. The Director finds that this section is no less effective 
than the Federal regulations at 30 CFR 779/783.25(b), which provides 
that a professional geologist is among the professionals authorized to 
submit maps and cross-sections for permit information.
    25 Pa. Code 90.13 Groundwater information. In subsection (2), 
Pennsylvania proposed to add the following sentence to the end of the 
subsection: ``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).'' This section does not have a direct 
Federal counterpart. However, it is useful to provide a description of 
the groundwater flow system as it relates to design and operation of 
the groundwater and surface water protection system in the application 
so that Pennsylvania may evaluate the effectiveness of such systems. 
The information required by 25 Pa. Code 90.13(2) assists operators in 
meeting the requirements of, and is therefore consistent with, 30 CFR 
816.81(a)(1), which requires operators to minimize adverse effects of 
leachate and surface water runoff on surface and ground water quality 
and quantity. As a result, the Director is approving this addition.
    25 Pa. Code 90.45 Prime farmland The only change to this section 
was the addition of a reference to Subchapter E which now requires that 
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), to submit a 
plan as part of the permit application for the disposal and restoration 
of the land. The addition of this language clarifies that an operator 
must take into account the requirements of subchapter E when proposing 
to conduct refuse disposal on prime farmland sites. In Subchapter E, 
section 90.202(e)(1) provides that Pennsylvania will not approve coal 
refuse disposal on, or within, prime farmlands except on preferred 
sites. The Director finds that because this section provides 
protections for prime farmlands in addition to those found in 30 CFR 
785.17, it is consistent with that Federal regulation and is hereby 
approved.
    25 Pa. Code 90.49 Stream buffer zone variance This is a new section 
added to define the conditions when Pennsylvania will allow coal refuse 
disposal operations to occur within 100 feet of a stream. As such, it 
expands upon and clarifies the statutory provisions partially approved 
on April 22, 1998 (63 FR 19806). Subsection (a) provides that coal 
refuse disposal may not occur within 100 feet of a stream, however, the 
Department may grant a variance under subsection (c) if the application 
is consistent with Subchapter E (relating to site selection). 
Subsection (b) provides that surface mining operations supporting coal 
refuse disposal must comply with 25 Pa. Code 86.102(12) relating to 
areas where mining is prohibited or limited. Subsection (c) provides 
the procedures an operator must follow to obtain a variance for 
disposal of coal refuse within the 100-foot stream buffer zone (SBZ) 
and the circumstances under which the Department will grant such a 
variance.
    This amendment responds to the required amendment codified at 30 
CFR 938.16(www). This required amendment concerns application of the 
SBZ rule at 30 CFR 816/817.57. The required amendment stated:

    By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to authorize stream buffer zone variances for coal refuse 
disposal activities only where such activities will not cause or 
contribute to the violation of applicable State or Federal water 
quality standards, and will not adversely affect water quality and 
quantity, or other environmental resources of the stream.

    Pennsylvania's submission of regulations at 25 Pa. Code 90.49(a), 
(b) and (c)(1), regarding coal refuse disposal activities within a SBZ, 
are substantially the same as the Federal regulations regarding surface 
mining activities within a SBZ found at 30 CFR 816/817.57. Those 
sections provide assurance that the activities will not cause or 
contribute to the violation of applicable State or Federal water 
quality standards, and will not adversely affect the water quantity and 
quality or other

[[Page 56769]]

environmental resources of the stream. In addition, at 25 Pa. Code 
90.49(c)(2), Pennsylvania contains regulations regarding public notice 
of a potential variance and a method by which the public can file an 
exception to the proposed variance with the aim of receiving a public 
hearing. These sections are no less effective than the Federal 
regulations and we are approving them. As a result, we will remove the 
required amendment at 30 CFR 938.16(www).
    In 25 Pa. Code 90.49(c)(3), Pennsylvania has indicated that 
variances to SBZs will be issued as written orders specifying the 
methods and techniques to 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. The 
first sentence of this provision is essentially identical to the 
statutory language previously approved on April 22, 1998, which states 
``The variance shall be issued as a written order specifying the 
methods and techniques that must be employed to prevent or mitigate 
adverse impacts.'' Therefore, there is no issue in approving that 
language in regulation here. The second sentence merely elaborates on 
the scope of that mitigation concept we have previously accepted by 
indicating that it may include off-site restoration or enhancement. 
Therefore, it is also approved.
    25 Pa. Code 90.50 Design criteria: groundwater and surface water 
protection system. This entire section was added by the amendment and 
provides the application requirements for the performance standards of 
section 30.56a(i) of the CRDCA. Subsection (a) provides that the 
application must include a description of the system that will be 
installed to prevent adverse impacts to groundwater and surface water, 
while subsection (b) requires the application to include a description 
of the system that will be installed to prevent precipitation from 
coming in contact with the coal refuse. Subsection (c) provides that 
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 impact to groundwater and surface water and for 
preventing precipitation from contacting coal refuse. Subsection (d) 
requires the application to 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 must address the site's 
susceptibility to mine subsidence and deterioration due to physical or 
chemical processes.
    We approved Pennsylvania's use of a system to prevent adverse 
impacts to surface and ground water and to prevent precipitation from 
contacting the coal refuse, as described in section 30.56a(i) of the 
CRDCA, in the April 22, 1998, Federal Register (63 FR 19807). The 
requirements, as presented in the amendment, to describe such systems 
in the permit application including when and how the systems will be 
used and how they will be maintained are a logical extension of the 
requirements of their use. These permit application requirements, in 
conjunction with the requirements of previously approved sections 25 
Pa. Code 90.35 concerning protection of the hydrologic balance, and 25 
Pa. Code 90.101 concerning general requirements of the hydrologic 
balance, are consistent with the requirements of SMCRA section 
515(b)(10) concerning protection of the hydrologic balance and 30 CFR 
816.81(a) concerning coal mine waste, protection of surface and 
groundwater from leachate and surface water runoff. As a result, the 
Director is approving this section.
    25 Pa. Code 90.101 Hydrologic balance: general requirements. 
Pennsylvania proposed only a minor change to this section. Subsection 
(b) previously required coal refuse disposal activities to be planned 
and conducted to prevent pollution of the water. In this amendment, 
Pennsylvania clarified that the water referred to in this section is 
groundwater and surface water. This clarification is consistent with 
the requirements of SMCRA section 515(b)(10) regarding minimizing 
disturbances to surface and ground water systems. As a result, the 
Director is approving this section.
    25 Pa. Code 90.116a Hydrologic balance: water rights and 
replacement. This new section provides that an operator who conducts 
coal refuse disposal and adversely affects a water supply shall comply 
with 25 Pa. Code 87.119 (relating to water rights and replacement). 
Section 87.119 requires restoration or replacement of an affected water 
supply with an alternate source adequate in quantity and quality for 
the purpose served by the supply. While we are reviewing changes to 25 
Pa. Code 87.119 as part of a different program amendment, the Director 
finds that the reference in 25 Pa. Code 90.116a to 25 Pa. Code 87.119 
will insure that water supplies adversely affected by coal refuse 
disposal operation will be restored or replaced. Therefore, the 
Director is approving this section.
    25 Pa. Code 90.122 Coal refuse disposal. In this section, 
Pennsylvania deleted former subsections (e) and (g), and redesignated 
former subsection (f) as (e) and former subsection (h) as (f). 
Pennsylvania then added new subsections (g) and (h). In the former 
subsection (e) Pennsylvania required coal refuse disposal areas to be 
located on the most moderately sloping and naturally stable areas 
available. The section further provided that fill materials suitable 
for disposal are to be placed on or above a natural terrace, bench or 
berm to provide additional stability and prevent mass movement. Former 
subsection (g) required coal refuse disposal areas to be located in 
areas where groundwater discharge and surface water flows are minimal. 
These sections, which have no direct Federal counterparts, were 
designed to provide stability to refuse disposal fills and prevent 
pollution to surface and groundwater, both of which are provided for 
under the remaining and new subsections of 25 Pa. Code 90.122. 
Therefore, the Director is approving the deletion of these sections.
    The new subsection (g) requires refuse disposal areas to be 
provided with a system to prevent adverse impacts to surface water and 
groundwater. New subsection (h) specifies how and when the system for 
preventing precipitation from coming into contact with coal refuse is 
to be installed. These sections are derived from, and are consistent 
with, section 30.56a(i) of the CRDCA that we approved in the April 22, 
1998, Federal Register notice (63 FR 19807). Therefore, the Director is 
approving them.
    Subchapter E. Site selection. Pennsylvania is proposing to add a 
new Subchapter E titled, ``Site Selection'' to the Chapter 90 
regulations. Subchapter E will contain 25 Pa. Code 90.201 Definitions, 
25 Pa. Code 90.202 General requirements, 25 Pa. Code 90.203 Proposing a 
preferred site, 25 Pa. Code 90.204 Proposing an alternate site, 25 Pa. 
Code 90.205 Alternatives analysis, 25 Pa. Code 90.206 Disapproval of a 
proposed site, and 25 Pa. Code 90.207 Approval of a selected site.
    25 Pa. Code 90.201 Definitions. This section contains definitions 
of the terms ``search area,'' and ``selected site.'' These definitions 
are used to implement Pennsylvania's regulations for the selection of 
sites for coal refuse disposal operations.
    Pennsylvania has defined the term ``search area'' to mean the 
geographic area within a 1-mile radius of an existing coal preparation 
facility or the

[[Page 56770]]

25 square mile geographic area encompassing a proposed coal preparation 
facility. Although these terms were not specifically used in the CRDCA, 
the definitions were used in section 30.54a(c) and (d) regarding 
criteria for selecting sites for coal refuse disposal operations. We 
approved the use of the 1-mile radius in identifying alternative sites 
for new refuse disposal areas to support an existing coal mining 
activity and the use of the 25 square mile geographic area for 
alternative sites for a proposed coal preparation facility (63 FR 
19806). Accordingly, the Director is approving the definition of the 
term ``search area'' in 25 Pa. Code 90.202.
    The term ``selected site'' is defined as a location selected by the 
applicant and approved by the Department for which the applicant can 
then apply for a permit to conduct coal refuse disposal activities. 
This term is not used in the CRDCA and there is no comparable term in 
the Federal regulations. We are approving the term because we have 
already approved the concept of coal refuse disposal site selection set 
forth in the CRDCA at 52 P.S. 30.54a(a) (63 FR 19806), and because the 
term is not inconsistent with SMCRA or the Federal regulations.
    25 Pa. Code 90.202 General requirements. Subsection (f) provides 
that as part of the site selection process, an applicant may request 
approval for more than one site. The applicant will have the option of 
choosing a selected site from those approved by the Department to be 
used as the site for submitting an application on which to conduct coal 
refuse disposal operations. While there is no comparable Federal 
regulation for this section, there is nothing in SMCRA or the Federal 
regulations to prevent an operator from examining any number of sites 
to conduct refuse disposal operations. Any of the sites chosen must 
undergo the permitting process and be approved by the Department in 
accordance with the counterparts to SMCRA and the Federal regulations. 
Accordingly, the Director is approving subsection (f) of 25 Pa. Code 
90.202.
    25 Pa. Code 90.203 Proposing a preferred site. This section 
provides that if an applicant proposes to use a preferred site, the 
Department will approve the proposed site subject to 25 Pa. Code 
90.202(c) (relating to general requirements) provided the applicant 
demonstrates that the attendant adverse environmental impacts will not 
clearly outweigh the public benefits. This section relates to section 
30.54a(a) of the CRDCA, which provides that preferred sites shall be 
used for coal refuse disposal unless the applicant demonstrates another 
site is more suitable; and that where the adverse environmental impacts 
of the preferred site clearly outweigh the public benefits, the site 
shall not be considered a preferred site. We approved section 30.54a(a) 
in the April 22, 1998, Federal Register (63 FR 19804). Because 25 Pa. 
Code 90.203 is consistent with the approved State statutory provision, 
the Director is approving it.
    25 Pa. Code 90.206 Disapproval of a proposed site This section 
provides that if the Department disapproves the applicant's proposed 
site, the applicant may submit a new proposal supporting the selection 
of another site located within or outside the search area. There is no 
similar language in the CRDCA or SMCRA or the Federal regulations. 
However, there is no provision in SMCRA or the Federal regulations that 
prohibits an applicant from submitting alternative proposals if one is 
turned down. The Director finds this section is not inconsistent with 
the Federal regulations or SMCRA and is approving it.
    25 Pa. Code 90.207 Approval of a selected site. This section 
provides that Pennsylvania's approval of a selected site does not 
indicate it will approve an application for coal refuse disposal 
activities on the selected site. The Director finds that this provision 
is consistent with Pennsylvania's permitting responsibilities under 
State counterparts to permitting requirements contained in SMCRA and 
the Federal regulations, and is therefore approving it.
    Subchapter F. Coal Refuse Disposal Activities on Areas with 
Preexisting Pollutional Discharges. This is a new section added by 
Pennsylvania. These regulations are modeled on existing regulations 
regarding remining areas with preexisting pollutional discharges found 
in 25 Pa. Code Chapter 87, Subchapter F and approved by OSM in the 
February 19, 1986 Federal Register (51 FR 5997).
    25 Pa. Code 90.301 Scope. This section gives a general overview of 
the sections that follow and notes that 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 chapter. The Director has 
approved, with some conditions, the concept of establishing coal refuse 
disposal areas on sites with preexisting pollutional discharges in the 
analysis of the amendment of the CRDCA in the April 22, 1998 Federal 
Register (63 FR 19802). Section 25 Pa. Code 90.301 introduces the 
concept in regulation; therefore the Director is approving this 
section.
    25 Pa. Code 90.302 Definitions, Baseline Pollution Load. 
Pennsylvania added the definition of the term ``baseline pollution 
load'' to 25 Pa. Code 90.302. This term is defined as, ``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.'' This term was 
similarly defined in the CRDCA except for the last sentence. The term, 
including the last sentence, was also defined in 25 Pa. Code 87.202 
regarding remining on surface mining sites with pollutional discharges. 
We approved the definition in our evaluation of the Chapter 87 
regulations in the February 19, 1986 Federal Register (51 FR 5997). We 
are approving the definition for use in coal refuse disposal operations 
for the same reasons.
    25 Pa. Code 90.302 Definitions, Best Professional Judgment. 
Pennsylvania added the definition of the term ``best professional 
judgment'' to 25 Pa. Code 90.302. The term is defined to mean, ``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. Sec.  Sec.  1311 and 1342).'' 
This definition is identical in substance to the definition of ``best 
professional judgment'' found at 25 Pa. Code sections 87.202 and 
88.502, which was approved by OSM as part of Pennsylvania's standards 
for treatment of preexisting discharges on remined areas in the 
February 19, 1986, Federal Register (51 FR 5997). As a result, the 
Director is approving the definition at 25 Pa. Code 90.302.
    25 Pa. Code 90.302 Definitions, Coal Refuse Disposal Activities. 
The term ``coal refuse disposal activities'' was similarly defined in 
the CRDCA and in this section to mean 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

[[Page 56771]]

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 does not include the removal or 
storage of overburden from surface mining activities. In our analysis 
of the term in the April 22, 1998, Federal Register (63 FR 19803), we 
required Pennsylvania to amend its program to clarify the meaning of 
the term ``excess soil and related materials'' as used in the 
definition. This requirement was codified at 30 CFR 938.16(vvv).
    In the February 2, 2000, Federal Register (65 FR 4882), we noted 
that Pennsylvania submitted information in response to the required 
amendment at 30 CFR 938.16(vvv). As part of that response, Pennsylvania 
defined the term ``excess soil and related material to mean 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.'' In that Federal 
Register notice, we indicated that we would remove the required program 
amendment when the clarification is incorporated in Pennsylvania's 
regulations and those regulations are approved by OSM. Pennsylvania 
incorporated the definition of ``excess soil and related materials'' 
verbatim into its regulations at 25 Pa. Code 90.302. Therefore, the 
Director is approving the definition and removing the required 
amendment at 30 CFR 938.16(vvv).
    25 Pa. Code 90.303 Applicability. Subsection (b) provides that:

    Notwithstanding subsection (a), authorization will not be 
granted under this subchapter for repermitting under Sec.  Sec.  
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).

    There is no direct Federal counterpart to this provision but the 
Director is approving it because it acts to limit permits where coal 
refuse disposal activities can occur. This section does not make 
Pennsylvania's coal refuse disposal regulations less effective than 
Federal regulations.
    25 Pa. Code 90.304 Application for authorization. This section 
provides the permit application requirements for operators seeking to 
obtain authorization to conduct refuse disposal operations on areas 
with preexisting pollutional discharges. Parts of section 6.2(e) (52 
P.S. 30.56b(e)) of the CRDCA are repeated in this section. 
Additionally, this section copies 25 Pa. Code 87.204, which contains 
the surface coal mining requirements for remining areas with 
pollutional discharges. As noted above, OSM approved 25 Pa. Code 87.204 
in the February 19, 1986, Federal Register (51 FR 5997). The Director 
is approving this section for the same reasons.
    25 Pa. Code 90.305 Application approval or denial. Subsection 
(a)(5) provides standards for success of revegetation on areas approved 
under this section. For areas previously reclaimed to the standards of 
Chapters 87, 88 and 90, the revegetation success standards of 25 Pa. 
Code 90.159 apply. OSM previously approved the revegetation standards 
in 25 Pa. Code 90.159. Therefore, the Director is approving this 
portion of the amendment.
    Subsection (a)(5) also provides that for those sites not previously 
reclaimed to the standards of Chapters 87, 88, and 90 the standards of 
subsection (a)(5)(i)-(iii) apply providing the site is not a bond 
forfeiture. These standards are the same as those OSM approved for 
previously affected sites in 25 Pa. 87.205(a)(5)(i)-(iii). Therefore, 
the Director is approving this section.
    The submission of this portion of the amendment satisfies the 
required amendment codified at 30 CFR 938.16(zzz). This required 
amendment indicates that Pennsylvania must amend its program to be no 
less effective than 30 CFR 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.
    The submission of this portion of the amendment also allows us to 
remove the required amendment codified at 30 CFR 938.16(aaaa). This 
section required Pennsylvania to amend its program to clarify that 
under Subsection 6.2(l) of its Coal Refuse Disposal Act, 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 forfeited. Pennsylvania responded to this 
required amendment by including language in 25 Pa. Code 90.305(a)(5) 
that provides an exception to the revegetation standards for special 
authorization projects. The revegetation standards of that section are 
not applicable when such projects are conducted on bond forfeiture 
sites not previously reclaimed to the standards of Chapters 87, 88 and 
90, where the money paid into the fund is sufficient to reclaim the 
forfeited site to the applicable standards. Additionally, we find that 
the Pennsylvania program prohibits the issuance of a special 
authorization where preexisting pollutional discharges would not be 
adequately treated where proceeds paid into the Surface Mining 
Conservation and Reclamation Fund as a result of a bond forfeiture on 
the proposed special authorization site are sufficient to pay for such 
treatment. In other words, treatment of pollutional discharges will not 
be compromised by special authorizations. Our finding is based upon two 
premises. First, according to PADEP, there are no currently existing 
sites for which the forfeited bond would be sufficient to pay for 
adequate discharge treatment. Second, discharge treatment costs for any 
future sites will be covered either by conventional bonds, or by 
treatment trust funds. In the event of operator default on such sites, 
proceeds from the conventional bonds or treatment trust funds must be 
expended to accomplish discharge treatment on the sites to which they 
are dedicated. Thus, where those proceeds are adequate to pay for 
discharge treatment, they must be used to that end. For these reasons, 
the remaining concerns that led to the imposition of 30 CFR 
938.16(aaaa) have been satisfied, and we are hereby removing this 
required amendment.
    30 CFR 816.116(b)(5) requires that vegetative cover, for areas 
previously disturbed by mining that were not reclaimed to the standards 
of Subchapter K, shall not be less than the ground cover existing 
before redisturbance and shall be adequate to control erosion. In 
Pennsylvania's amendment, 25 Pa. Code 90.305(a)(5)(ii) and (iii) 
contains these requirements. As a result, Pennsylvania has satisfied 
the conditions of the required amendment and we are removing it.
    Subsection (d) provides that the authorization allowed under this 
subsection is only for the pollution abatement area and does not apply 
to other areas of the permit. The Director is approving this portion of 
the regulations because it limits the areas of the permit on which coal 
refuse disposal activities can occur. While there is no direct Federal 
counterpart to this provision, it does not make this portion of the 
regulations less effective than the Federal regulations regarding coal 
refuse disposal.
    25 Pa. Code 90.306 Operational requirements. This section provides 
that operators must comply with Chapter 86

[[Page 56772]]

requirements, implement the approved water monitoring program, 
implement the approved abatement plan and notify the Department prior 
to the completion of each step of the abatement plan. In addition, this 
section requires a progress report be sent to the Department within 30 
days of completion of each step of the abatement program. We approved 
the statutory authority for these regulations, contained in 52 P.S. 
30.56b(f)(1)-(4), on April 22, 1998 (63 FR 19808). Section 90.306 
contains the same requirements as 25 Pa. Code 87.206 that OSM approved 
in the February 19, 1986, Federal Register (51 FR 5997) except that the 
reporting statement signed by the operator in section (a)(4) need not 
be notarized in 25 Pa. Code 90.306(a). The lack of a notarized seal on 
the operator's statement does not lessen the reporting requirements of 
this section. There is no comparable Federal requirement to this 
section so Pennsylvania's reporting requirements are more stringent 
than any Federal provisions. The Director is approving this section.
    25 Pa. Code 90.307 Treatment of discharges. This section provides 
that operators shall comply with the effluent standards of 25 Pa. Code 
90.102 for treating discharges, except for preexisting discharges that 
are not encountered during coal refuse activities or implementation of 
the abatement plan. For preexisting discharges that are not encountered 
during coal refuse activities or implementation of the abatement plan, 
the operator must treat the discharge to comply with the effluent 
limits established by best professional judgment. The effluent 
limitations established by best professional judgment may not be less 
than the baseline pollution load.
    This section is the same as 25 Pa. Code 87.207. OSM approved 25 Pa. 
Code 87.207 in the February 19, 1986, Federal Register (51 FR 5997). 
However, both 25 Pa. Code 87.207 and 90.307 contain language that 
Pennsylvania added after the 1986 approval. In 1989, Pennsylvania 
amended 25 Pa. Code 87.207(b) by adding the following language:

    If the baseline pollution load when expressed as a concentration 
for a specific parameter satisfies the effluent limitations at Sec.  
87.102 (relating to hydrologic balance: Effluent standards) 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 at Sec.  87.102.

    In our evaluation of this revision, as published in the May 31, 
1991, Federal Register (56 FR 24657,) we noted that while the United 
States Environmental Protection Agency (EPA) generally concurred with 
the amendment package that included the above-quoted change, we asked 
for a specific determination by EPA as to whether the new language in 
section 87.207(b) is consistent with section 301(p) of the Federal 
Water Pollution Act, 33 U.S.C. 1311(p). Section 301(p) authorizes the 
issuance of National Pollutant Discharge Elimination System permits 
with modified effluent limitations for pH, iron and manganese on 
previously mined sites with preexisting discharges. We decided to defer 
a decision on this provision, pending specific EPA concurrence.
    While we did not receive specific concurrence from EPA on revised 
25 Pa. Code 87.207(b), EPA did publish a final rule on January 23, 2002 
(67 FR 3370), that addresses our questions concerning the revision. 
Appendix B, part I d, indicates that:

    In the event that a pollutant concentration in the data used to 
determine baseline is lower than the daily maximum limitation 
established in subpart C of this part for active mine wastewater, 
the statistical procedures should not establish a baseline more 
stringent than the BPT and BAT effluent standards established in 
subpart C of this part.

    This language, plus EPA's concurrence received for this amendment, 
makes 25 Pa. Code 90.307 no less effective than the Federal regulation 
at 30 CFR 816.42 which provides that discharges of water from areas 
disturbed by surface mining activities must be made in compliance with 
effluent limitations for coal mining promulgated by EPA.
    The submission of this section also satisfies required amendments 
codified at 30 CFR 938.16(xxx) and (yyy) that we put into place as a 
result of our review of the CRDCA (63 FR 19802). The required amendment 
at 30 CFR 938.16(xxx) indicates that Pennsylvania shall amend its 
program to clarify, in regulations developed to implement the 
provisions of section 6.2 of the CRDCA, that preexisting discharges 
that are encountered must be treated to the effluent standards at 25 
Pa. Code 90.102.
    In the February 2, 2000, Federal Register (65 FR 4883), we 
indicated that we would remove the required amendment at 30 CFR 
938.16(xxx) if Pennsylvania submitted regulations that clarified that 
under section 6.2 of the CRDCA, preexisting discharges that are 
encountered must be treated to the State effluent standards at 25 Pa. 
Code 90.102. In its amendment, Pennsylvania submitted section 25 Pa. 
Code 90.307 which indicates that in subsection (a) that all discharges, 
except for preexisting discharges that are not encountered during coal 
refuse disposal activities or the implementation of the abatement plan, 
must comply with 25 Pa. Code 90.102. In this regulation, Pennsylvania 
has satisfied the conditions of the required amendment and, as a 
result, we are removing it.
    The required amendment at 30 CFR 938.16(yyy) indicates that 
Pennsylvania shall amend its program to clarify that subsection 6.2(h) 
of the CRDCA pertains to preexisting discharges that are not 
encountered. In the Federal Register of April 22, 1998 (63 FR 19810), 
we approved section 6.2(h) of the CRDCA 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 must be treated to the water quality standards of 25 Pa. 
Code 90.102.
    In this amendment, Pennsylvania submitted 25 Pa. Code 90.307(b) 
which provides that preexisting discharges that are not encountered 
must comply with effluent limitations established by best professional 
judgment. The best professional judgment limitations cannot be less 
than the baseline pollution load. Subsection (d) in describing when an 
operator may discontinue treating the discharges under subsection (b), 
indicates that treatment may be discontinued when the preexisting 
discharges are meeting the effluent limits established in subsection 
(b). Taken together, subsections (b) and (d) satisfy the conditions of 
the required amendment at 30 CFR 938.16(yyy) and as a result, we are 
removing it.
    25 Pa. Code 90.308 Request for bond release. This section is the 
same as 25 Pa. Code 87.208 that OSM approved on February 19, 1986. The 
Director is approving this section for the same reason. We note that 
section 90.308 states that 25 Pa. Code subsection 86.172(d) shall not 
apply to the release of bonds for pollution abatement areas. Subsection 
86.172(d) no longer exists; however, since the now deleted provision 
would not have applied to bond releases under section 90.308 anyway, 
the cross-reference to it is a nullity.
    25 Pa. Code 90.309 Criteria and schedule for release of bonds on 
pollution abatement areas. For the most part, this section is the same 
as 25 Pa. Code 87.209 that OSM approved on February 19, 1986, except 
for two areas. In the first, the percentage of bond

[[Page 56773]]

release is different. In 25 Pa. Code 87.209(a), the initial bond 
release can be up to 60% of the bond and the percentage of the phase II 
bond release in 25 Pa. Code 87.209(b) is not specified (subsection (b) 
specifies only that the Department will release an additional bond 
while retaining an amount sufficient to cover the cost of 
reestablishing vegetation if completed by a third party). In the 
regulations covering coal refuse disposal at 25 Pa. Code 90.309(a), the 
initial bond release is up to 50% of the bond and the phase II bond 
release specified in 25 Pa. Code 90.309(b) can be up to an additional 
35% of the bond while retaining an amount sufficient to cover the cost 
of reestablishing vegetation if completed by a third party. The 
regulations at 25 Pa. Code 90.309(a) could result in retention of more 
of the bond after phase I release than the counterpart regulations at 
25 Pa. Code Chapter 87. This would provide more funds available to 
complete reclamation if an operator defaults after phase I release. 
Therefore, the Director is approving this portion of the amendment.
    The second area of difference is at 25 Pa. Code 
90.309(b)(3)(ii)(A)(I). This section deals with one of the standards 
the operator must achieve to receive a bond release of up to 35%. The 
section provides that this portion of the bond can be released if the 
operator, among other things, has not caused degradation of the 
baseline pollution load for a period of twelve months from the date of 
the 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 25 Pa. Code 90.305(a)(5) have been completed. The 
similar section approved by OSM on February 19, 1986, for surface mines 
at 25 Pa. Code 87.209(b)(3)(ii)(A)(I) indicated that up to 35% of bonds 
could be released if the operator, among other things, had not caused 
degradation of the baseline pollution load for the twelve months prior 
to the date of application for bond release and until the bond release 
is approved under subsection (b), if final grading, drainage control, 
topsoiling and establishment of revegetation to achieve the standard of 
success for revegetation in 25 Pa. Code 87.205(a)(5) have been 
completed. The difference in the two sections amounts to the period of 
time for demonstrating that the site did not degrade the baseline 
pollution load. The proposed rules at 25 Pa. Code 
90.309(b)(3)(ii)(A)(I) provide for a demonstration period of twelve 
months from the date of the initial bond release, while in the 
previously approved regulation at 87.209(b)(3)(ii)(A)(I) the 
demonstration period is for twelve months prior to the date of 
application for bond release and until the bond release is approved. 
Pennsylvania indicated that the demonstration period for the bond 
release on coal refuse disposal sites was set by the CRDCA which is why 
it is different than the surface mining regulations in Chapter 87. 
There is no comparable Federal regulation for this provision. However, 
the demonstration period is not inconsistent with the Federal 
regulations at 30 CFR 800.40(c)(2) regarding the release of Phase II 
bonds. As a result, the Director is approving it.
    The remaining sections of 25 Pa. Code 90.309 are the same as the 
sections of 25 Pa. Code 87.209 that OSM previously approved on February 
19, 1986. Therefore the Director is approving them.

Subchapter G. Experimental Practices.

    25 Pa. Code 90.401 General. This section provides the standards 
that coal refuse disposal practices must attain to be considered 
experimental practices. Subsection (a) is approved because it is 
substantively identical to, and therefore no less stringent than, the 
corresponding portions of section 711 of SMCRA. In addition, subsection 
(b) requires experimental practice permits to meet all the provisions, 
standards, and information requirements of 30 CFR 785.13. The Director 
finds that this provision will make Pennsylvania's regulations no less 
effective than 30 CFR 785.13 and is therefore approving it.
    Submission of this portion of the amendment also satisfies the 
required amendment codified at 30 CFR 938.16(bbbb). This required 
amendment indicates that Pennsylvania must amend its program by adding 
implementation rules no less effective than 30 CFR 785.13 and no less 
stringent than SMCRA section 711. Further, Pennsylvania must 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. This required amendment is 
satisfied by subsection 90.401(a), which is substantively identical to 
most of section 711 of SMCRA, and by subsection (b), which requires 
compliance with 30 CFR 785.13, which contains the remaining applicable 
requirements of section 711 of SMCRA not covered by 90.401(a). Those 
remaining requirements are that experimental practices be approved only 
as departures from the performance standards in individual cases, and 
that such practices must also receive the approval of the Secretary of 
the United States Department of the Interior, as delegated to the OSM 
Director. Therefore, we are removing 30 CFR 938.16(bbbb).

Removal of Required Amendments at 30 CFR 938.16(hh) and (kk)

    In the required amendment codified at 938.16(hh), we required 
Pennsylvania to amend 25 Pa. Code 89.59(a)(1) and (2) or otherwise 
amend its program to be no less effective than 30 CFR 784.14(h)(1) to 
require the monitoring plan 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 3 months for each monitoring location.
    In response to this required amendment, Pennsylvania submitted 
changes to 25 Pa. Code 89.59(a)(3). The changes include deleting the 
last sentence from the section that reads, ``The Department will 
approve the nature of data, frequency of collection, reporting 
requirements and the duration of the monitoring programs,'' and adding 
the following two sentences 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 250C, 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.''
    We find that Pennsylvania's regulatory language regarding surface 
and groundwater monitoring is substantively identical to the 
corresponding portions of the Federal requirements at 30 CFR 
784.14(h)(1) and therefore satisfies the required amendment at 30 CFR 
938.16(hh). We are removing the required amendment at 30 CFR 
938.16(hh).

[[Page 56774]]

    The required amendment codified at 30 CFR 938.16(kk) requires 
Pennsylvania to correct cross-references in two sections of PA SMCRA. 
In section 3.1(c), the cross-reference to section 4.2(f) was to be 
changed to 4(b)(f). In section 3.1(d), the cross-reference to 18.6 was 
to be replaced with Section 24.
    In response to the required amendment, Pennsylvania submitted a 
letter dated November 16, 2001 (Administrative Record No. PA 880.00). 
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.
    We agree with Pennsylvania's explanation regarding the cross-
references and therefore, we are removing the required amendment 
codified at 30 CFR 938.16(kk).

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received.

Federal Agency Comments

    Four responses were received from Federal agencies in response to 
Pennsylvania's submission under Administrative Record No. PA 837.101. 
One response was received from the United States Department of the 
Interior, Fish and Wildlife Service (FWS), two responses were received 
from the U.S. Department of Labor, Mine Safety and Health 
Administration's (MSHA), and one response was from the United States 
Department of Agriculture, Natural Resources Conservation Service 
(NRCS).
    FWS submitted comments dated February 25, 2002 (Administrative 
Record No. PA 837.108). FWS indicated that 25 Pa. Code 90.49, Stream 
Buffer Zone Variance is inconsistent with Federal regulations. FWS 
indicated that the Federal regulations at 30 CFR 816.57 would prevent 
disturbance of a stream channel in the ephemeral portion of streams, 
100 feet upstream of the intermittent zone and is therefore more 
protective of water quality and the stream's other environmental 
resources than PADEP's language. Our review of this section finds that 
it is similar to the stream buffer zone requirements of 25 Pa. Code 
86.102(12) regarding areas not suitable for mining that we previously 
approved. Additionally, it appears that Pennsylvania's stream buffer 
zone may protect more area around streams, including the ephemeral zone 
upstream from an intermittent portion of a stream, because it includes 
areas 100 feet from an intermittent or perennial stream bank, and not 
just the stream itself. As a result, we have found that Pennsylvania's 
regulations regarding buffer zones are no less effective than the 
Federal regulations.
    FWS further indicated that language at 25 Pa. Code 90.49(c)(1) that 
states that a stream buffer zone variance will only be granted if the 
operator demonstrates to the satisfaction of PADEP that coal refuse 
disposal will not adversely affect water quality or other environmental 
resources of the stream and will not cause or contribute to the 
violation of water quality standards is not as effective as the 
requirement of 30 CFR 816.57. FWS indicated that the Federal regulation 
requires that the regulatory authority must make a finding that the 
stream will be protected. We find that Pennsylvania's regulation does 
require it to make a finding that the stream will be protected because 
it requires that any demonstration by the operator be made to the 
Department's satisfaction. The Department will not be satisfied with 
substandard demonstrations and therefore will not allow a variance in 
those circumstances. We have found Pennsylvania's regulation to be no 
less effective than the Federal regulation.
    Finally, regarding the stream buffer zone regulation at 25 Pa. Code 
90.49(c)(1), FWS indicated that the words, ``as a result of the 
variance'' are also inconsistent with 30 CFR 816.57(a)(1) which states 
``[s]urface mining activities will not cause or contribute to * * *'' 
We find that because both 30 CFR 816.57(a)(1) and 90.49(c)(1) are 
specifically written for stream buffer zones, there is no significant 
difference between the language of these two sections. In other words, 
implicit in the language of the Federal regulation is the required 
finding that, as a result of the variance, there will be no adverse 
effects on water quality or quantity or other environmental resources 
of the stream nor violations of the State or Federal water quality 
standards. Both 25 Pa. Code 90.49(c)(1) and 30 CFR 816.57(a)(1) 
indicate the conditions under which a buffer zone variance will be 
issued and Pennsylvania's language is no less effective than the 
Federal regulation in communicating those conditions.
    FWS's other concern was with threatened and endangered species. FWS 
indicated that language to ensure the protection of Federally listed 
threatened or endangered species was removed from the on-line version 
of PADEP's Technical Guidance Document 563-2113-660 titled, ``Coal 
Refuse Disposal--Site Selection.'' PADEP indicated that a footnote 
containing the referenced language was inadvertently removed from the 
on-line version of the Technical Guidance Document. The footnote has 
subsequently been restored to the on-line version of the document. The 
footnote, as it now appears on page 4, reads:

    PADEP's Section 4.1 (b) of CRDCA prohibits coal refuse disposal 
on non-preferred sites that contain federally listed threatened or 
endangered species. With respect to preferred sites, the Department 
will not approve (via the site selection process) or permit (via the 
permitting process) a site that is known or likely to contain 
Federally listed threatened or endangered species, unless the 
Department concludes and the U.S. 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.

    In our final rule of April 22, 1998 (63 FR 19802), we indicated 
that the proposed site selection provision at subsection 4.1(b) of the 
CRDCA was approved to the extent of the provisions contained in the 
above language. Consequently, we find that FWS's concern has been 
answered.
    MSHA's Wilkes-Barre Office replied on January 14, 2002, 
(Administrative Record No. PA 837.104) that the amendment did not 
conflict with existing MSHA regulations. On January 23, 2002, MSHA's 
New Stanton Office (Administrative Record No. PA 837.105) replied that 
the amendment did not conflict with its refuse pile regulations.
    NRCS replied on January 29, 2002, (Administrative Record No. PA 
837.106) that it found no inadequacies with the proposed amendment.

[[Page 56775]]

    In regard to Pennsylvania's submission under Administrative Record 
No. PA 881.00, there were three responses from Federal agencies: two 
from MSHA and one from NRCS. MSHA's New Stanton Office replied on 
January 11, 2002, (Administrative Record No. PA 881.03) that the 
amendment did not conflict with any of MSHA's regulations under 30 CFR 
parts 75 and 77. MSHA's Wilkes-Barre Office replied on January 14, 
2002, (Administrative Record No. PA 881.04) that nothing in the 
amendment conflicted with existing MSHA regulations. NRCS replied on 
January 29, 2002, (Administrative Record No. PA 881.05) that it found 
no inadequacies with the proposed change.
    In regard to Pennsylvania's submission under Administrative Record 
No. PA 880.00, we received a response from MSHA's Wilkes-Barre office 
on September 6, 2002 (Administrative Record No. PA 880.04), indicating 
that it had no comments on the amendment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.). On February 25, 2002 (Administrative Record No. 
PA 837.107), EPA informed us that there are no apparent inconsistencies 
with the Clean Water Act or other statutes or regulations under EPA's 
jurisdiction regarding Pennsylvania's submission under Administrative 
Record No. PA 837.101. EPA had three additional comments:
    (1) EPA commended the portion of the amendment requiring the use of 
previously impacted areas for refuse disposal because of the 
environmental benefits of reclamation of previously impacted areas and 
because it would spare non-impacted areas that would otherwise be 
designated as refuse disposal sites.
    OSM accepts the comments and also recognizes the environmental 
benefits of Pennsylvania's refuse disposal regulations.
    (2) EPA indicated that it is apparent that some refuse disposal 
fills will be in headwater areas and pointed out that filling of waters 
of the United States requires proper authorization under Section 404 of 
the Clean Water Act, administered by the U.S. Army Corps of Engineers.
    This comment is similar to one EPA made during its review of the 
changes to the CRDCA that precipitated this amendment. For a detailed 
discussion of OSM's response to the comment, see the final rule of 
April 22, 1998 (63 FR 19816-19819).
    (3) Discharges from refuse disposal sites into waters of the United 
States require National Pollutant Discharge Elimination System (NPDES) 
permits from the Pennsylvania Department of Environmental Protection. 
NPDES permits for refuse disposal discharges must meet the more 
stringent of effluent guideline regulations under 40 CFR part 434 or 
those effluent limits necessary to comply with Pennsylvania's water 
quality standards for the receiving stream.
    We note that one of the conditions of EPA's concurrence with the 
CRDCA involved the relationship between discharges and NPDES permits. 
For a full discussion of the Director's concurrence with this 
condition, see the final rule of April 22, 1998 (63 FR 19818-19819).
    On September 5, 2002 (Administrative Record No. PA 880.05), EPA 
also responded to our request for comments on Pennsylvania's submission 
under Administrative Record No. PA 880.00. After reviewing 
Pennsylvania's submission, EPA determined that there were no apparent 
inconsistencies with the Clean Water Act or other statutes and 
regulations under its jurisdiction.

V. OSM's Decision

    Based on the above findings, we approve the amendment Pennsylvania 
sent us on December 20, 2001. In addition, we are removing the required 
amendments codified at 30 CFR 938.16(hh), (kk), (vvv), (www), (xxx), 
(yyy), (zzz), (aaaa), and (bbbb).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 938, which codify decisions concerning the Pennsylvania 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and

[[Page 56776]]

Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. The basis for this 
determination is that our decision is on a State regulatory program and 
does not involve a Federal program involving Indian lands.

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 government 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: September 8, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

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


0
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 Pennsylvania regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
December 20, 2001.............  October 2, 2003..  25 Pa. Code 88.281,
                                                    88.310, 88.332,
                                                    89.59, 90.1, 90.5,
                                                    90.12, 90.13, 90.34,
                                                    90.45, 90.49, 90.50,
                                                    90.101, 90.116a,
                                                    90.122, 90.167,
                                                    90.201-207, 90.301-
                                                    309, and 90.401.
------------------------------------------------------------------------

Sec.  938.16  [Amended]

0
3. Section 938.16 is amended by removing and reserving paragraphs (hh), 
(kk), (vvv), (www), (xxx), (yyy), (zzz), (aaaa), and (bbbb).

[FR Doc. 03-24945 Filed 10-1-03; 8:45 am]
BILLING CODE 4310-05-P