[Federal Register Volume 85, Number 217 (Monday, November 9, 2020)]
[Rules and Regulations]
[Pages 71251-71263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23215]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-160-FOR; Docket ID: OSM-2010-0019; SIDIS SS08011000 
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS5015201]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval, with one exception, of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, with one exception, an amendment to the 
Pennsylvania regulatory program (Pennsylvania program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
We are approving regulatory changes that involve the elimination of 
manganese from the list of pollutants tested for mining discharges when 
certain weather conditions exist. We are also approving statutory and 
regulatory changes, with one exception, that involve the treatment of 
post-mining pollutional discharges on regulated coal mining sites and 
include provisions involving passive treatment technologies and 
alternate effluent limitations.

DATES: Effective December 9, 2020.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Field Office Director, 
Pittsburgh Field Office, Office of Surface Mining Reclamation and 
Enforcement, Telephone: (412) 937-2827, email: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
IV. OSMRE's Decision
V. Statutory and Executive Order Reviews

I. Background on the Pennsylvania Program

A. Pennsylvania's Regulatory 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, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the Federal regulations. 30 
U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the 
Secretary of the Interior conditionally approved the 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 in the July 30, 1982, Federal 
Register (47 FR 33050). You can also find later actions concerning 
Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 
938.13, 938.15, and 938.16.

B. Pennsylvania's National Pollutant Discharge Elimination System 
(NPDES) Program

    The Clean Water Act (CWA) (33 U.S.C. 1251 et seq.) is based on the 
principle of federalism, with distinct roles for both the U.S. 
Environmental Protection Agency (EPA) and the states. The goal of the 
CWA is to restore and maintain the chemical, physical, and biological 
integrity of the nation's waters. The CWA generally focuses on two 
types of controls for point source (single identifiable source of 
pollution) discharges of pollutants to waters of the United States: (1) 
Water quality-based controls, based on State water quality standards, 
and (2) technology-based controls, based on effluent limitations 
guidelines and standards (ELGS).

[[Page 71252]]

    Effluent limitation guidelines, which are a subject of this notice, 
are regulatory standards established by the EPA as part of its NPDES 
program and apply to different categories of wastewater discharged to 
surface waters as authorized under section 304(b) of the CWA (33 U.S.C 
1314). EPA promulgated regulatory standards for various industrial 
categories based on the performance of treatment and control 
technologies. Coal mining industry requirements are found at 30 CFR 
part 434, Coal Mining Point Source Category BPT, BAT, BCT Limitations 
and New Source Performance Standards.
    The EPA standards at part 434 establish limitations on the 
concentration or quality of pollutants or pollutant properties (i.e., 
total suspended solids, iron, manganese, and settleable solids), which 
may be discharged to surface waters as a result of coal mining 
activity. The parameters and limitations for pollutants differ 
depending on factors such as the type of site, type of control 
technology involved, type of drainage, mining status, and weather 
conditions. These parameters and limitations can be found at subparts 
B., Coal Preparation Plants and Coal Preparation Associated Area, C., 
Acid or Ferruginous Mine Drainage, D., Alkaline Mine Drainage, E., 
Post-Mining Areas, and F., Miscellaneous Provisions.
    Regarding limitations on post-mining areas, we note that in 
response to a request for clarification from Pennsylvania, EPA 
concluded in a January 28, 1992, Memorandum that the requirements of 40 
CFR part 434 did not expressly apply to groundwater point source seeps 
discharged to navigable waters from a post-mining reclamation area 
(Administrative Record No. 853.16). EPA later stated that its position 
in 1992 does not reflect current EPA regulatory analysis. EPA stated 
that seepage at a reclamation site (surface mine in stage 2 reclamation 
as provided for in 30 CFR 800.40(c)(2)) does (emphasis added) include 
water that drains through waste rock, overburden, etc., rather than 
flows over the surface, and these seepages are subject to the effluent 
limit guidelines in 434 Subchapter E, Post-Mining Areas, which are a 
subject of this notice. See the EPA Concurrence and Comments section 
later in this notice.
    For sources discharging directly to surface waters, permitting 
authorities must incorporate the EPA-promulgated limitations and 
standards into discharge permits, where applicable, as required by 40 
CFR part 122, EPA Administered Permit Programs: The National Pollutant 
Discharge Elimination System. Effluent limitations serve as the primary 
mechanism in NPDES permits for controlling discharges of pollutants to 
receiving waters. When developing effluent limitations for an NPDES 
permit, a permit writer must consider limits based on both the 
treatment and control technologies available to control the pollutants 
(i.e., technology-based effluent limitations and standards (TBELS), 
which are addressed at 40 CFR part 434, and limits that are based on 
risks or impacts upon the receiving water (i.e., water quality-based 
effluent limitations and standards (WQBELS)), which are addressed at 40 
CFR part 131, Water Quality Standards. WQBELS are included in NPDES 
permits if TBELS alone are not sufficient to ensure compliance with 
applicable water quality standards.
    A State may assume the role of permitting authority if it has been 
authorized to administer the NPDES permit program under the authority 
of sections 3 18, 402, and 405(a) (National Pollutant Discharge 
Elimination System--NPDES) of the CWA. The Federal regulations at 40 
CFR part 123, State Program Requirements, provide the procedures EPA 
follows for approving, amending, and withdrawing a State program that 
has requested or assumed responsibility for administering the NPDES 
program under the CWA. Pennsylvania assumed responsibility for the 
administration of the NPDES program and its program regulations are 
found at 25 Pennsylvania Code (Pa Code) Chapter 92a, National Pollutant 
Discharge Elimination System--Permitting, Monitoring and Compliance. 
This regulation prescribes requirements necessary to implement the 
program under the CWA. Pennsylvania's NPDES regulations at 25 Pa Code 
Sec.  92a.12, Treatment Requirements, at subsection (a)(l) refer to the 
ELGS established under chapters 87-90 of 25 Pa Code, which pertain to 
the ELGS for coal mining and are a subject of this notice. 
Pennsylvania's water resource regulations, which include regulations 
involving water quality standards and implementation, are found at 
chapters 91-111 of 25 Pa Code.

II. Submission of the Amendment

A. Statutory and Regulatory Program Changes

    By letter dated October 1, 2010, Pennsylvania submitted an 
amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) 
(Administrative Record No. PA 854.03). We announced receipt of the 
proposed amendment in the March 25, 2011, Federal Register (76 FR 
16714), (Administrative Record No. PA 854.08). In the same document, we 
opened the public comment period and provided an opportunity for a 
public hearing or meeting on the adequacy of the amendment. We did not 
hold a public hearing or meeting because none was requested. The public 
comment period ended on April 25, 2011. We received comments from a 
consulting company and an environmental organization, which are 
addressed in the Public Comments section found later in this Federal 
Register notice.
    The amendment submitted to us involves two types of changes: (1) 
The elimination of manganese from the list of parameters tested for 
mining discharges when certain weather conditions exist, and (2) the 
addition of provisions that address the treatment of post-mining 
pollutional discharges on regulated coal mining sites, including 
provisions involving passive treatment technologies and alternate 
effluent limitations. Part of the amendment involves changes initiated 
by the State (elimination of manganese) and the other part involves 
changes submitted as a result of a request from us (passive treatment 
systems and ELGS). These changes are described below. We note that the 
term ``post-mining pollutional discharges'' is sometimes spelled in the 
Federal and State regulations with a hyphen and sometimes without a 
hyphen. In this document the use of ``post-mining pollutional 
discharges'' with a hyphen will represent both alternative spellings.
1. Regulatory Provisions Involving ELGS Applicable During Precipitation 
Events
    Pennsylvania submitted this change at its own initiative. It 
involves regulatory changes to the mining regulations at 25 Pa. Code 
subsections 87.102(a), 88.92(a), 88.187(a), 88.292(a), 89.52(c), and 
90.102(a) related to ELGS. These subsections are nearly identical but 
are found at different parts of the Pennsylvania program as follows: 
Surface coal mining at 87.102(a); anthracite coal mining activities at 
sections 88.92(a), 88.187(a), and 88.292(a); underground mining 
activities at 89.52(c); and coal refuse disposal areas at 90.102(a). 
These subsections address effluent criteria for discharges occurring or 
having occurred due to surface and anthracite coal mining activities, 
underground coal mining, and coal refuse disposal operations.
    Pennsylvania's OSMRE-approved regulatory program incorporates all 
of the ELGS prescribed by EPA for coal mining point sources and 
incorporates

[[Page 71253]]

them at 25 Pa Code chapters 87-91. Pennsylvania's program includes 
three groups of effluent criteria at these subsections and they are 
labeled Groups A, B, and C. Group A ELGS apply for pit water, during 
dry conditions for surface runoff from active surface mining areas, 
areas where stage 2 standards have been achieved (revegetation has been 
established), drainage from coal refuse disposal piles, drainage from 
underground mine workings, and all other discharges; Groups B and C 
ELGS apply to all of the above discharges except pit water and 
underground mine workings. Group B ELGS apply when there is an increase 
in the volume of a discharge caused by precipitation within any 24-hour 
period less than or equal to a 10-year, 24-hour precipitation event; 
and Group C ELGS apply to a mining discharge when there is a greater 
than 10-year, 24-hour precipitation event.
    All three groups include discharge limitations that require 
alkalinity to be greater than acidity and the pH to be greater than 6 
but less than 9. The groups differ, however, regarding other 
parameters. Group A ELGS include iron, manganese, and suspended solids. 
Group B ELGS include iron, manganese, and settleable solids. Group C 
does not include any other limitations.
    Pennsylvania seeks to revise its regulations by removing manganese 
from Group B effluent criteria to be consistent with EPA standards at 
40 CFR 434.63, Effluent limitations for precipitation events, which 
provide alternate ELGS for discharges during precipitation events. 
These alternate ELGS are less stringent than those prescribed for 
discharges during dry conditions and vary depending on factors such as 
the mining status (active or post-mining), volume of precipitation, 
type of discharge (alkaline or acid or ferruginous mine drainage), and 
the type of mine operation or facility that is involved. Because 
Pennsylvania's regulatory program includes a manganese limitation for 
discharges during precipitation events at Group B and EPA does not 
include manganese as a limitation in its regulations at 40 CFR 434.63, 
Pennsylvania seeks to remove manganese from the list of pollutant 
limitations required for these discharges.
    Pennsylvania states its regulations at 25 Pa Code, Chapter 87, 
Surface Mining of Coal, Chapter 88, Anthracite Coal, Chapter 89, 
Underground Mining of Coal and Coal Preparation Facilities, and Chapter 
90, Coal Refuse Disposal, are consistent with EPA regulations at 40 CFR 
part 434. Pennsylvania states that its revised regulations are 
consistent with EPA's regulations under the CWA and that because SMCRA 
and its implementing regulations require compliance with the CWA, the 
revised regulations should be approved.
2. Statutory and Regulatory Provisions Involving Treatment of Post-
Mining Pollutional Discharges
    Pennsylvania submitted additional program provisions in response to 
a letter from us on July 7, 2010. In the letter, we notified the State 
that we became aware that the provisions in 25 Pa. Code Sec.  
87.102(e), Hydrologic balance: Effluent standards, Post-mining 
pollutional discharges, while enacted and codified by the State in 
1997, had not been submitted to us for approval (Administrative Record 
No. PA 854.24). In response, Pennsylvania submitted statutory and 
regulatory changes that address the treatment of post-mining 
pollutional discharges.
    Pennsylvania seeks to revise its program by adding the statutory 
provisions at section 4.26 (52 P.S. Sec.  1396.4b(j)) of Pennsylvania's 
Surface Mining Conservation and Reclamation Act (PA SMCRA), 52 P.S. 
Sec. Sec.  1396.1-1396.19. Pennsylvania also seeks to revise its 
program by adding the implementing regulatory provisions at 25 Pa. Code 
Sec. Sec.  87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e) as 
adopted by Pennsylvania's Environmental Quality Board (EQB) on November 
19, 1997. The provisions are nearly identical, but are found at 
different parts of the Pennsylvania program as follows: Surface coal 
mining at 25 Pa. Code Sec.  87.102(e); anthracite coal mining 
activities at 25 Pa. Code Sec. Sec.  88.92(e), 88.187(e), and 
88.292(e); and coal refuse disposal areas at 25 Pa. Code Sec.  
90.102(e).
    In summary, these new provisions define a post-mining pollutional 
discharge and a passive treatment system; establish eligibility 
criteria for using passive treatment systems to address post-mining 
pollutional discharges; provide alternate ELGS for qualifying 
discharges; and prescribe passive treatment design requirements. The 
changes are described below.
    a. Statutory Changes: Pennsylvania seeks to add section 4.2(j) of 
PA SMCRA, which provides for the following:
    (1) Authorizes the EQB to revise existing regulations and establish 
TBELS for classes or categories of post-mining pollutional discharges 
from surface mining activities that have achieved stage 2 reclamation 
standards and that the Pennsylvania Department of Environmental 
Protection determines can be adequately treated using passive treatment 
systems;
    (2) establishes two classes/categories of post-mining pollutional 
discharges deemed suitable for using passive treatment systems as 
identified below:
    (a) Discharges that have a pH which is always greater than 6.0 and 
an alkalinity which always exceeds the acidity; or
    (b) discharges that have an acidity which is always less than 100 
mg/L, an iron content which is always less than 10 mg/L, a manganese 
content which is always less than 18 mg/L, and a flow rate which is 
always less than three gallons per minute (gpm);
    (3) requires regulations to contain TBELS established using best 
professional judgment (BPJ);
    (4) requires post-mining pollutional discharges to comply with 25 
Pa. Code Chapters 92 and 93, relating to NPDES and water quality 
standards, respectively; and
    (5) allows a person to petition the EQB for rulemaking under this 
subsection.
    b. Regulatory Changes: Pennsylvania seeks to add regulatory 
provisions at 25 Pa Code that address the treatment of post-mining 
pollutional discharges. These new provisions include: Definitions; 
eligibility criteria for determining discharges that are suitable for 
the use of passive treatment technologies; alternative ELGS; and 
passive treatment design requirements. We have summarized these 
provisions below.
    (1) Definitions: Pennsylvania seeks to revise section 86.1 by 
adding two definitions (passive treatment system and post-mining 
pollutional discharge) to the list of definitions pertaining to the 
coal mining program.
    (a) Passive Treatment: Pennsylvania defines passive treatment as a 
mine drainage treatment system that does not require routine 
operational control or maintenance. It includes biological or chemical 
treatment systems, alone or in combinations, as approved by the State, 
such as artificially constructed wetlands, cascade aerators, anoxic 
drains, or sedimentation basins.
    (b) Post-mining Pollutional Discharge: Pennsylvania defines a post-
mining pollutional discharge as a discharge of mine drainage emanating 
from or hydrologically connected to the permit area, which may remain 
after coal mining activities have been completed and which does not 
comply with the applicable effluent limit requirements of 25 Pa. Code 
Sec. Sec.  87.102, 88.92, 88.187, 88.292, 89.52, or 90.12. The term 
includes ``minimal-impact post-mining pollutional discharges'' as 
defined in

[[Page 71254]]

section 3 of PA SMCRA (52 P.S. Sec.  1396.3).
    (2) Treatment of Post-mining Pollutional Discharges: Pennsylvania 
seeks to add subsections 87.102(e), 88.92(e), 88.187(e), 88.292(e), and 
90.102(e), which address the treatment of post-mining pollutional 
discharges. We have summarized these provisions below.
    (a) Effluent Limitation Guidelines and Standards: The provisions at 
subsections (e)(l) and (e)(2) require the discharger to provide 
treatment of post-mining pollutional discharges to meet Group A 
standards, the most stringent standards, and take any measures that are 
available and necessary to abate the discharge, including modifying the 
operation and reclamation plan. If, after this interim period, the 
discharge still exists, the operator must arrange for sound future 
treatment that will achieve compliance with Group A standards, which 
involve iron, alkalinity, suspended solids, and manganese. However, if 
the discharge can be adequately treated using a passive treatment 
system, alternate standards involving iron and alkalinity apply.
    (b) Eligibility Criteria of Suitable Discharges for Passive 
Treatment Systems: The provisions at subsections (e)(2) establish 
classes or categories of post-mining pollutional discharges deemed 
suitable for using passive treatment systems. They include, but aren't 
limited to:
    (i) Where pH is always greater than 6.0 and alkalinity always 
exceeds acidity;
    (ii) where acidity is always less than 100 mg/L, iron is always 
less than 10 mg/L, manganese is always less than 18 mg/l, and flow is 
always less than 3 gpm; and
    (iii) where net acidity is always less than 300 mg/L. Net acidity 
is calculated by subtracting the alkalinity of the discharge from its 
acidity.
    (c) Alternate ELGS: The provisions at subsections (e)(3) prescribe 
alternate ELGS if the untreated discharge can be adequately treated 
using a passive treatment system. The following effluent limitations 
apply in lieu of those in Group A:
    (i) Reduce the iron concentration by at least 90 percent or by the 
percentage necessary to achieve Group A effluent requirements, 
whichever percentage is less; and
    (ii) produce an effluent alkalinity which exceeds effluent acidity.
    (d) Passive Treatment System Design: The provisions at subsections 
(e)(4) and (e)(5) require that passive treatment systems be designed to 
prevent leakage of mine drainage into the groundwater system; prevent 
groundwater and surface water runoff Lin-impacted by mining from 
entering the treatment system; hydraulically handle the highest average 
monthly flow-rate which occurs during a 12-month period; have inlet and 
outlet structures which allow for flow measurements and water sampling; 
prevent to the maximum extent possible physical damage and associated 
loss of effectiveness due to wildlife and vandalism; and be of a 
capacity so that they will operate effectively and achieve the required 
effluent quality for 15 to 25 years before needing to be replaced. The 
provisions require the system to be designed by and constructed under 
the supervision of a qualified professional knowledgeable in the 
subject of passive treatment of mine drainage.
    Pennsylvania contends that these changes are consistent with EPA's 
1992 guidance memorandum (see discussion below). Specifically, 
Pennsylvania references the 1992 EPA memorandum relating to the 
applicability of 40 CFR part 434 to post-mining discharges from surface 
mines and points out that the memorandum confirmed that certain post-
mining discharges are not addressed in 40 CFR 434. Pennsylvania states 
its provisions are consistent with the memorandum because the 
memorandum provides that in the absence of established ELGS, 
technology-based limits are developed on a best professional judgment 
(BPJ) basis.

B. Supporting References and Documents

    In addition to the statutory provisions and revised regulations 
submitted for approval, Pennsylvania also provided an Analysis Document 
to assist with our review. It includes citations of OSMRE regulations 
at 30 CFR 816.42 and 817.42 (Hydrologic balance: Water quality 
standards and effluent limitations, for surface mining and underground 
mining respectively) and EPA regulations at 40 CFR part 434, Coal 
Mining Point Source Category BPT, BAT, BCT Limitations and New Source 
Performance Standards. It also references the following documents:

1. EPA Memorandum dated January 28, 1992, addressed to Pennsylvania 
Department of Environmental Resources, and entitled ``Application of 40 
CFR Part 434 to Post-Mining Ground Water Point Source Seeps from 
Surface Mines''

    The EPA, in response to a request for clarification from 
Pennsylvania, concluded in this memorandum that the requirements of 40 
CFR part 434 do not expressly apply to groundwater point source seeps 
discharged to navigable waters from a post-mining reclamation area. The 
EPA suggested that Pennsylvania establish TBELS for post-mining 
groundwater seeps from reclamation areas using BPJ, provided sufficient 
facts support control of the discharge by an NPDES permit and provided 
it is appropriate to impose TBELS, rather than WQBELS.

2. Pennsylvania Report dated 1994, entitled ``Best Professional 
Judgment Analysis for the Treatment of Post-mining Discharges from 
Surface Mining Activities''

    This report is used to support Pennsylvania's reliance on BPJ, in 
the absence of EPA-prescribed TBELS, to establish the treatment 
requirements for post-mining pollutional discharges.

C. Supplemental Information

    As required by Federal regulations at 30 CFR 732.17(h)(11)(ii), we 
are required to obtain 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 CWA (33 U.S.C. 1251 et 
seq.) or the Clean Air Act (CAA) (42 U.S.C. 7401 et seq.). The revision 
that Pennsylvania proposes to make in this amendment pertains to water 
quality standards. Therefore, we asked EPA to comment and provide 
concurrence regarding the amendment.
    During the amendment review process, we communicated with EPA and 
Pennsylvania on several occasions. The information obtained through the 
interaction between us, EPA, and Pennsylvania is germane to our 
findings. We summarize the communications in the EPA Concurrence and 
Comments section found later in this Federal Register document. Our 
findings should be read along with that section in order to fully 
understand the rationale that led to our decision.

III. OSMRE's Findings

    The following are the findings we made concerning the amendment 
under SMCRA at 30 U.S.C. 1253 and the Federal regulations at 30 CFR 
732.15, Criteria for approval or disapproval of state programs, and 30 
CFR 732.17, State program amendments. We are approving, with one 
exception, the amendment as described below.

A. Effluent Limitations Applied During Precipitation Events

    Federal SMCRA at subsections 515(b)(10) and 516(b)(9) (30 
U.S.C.1265(b)10) and 30 U.S.C. 1266(b)(9)) and the Federal regulations 
at 30 CFR 816.41 and 817.41,

[[Page 71255]]

Hydrologic-balance protection, for surface mining and underground 
mining respectively, require that surface coal mining and reclamation 
operations be conducted to minimize disturbance to the prevailing 
hydrologic balance and to the quantity and quality of water in surface 
water and groundwater systems, both during and after mining and during 
reclamation. In addition, subsections 510(b)(2) and (3) of SMCRA (30 
U.S.C. 1260(b)(2) and (3)) and 30 CFR 773.15, Written findings for 
permit application approval, subsections (b) and (e) prohibit the 
regulatory authority from approving a permit application unless the 
applicant has demonstrated that reclamation can be accomplished and 
that the proposed operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area.
    The regulations at 30 CFR 816.41 and 817.41 require that, among 
other things, mining and reclamation practices that minimize water 
pollution and changes in flow must be used in preference to water 
treatment. Consistent with this approach, subsection (b)(l) and (d)(l) 
of 816.41 and 817.41 require that surface water and ground water 
quality must be protected by handling earth materials and runoff in a 
manner that minimizes the formation of acid and toxic forming 
materials. However, when water treatment is unavoidable, sections 
816.42 and 817.42 specify that discharges must be made in compliance 
with applicable State and Federal water quality laws, regulations, and 
effluent limitations. These effluent limits and water quality standards 
include all applicable State and Federal water quality laws and 
regulations, including the ELGS for coal mining as promulgated by EPA 
and set forth in 40 CFR part 434.
    The EPA regulations at section 40 CFR 434.63 provide alternate 
limitations for discharges during precipitation events and they apply 
to discharges involving surface mining, coal prep plants, coal refuse 
disposal areas, and reclamation areas. This section does not apply to 
discharges from underground workings of an underground mine, unless 
comingled with other eligible discharges. We note that section 434.63 
does not provide a manganese limitation for any precipitation event.
    There are no specific OSMRE regulations addressing effluent 
limitations; however, we note that OSMRE regulations included ELGS for 
surface coal mining and reclamation operations at one time. On October 
22, 1982, these standards were removed and replaced with a reference in 
30 CFR 816.42 and 30 CFR 817.42 to EPA's effluent limitation standards. 
See 47 FR 47216, October 22, 1982, and 48 FR 44006, September 26, 1983. 
This was done to eliminate unnecessary duplication and confusion 
between EPA's and OSMRE's standards and establish EPA as the 
responsible Federal agency for developing ELGS as they relate to coal 
mining activities. We note that Pennsylvania did not submit the 
proposed ELGS changes to EPA for approval. Because Pennsylvania's 
regulatory program incorporates, rather than references, ELGS in its 
coal mining regulations at 25 Pa Code Chapters 87-91, we received this 
amendment for processing. We sought EPA's concurrence on the changes 
during the review process. (See the EPA Concurrence and Comments 
section later in this notice.)
    OSMRE Finding: EPA's regulations at 40 CFR 434.63 do not require a 
manganese limitation for any precipitation event. Pennsylvania's 
elimination of manganese from Group B ELGS is consistent with EPA's 
requirements. For this reason and given EPA's concurrence, we find that 
the proposed revisions at 25 Pa. Code Sec. Sec.  87.102(a), 88.92(a), 
88.187(a), 88.292(a) 89.52(c), and 90.102(a) are consistent with the 
Federal regulations at 30 CFR 816.42 and 30 CFR 817.42, which require 
compliance with EPA effluent standards. Therefore, we are approving 
them.

B. Treatment of Post-Mining Pollutional Discharges

    There are no provisions or comparable definitions included in 
Federal SMCRA or OSMRE's regulations that address the treatment of 
post-mining pollutional discharges or the use of passive treatment 
systems. However, mechanisms to address unexpected post-mining 
pollutional discharges are necessary because it is beyond dispute that, 
despite best management practices, post-mining pollutional discharges 
may occur. Varying methods of treatment are employed to treat these 
unexpected discharges, including passive treatment systems. Passive 
treatment systems require ongoing operation and maintenance activity, 
but less frequent monitoring and continuous management than active 
treatment systems. Our policy directive, OSMRE Directive TSR-IO, Use of 
Wetland Treatment Systems for Coal Mine Drainage, explains our position 
regarding the use and benefits of wetland treatment systems, a form of 
passive treatment, for coal mine drainage. In TSR-10, we explain that 
because neither SMCRA nor its implementing regulations place 
limitations on the methodology used to treat acid or ferruginous 
discharge, we will neither promote nor discourage the use of 
constructed wetlands for treatment of mine drainage. This includes mine 
drainage that may or may not be net acidic.
    Pennsylvania's statutory provisions of section 4.2(j) of PA SMCRA, 
authorize Pennsylvania to: Revise existing regulations and establish 
TBELS for classes or categories of post-mining pollutional discharges 
that have achieved stage 2 reclamation standards and that Pennsylvania 
determines can be adequately treated using passive treatment systems; 
prescribe two categories of discharges deemed suitable for such 
treatment; require regulations to contain TBELS established using BPJ; 
require post-mining pollutional discharges to comply with NPDES and 
water quality standards; and allow a person to petition the EQB for 
rulemaking.
    We are approving the statutory language along with the implementing 
regulations, with one exception, for the reasons described below.
1. Definitions
    There are no comparable definitions of post-mining pollutional 
discharge or passive treatment system in Federal SMCRA or its 
implementing regulations. The definition of minimal-impact post-mining 
discharge, which is incorporated into Pennsylvania's definition of 
post-mining pollutional discharge at PASMCRA (52 P.S. Sec.  1396.3), 
has not been approved as part of the Pennsylvania program.
    We previously reviewed statutory and regulatory changes effected by 
Act 173, which included changes to 52 P.S. 1396.3, Definitions. We 
addressed the definition of minimal-impact post-mining discharge in a 
May 13, 2005, Federal Register notice (70 FR 25474) (Administrative 
Record No. 853.53). In that notice, which documented our findings 
pertaining to Pennsylvania Program Amendment No. PA-124, we summarized 
the statutory provisions of sections 4(g.1), (g.2), and (g.3) of PA 
SMCRA (52 P.S. Sec. Sec.  1396.4(g.1), (g.2), and (g.3)). These 
sections pertain to bond release at sites with post-mining pollutional 
discharges, and bond release at sites with minimal-impact post-mining 
discharges.
    In a letter dated December 23, 2003, Pennsylvania requested that we 
remove the statutory provisions of 1396.4(g.1), (g.2), and (g.3) from 
the PA-124 program amendment submission because its statutory 
definition of minimal-impact post-mining discharge at 52 P.S. Sec.  
1396.3 and the regulations for post-mining pollutional discharges

[[Page 71256]]

were not included in the proposed program amendment (Administrative 
Record No. 853.23). We granted that request and did not take any action 
with respect to proposed sections 4(g.1), (g.2), and (g.3).
    OSMRE Finding: Based on Pennsylvania's earlier request that we not 
take any action with respect to proposed statutory provisions of 52 
P.S. Sec. Sec.  1396.4(g.1), (g.2), and (g.3), we never approved the 
definition of minimal-impact post-mining discharge. For the reasons 
mentioned above and because it is not inconsistent with SMCRA and the 
implementing Federal regulations, we are approving the regulatory 
definition of post-mining pollutional discharge at 25 Pa. Code Sec.  
86.1, except for the reference to minimal impact post-mining 
discharges. We are deferring our decision on the inclusion of minimal 
impact post-mining discharges in the definition of post-mining 
pollutional discharge until such time as the State submits the 
definition of minimal-impact post-mining discharge to us as a proposed 
program amendment. We are also approving the regulatory definition of 
passive treatment system at 25 Pa. Code Sec.  86.1 because it is not 
inconsistent with SMCRA and the implementing Federal regulations.
2. Statutory Provisions and Eligibility Criteria for Suitable 
Discharges for Passive Treatment Systems
    As stated above, there are no direct Federal counterparts to these 
amendments, either in SMCRA or in its implementing regulations. 
However, neither SMCRA nor its regulations prohibit the use of passive 
treatment on bonded sites with post-mining pollutional discharges. 
Moreover, SMCRA and its regulations are devoid of any threshold 
criteria authorizing the use of passive treatment systems on these 
sites.
    We note that while the statutory provisions at 4.2(j) of PA SMCRA 
identify two categories of discharges suitable for passive treatment, 
the regulatory provisions identify three categories as noted under the 
description of the regulatory changes at 25 Pa. Code Sec. Sec.  
87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e) above. The 
third category, which is included in the regulations, requires net 
acidity to always be less than 300 mg/L. In its program amendment 
submission letter, Pennsylvania states that its 1994 BPJ analysis 
supports the addition of the third category. In addition, the 
regulations allow Pennsylvania to extend the passive treatment 
authority to other discharges it deems appropriate.
    We asked Pennsylvania about the discrepancy between the statutory 
and regulatory provisions. In an email correspondence to us from 
Pennsylvania dated November 10, 2014, Pennsylvania stated that all of 
the regulations included in this amendment were adopted under the 
rulemaking authority of section 4.2(a) of the PA SMCRA (52 P. S. Sec.  
1396.4b(a)); section 5(b) of The Clean Streams Law (CSL) (35 P. S. 
Sec.  691.5(b)); section 3.2(a) of the Coal Refuse Disposal Control Act 
(CRDCA) (52 P. S. Sec.  30.53b(a)); and section 1920-A of the 
Administrative Code of 1929 (71 P. S. Sec. Sec.  510-20) which 
authorizes the EQB to adopt regulations necessary for the Department to 
perform its work. (Administrative Record No. PA 854.23).
    OSMRE Finding: There is no prohibition of the use of passive 
treatment technologies on bonded sites with pollutional discharges, in 
either SMCRA or its implementing regulations. Pennsylvania's provisions 
prescribing criteria for post-mining discharges deemed suitable for 
passive treatment are consistent with the conclusions of its 1994 BPJ 
analysis. With regard to the eligibility criteria and the discrepancy 
between the two statutory provisions and the three regulatory 
provisions, we find that Pennsylvania has demonstrated it has the 
general statutory authority to augment its regulations, and that it 
properly exercised that authority. We find the statutory and regulatory 
provisions, will result in construction of treatment systems for post-
mining pollutional discharges, which minimize disturbance of the 
hydrologic balance within the permit and adjacent areas, and prevent 
material damage to the hydrologic balance outside the permit area as 
required by 30 CFR 816.41(a). For the reasons mentioned above, we find 
the statutory provisions at section 4.2(j) of PA SMCRA and the 
regulatory provisions at subsection (e)(l) and (e)(2) of sections 
87.102, 88.92, 88.187, 88.292, and 90.102 are not inconsistent with 
SMCRA and its implementing regulations, and, therefore, we are 
approving them.
3. Alternate ELGS
    Pennsylvania's provisions at subsections (e)(3) of sections 87.102, 
88.92, 88.187, 88.292, and 90.102 provide for alternate ELGS that apply 
to post-mining pollutional discharges when passive treatment systems 
are authorized and Group A standards cannot be achieved. These 
alternate provisions do not involve limitations for manganese and 
suspended solids as required under Group A standards. When authorized, 
these ELGS apply to these post-mining pollutional discharges in 
addition to the ELGS prescribed by the EPA. EPA regulations at 40 CFR 
434.52, Effluent limitations guidelines representing the degree of 
effluent reduction attainable by the application of the best 
practicable control, provide an effluent requirement for discharges 
emanating from post-mining areas (reclamation areas until the 
performance bond issued to the facility by the appropriate SMCRA 
authority has been released). The regulation at subsection (a) of this 
section requires that the discharge have no more than 0.5 ml/L of 
settleable solids and a pH of between 6 and 9. We noted that 
Pennsylvania does not have ELGS involving settleable solids or pH for 
post-mining pollutional discharges from surface reclamation areas in 
its program submission.
    When we asked EPA about this omission, EPA responded that all 
discharge limits must be consistent with the CWA regardless of SMCRA or 
other applicable regulations. This means that, in accordance with 
section 301 of the CWA (33 U.S.C. 1311) and 40 CFR 122.44, Establishing 
limitations, standards, and other permit conditions (applicable to 
State NPDES programs), the more stringent of TBELS or WQBELS must be 
used to control point source discharges. Regardless of whether a TBEL 
or WQBEL is applied, any discharge must still meet all water quality 
standards.
    EPA advised that any NPDES permit issued by PADEP for post-mining 
pollutional discharges must still address pH and settleable solids 
limits. EPA advised that NPDES permits require pH discharges at levels 
between 6.0 and 9.0 unless a variance is granted pursuant to 40 CFR 
434.62. This variance allows the pH level to exceed 9.0 to a small 
extent, where the application of neutralization and sedimentation 
technology that slightly elevates the pH also results in the ability to 
comply with the manganese limitations. Similarly, settleable solids 
must meet applicable TBELS or WQBELS, even if there is no specific 
limit identified in 25 Pa. Code Chapters 87, 88, 89, and 90. The NPDES 
settleable solids permit limit is a maximum being implemented of 0.5 
ml/L. Therefore, we understand that NPDES permits issued for post-
mining pollutional discharges subject to subsections 87.102(e), 
88.92(e), 88.187(e), 88.292(e), and 90.102(e) from surface reclamation 
areas must meet the ELGS of 40 CFR 434.52(a) in addition to 
requirements of the chapters cited above. Pennsylvania's program 
requires strict adherence to the applicable ELGS contained in 25 Pa. 
Code Sec. Sec.  87.102(a),

[[Page 71257]]

88.92(a), 88.187(a), 88.292(a), and 90.102(a) until the construction of 
a passive treatment system is approved, at which time the requirements 
of subsections (e), which involve alternate limitations, apply.
    OSMRE Finding: Pennsylvania's regulations authorizing alternate 
limitations using passive treatment systems to address post-mining 
discharges at subsections (e)(3) are consistent with the conclusions of 
its 1994 BPJ analysis. The EPA has concluded and Pennsylvania has 
confirmed, that EPA's ELGS involving pH and settleable solids are still 
required under NPDES permits. In addition to the NPDES program 
requirements, Pennsylvania is required to meet all Federal and State 
water quality requirements. Therefore, given that EPA has provided 
concurrence for the amendment and for the reasons mentioned above, we 
find that the provisions at subsections (e)(3) of sections 87.102, 
88.92, 88.197, 88.292, and 90.102 are not inconsistent with SMCRA and 
the implementing Federal regulations, and we are approving them.
4. Passive Treatment Design
    As mentioned previously, there are no direct Federal counterparts 
to these amendments, either in SMCRA or in its implementing regulations 
that address passive treatment system, including design requirements 
for the construction and performance of such systems. Pennsylvania 
advises that regulatory design and performance standards at subsections 
(e)(4) and (e)(5) of 25 Pa. Code Sec. Sec.  87.102, 88.92, 88.187, 
88.292, and 90.102 will help ensure appropriate treatment systems are 
authorized. Pennsylvania has provided assurances that decisions 
regarding treatment of post-mining pollutional discharges will be made 
using current knowledge of passive treatment technology tools for 
evaluating the use of passive treatment and limitations of passive 
treatment technologies. Also, permit revision applications to construct 
passive treatment systems for post-mining pollutional discharges will 
be subject to the review of qualified agency staff with experience in 
passive treatment. For the reasons mentioned above, we find the 
provisions at subsections (e)(4) and (e)(5) of 25 Pa. Code Sec. Sec.  
87.102, 88.92, 88.187, 88.292, and 90.102 are not inconsistent with 
SMCRA and the implementing Federal regulations, and we are approving 
them.

IV. Summary and Disposition of Comments

Public Comments

    In the March 25, 2011, Federal Register notice announcing our 
receipt of this amendment, we asked for public comments (76 FR 16714). 
The comment period closed on April 25, 2011. No requests for public 
meetings or hearings were received. We received comments from a 
consulting firm (Hedin Environmental) on April 24, 2011 (Administrative 
Record No. PA 854.11). We also received public comments from one 
environmental organization, Citizens for Pennsylvania's Future 
(PennFuture), on two occasions (April 25, 2011, Administrative Record 
No. PA 854.09, and January 18, 2012, Administrative Record No. PA 
854.14). We discuss these comments below.
    Hedin Environmental: Hedin Environmental (Hedin), which specializes 
in the passive treatment of contaminated coal mine drainage, commented 
that experience and data demonstrates that when passive systems are 
properly designed, acidity, iron, and aluminum contaminants are 
reliably decreased to concentrations compliant with the proposed 
effluent standards. Hedin stated that passive treatment techniques are 
available for manganese removal; however, this treatment is less 
reliable.
    Hedin further commented that all treatment technologies, including 
passive treatment technologies, fail when improperly designed. Even 
though the proposed amendment requires that treatment systems be 
designed by qualified personnel, Hedin proposes that OSMRE consider 
strengthening this requirement. Hedin stated that ineffective passive 
treatment systems have been designed by professional engineers without 
adequate experience and knowledge of passive technologies and design 
principles. Hedin opined that the problem is due, in part, to 
inexperienced engineer's improper use of the OSMRE's AMDTreat software 
program, a computer program developed to estimate treatment costs for 
mining discharges. Hedin noted that neither OSMRE nor Pennsylvania has 
a program that trains professionals in the design of passive treatment 
systems or provides accreditation for qualified professionals and that 
this should be corrected.
    OSMRE's Response: We agree with the comment that there are no 
Federal regulations pertaining to the design of passive treatment 
systems. Likewise, the Federal regulations do not prohibit the use of 
passive treatment systems on bonded sites with post-mining pollutional 
discharges. OSMRE concludes that the regulation requiring that the 
treatment system be designed by and constructed under the supervision 
of a qualified, professional knowledgeable in the subject of passive 
treatment of mine drainage is within the discretion of the PADEP. 
Additionally, if the passive treatment system fails to maintain a 
discharge within applicable water quality standards or effluent limits, 
the permittee will be subject to enforcement actions by PADEP and be 
required to modify the treatment system to ensure that it satisfies the 
established effluent limits in the applicable NPDES permit.
    Pennsylvania has provided assurances that decisions regarding 
treatment of post-mining pollutional discharges will be made using 
current knowledge of passive treatment technology tools for evaluating 
the use of passive treatment and limitations of passive treatment 
technologies. Also, permit revision applications to construct passive 
treatment systems for post-mining pollutional discharges will be 
subject to the review of qualified agency staff with experience in 
passive treatment. Pennsylvania advises that regulatory design and 
performance standards will help ensure appropriate treatment systems 
are authorized. Those standards are discussed in Technical Guidance 
Directive 563-2112-608, Constructed Wetlands for Mine Drainage 
Treatment, and Technical Guidance Directive 563-0300-101, Engineering 
Manual for Mining Operations; Chapter 6, Mine Drainage Treatment 
Facilities.
    We agree with the commenter that an improperly designed passive 
treatment system substantially increases the likelihood of partial or 
total system failure. Flawed designs can occur for any number of 
reasons including insufficient or inaccurate baseline data (flow rates 
and/or geochemistry), changed flow conditions, construction 
modifications, constrained site conditions, and poor engineering 
decisions. However, Pennsylvania regulations have safeguards in place 
to protect against passive treatment system failures. For example, the 
Pennsylvania regulation at 25 Pa. Code Sec.  87.117, Hydrologic 
Balance: Surface water monitoring, requires a permit holder to monitor 
and accurately measure and record the water quantity and quality of 
surface water to accurately assess discharges from the permit area and 
the effect of the discharge on the receiving waters. The monitoring of 
the flow and chemistry of post-mining pollutional discharges must be 
sufficient to enable the making of informed decisions regarding the 
type and scale of

[[Page 71258]]

treatment to be implemented. The Pennsylvania program requires that 
surface water be monitored for parameters that relate to the 
suitability of the surface water for current and approved post-mining 
land uses and to the objectives for protection of the hydrologic 
balance. Furthermore, module 8 of the permit application dictates how 
the baseline surface waters information is to be collected and the 
frequency.
    Moreover, we note that OSMRE's AMDTreat software has been 
recognized as an industry standard for estimating all types of long-
term mine drainage treatment costs. It provides for comparison of 
treatment costs for multiple systems and facilitates the development of 
long-term financial forecasting so that practical funding decisions can 
be made. AMDTreat is just one tool to be used for engineering design by 
experienced practitioners. Like any engineering tool, AMDTreat can be 
misapplied or used improperly. To avoid misapplication or improper use, 
OSMRE provides on-line tutorials for AMDTreat users, makes itself 
available for user questions, and provides outreach to users through 
various technical forums. OSMRE also provides training on the use of 
AMDTreat and on the theory and application of passive treatment 
technologies to regulatory authority personnel through its National 
Technical Training and Technical Innovations and Professional Services 
programs (TIPS).
    We disagree with Hedin's assertion that OSMRE does not train 
professionals in the design of passive treatment systems. Through its 
TIPS training program, OSMRE offers a course for State and Tribal 
employees entitled ``Passive Treatment: Theory and Application 
Workshop.'' This course provides information and exercises that are 
highly interactive and can be used to evaluate the characteristics of 
coal mine drainage and guide the selection and application of various 
passive treatment technologies designed to mitigate the impacts of 
discharges. For individuals or firms in the private sector, numerous 
educational programs on passive water treatment design are available 
from higher-education institutions or private entities. While we 
acknowledge the commenter's suggestion related to establishing an 
accreditation for the training of professionals in the design of 
passive treatment systems, neither SMCRA nor the Federal regulations 
currently provide for such a requirement. We conclude that the State 
program has the discretion to determine the design of any passive 
treatment system, which includes the selection of a qualified 
professional engineer to design and implement passive treatment 
systems.
    PennFuture: PennFuture's comments were limited to the provisions 
relating to the establishment of TBELs for post-mining pollutional 
discharges using BPJ. PennFuture provided the following two comments 
for our consideration:
    a. EPA Approval: PennFuture stated that to avoid creating a 
conflict, OSMRE should not approve the provisions at issue as an 
amendment to the State regulatory program unless EPA first (or 
simultaneously) approves them as a revision to Pennsylvania's NPDES 
program. PennFuture cited EPA regulations governing state NPDES 
permitting program approvals and contends that EPA must first approve 
this change because it involves NPDES requirements; therefore, OSMRE, 
approval should only take place after this has occurred. PennFuture 
states that when it comes to approving regulations that implement BPJ, 
EPA should provide approval first because BPJ determinations are 
required by and governed by the CWA and EPA's NPDES program 
regulations. As such, PennFuture states Pennsylvania should not 
implement its post-mining pollutional discharge regulations until they 
have been approved by EPA as a revision to its approved NPDES program 
under the CWA. PennFuture contends that unless and until EPA grants 
approval of Pennsylvania's proposed, categorical BPJ determinations 
through a formal approval of them as part of the Pennsylvania's NPDES 
program, OSMRE should not confuse the issue by approving them as part 
of Pennsylvania's approved regulatory program under SMCRA.
    OSMRE's Response: In its May 20, 2014, response to us, EPA noted 
that there had been numerous amendments to Pennsylvania's water quality 
chapters in Pa. Code Title 25, Environmental Protection, many of which 
would require EPA approval to become effective under the CWA. EPA, 
nevertheless, gave OSMRE its concurrence on August 20, 2013, in 
accordance with 30 CFR 732.17(h)(11)(ii). The question of whether the 
State's effluent limitations are effective under the CWA must be 
addressed to, and answered by, the EPA.
    Regarding approval of the 1994 BPJ analysis, EPA's clarification of 
its 1992 Memorandum essentially moots this point. EPA stated that all 
post-mining discharges from a permitted surface mine reclamation area 
must have an NPDES permit and meet the effluent limits of 40 CFR 
434.52(a), which require limitations involving pH and settleable solids 
for permitted reclamation areas. Pennsylvania has provided assurances 
that its implementing regulations will protect the hydrologic balance 
as required by 30 CFR 816.41 (a) and satisfy all the requirements of 
State and Federal water quality laws and regulations and comply with 
ELGS promulgated by EPA under 40 CFR part 434.
    b. Categorical Treatment Requirements and BPJ: PennFuture states 
``[b]linding, categorical treatment requirements of indefinite duration 
based on an analysis performed nearly two decades ago conflict with the 
[F]ederal and [S]tate water quality regulations governing BPJ.'' 
PennFuture contends that, because EPA does not apply ELGS to post-
mining pollutional discharges from surface mines, Federal and State 
water quality laws and regulations governing BPJ can be complied with 
by Pennsylvania coal operators if limits are established on a permit-
by-permit basis, rather than by standardized, categorical treatment 
requirements. The regulations proposed by Pennsylvania fail to meet 
this requirement, according to PennFuture, because they ``conflict with 
the four fundamental attributes of BPJ determinations under EPA's NPDES 
regulations.'' These attributes, PennFuture states are: (1) BPJ is 
case-by-case, not categorical; (2) BPJ is flexible, not fixed and 
binding; (3) BPJ determinations are updated regularly, and not of 
indefinite duration; and (4), ``BPJ is up to the minute, not stuck in 
the 1990s.''
    OSMRE's Response: We disagree with the comment. An underlying 
assumption upon which all of PennFuture's arguments are based is that 
EPA has no ELGS that apply to post-mining pollutional discharges from 
surface mines. That was the case when EPA's 1992 Memorandum was 
released, but it is not the case now. EPA has since stated that mine 
drainage includes ``any drainage and any water pumped or siphoned, from 
an active mining or a post-mining area.'' (emphasis added) 
(Administrative Record No. 854.17, citing 40 CFR 434.11 (definition of 
``mine drainage.'')). The specific ELGS applicable to post-mining areas 
may be found at the CWA regulation, 40 CFR 434.52. This provision 
establishes the ELGS for discharges from reclamation areas until the 
performance bond has been released. Because the effluent limits of 40 
CFR 434.52 apply to post-mining pollutional discharges, use of the 1994 
BPJ is no longer applicable except as a basis for the Pennsylvania 
Legislature's direction to allow passive

[[Page 71259]]

treatment for a certain type of post-mining discharge. PADEP has 
committed to following the ELGS of 40 CFR 434.52 for post-mining 
discharges through the proposed amendments to its regulations and NPDES 
permits for the treated discharges.
    The CWA regulations, at 40 CFR 125, Criteria and Standards for the 
National Pollutant Discharge Elimination System, establish the 
standards and criteria for the imposition of technology-based treatment 
systems. These requirements represent the minimum level of control that 
must be imposed on NPDES permits. It is only in the absence of such 
ELGS that BPJ-based, permit-specific limits may be imposed. 40 CFR 
125.3(c)(2). Because ELGS are in place for post-mining pollutional 
discharges from surface mines, BPJ determinations are not required. 
However, Pennsylvania may promulgate permit-specific, BPJ-based 
discharge limitations, so long as they supplement, rather than 
supplant, the ELGS promulgated by the EPA. The statutory portion of 
this program amendment authorizes the PADEP to do precisely that. 52. 
P.S. Sec.  1396.4b(j). Post-mining pollutional discharges that qualify 
for passive treatment must comply with the applicable Federal ELGS for 
post-mining discharges at 40 CFR 434.52(a), and with the additional 
requirements imposed by 25 Pa. Code Sec.  87.102(e)(3), and with 
applicable water quality standards, where those standards are more 
stringent than the Federal ELGS.
    Finally, as noted above in response to another comment, 
Pennsylvania has provided assurances that decisions regarding treatment 
of post-mining pollutional discharges will be made using current 
knowledge of passive treatment technology tools for evaluating the use 
of passive treatment, and limitations of passive treatment 
technologies. Also, permit applications to construct passive treatment 
systems for post-mining pollutional discharges will be subject to the 
review of qualified agency staff with experience in passive treatment. 
Pennsylvania advises that regulatory design and performance standards 
will help ensure appropriate treatment systems are authorized and 
covered by bond or other financial assurance.

Federal Agency Comments

    On October 15, 2010, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the 
Pennsylvania program (Administrative Record No. PA 854.04). The summary 
of the responses are described below.
    The Mine Safety and Health Administration (MSHA), District 1, in a 
letter dated November 9, 2010, responded that it does not have any 
comments or concerns with this request (Administrative Record No. PA 
854.05).
    The U.S. Fish and Wildlife Service (USFWS), in a letter dated April 
27, 2011, provided comments regarding the proposed amendment 
(Administrative Record No. PA 854.10). Its comments were limited to the 
establishment of limitations addressing manganese in post-mining 
pollutional discharges. The USFWS noted that technology based treatment 
requirements using BPJ are prescribed when EPA ELGS do not exist. The 
USFWS provided comments involving manganese and the effects on fish and 
wildlife resources.
    The USFWS stated that tolerance limits for fish and 
macroinvertebrate populations reported in the literature vary widely 
for manganese and are dependent on the individual test organism. 
According to the USFWS, less information was available, at least as of 
2011, on the effects of elevated manganese concentrations on aquatic 
life than the effects of other metals associated with acid mine 
drainage, such as iron and aluminum. Research has found correlations 
between dissolved metals that are at or near toxic levels for fish and 
invertebrates and the associated levels of these metals in tissues of 
fish and invertebrates. These levels are shown to have impacts on 
populations of trout and invertebrates. The USFWS stated that, based on 
the limited literature available at that time, manganese toxicity 
appears to have the potential to negatively impact the aquatic life in 
receiving streams of discharges that would fall under this amendment.
    USFWS questioned whether factors such as maintaining the biological 
integrity of the receiving stream have been considered on these sites 
where Pennsylvania is using BPJ, which, according to the USFWS, must be 
used when setting a limit for manganese because manganese is a non-
priority pollutant under section 304(a) of the C WA, (33 U.S.C. 1314), 
and has no ELGS in fresh water.
    OSMRE's Response: We forwarded the question about the biological 
integrity of the stream from manganese discharges to EPA by letter 
dated January 20, 2014 (see summary of the letter under the EPA 
Concurrence and Comments section below). EPA responded by letter dated 
May 20, 2014 (discussed in the section that follows). The EPA response 
stated that under 40 CFR 122.44(d)(1)(ii), Whole Effluent Toxicity 
(WET) testing can and should be used to ensure discharges are not toxic 
and dangerous to aquatic life. EPA also noted 25 Pa. Code Sec.  93.6, 
General Water Quality Criteria, which states in part, ``[w]ater may not 
contain substances attributable to point or nonpoint source discharges 
in concentration or amounts sufficient to be inimical or harmful to the 
water uses to be protected or to human, animal, plant or aquatic 
life.'' As such, this regulation requires protection of the biological 
integrity of receiving streams. EPA further advised that it is in 
discussions with Pennsylvania about the need to include WET testing 
requirements in mining NPDES permits. However, Pennsylvania does not 
use WET testing on mine permits. Instead, at the approval of the EPA, 
Pennsylvania uses Osmotic Pressure to assess impacts of mine discharges 
on receiving streams.
    Further, by letter of July 2, 2014 (discussed in the section that 
follows), EPA clarified that all Pennsylvania streams are designated 
potable water supply (PWS) and that, pursuant to 25 Pa. Code Sec.  
96.3(c), manganese is a PWS standard and subject to compliance with in-
stream water quality criteria of a maximum of 1 mg/L, to be measured at 
the point of discharge. Although there is no manganese effluent limit 
for post-mining discharges from surface mines under 40 CFR 434.52, 
Pennsylvania regulations at 25 Pa. Code Sec.  96.3, Water quality 
protection requirements, and, by reference, 25 Pa. Code Sec.  93.7(a), 
Specific water quality criteria, are governing. PADEP has committed to 
requiring a post-mining pollutional discharge to be treated 
sufficiently by the discharger to meet the more stringent of the 
applicable technology-based effluent limits or the water quality 
standards in Chapters 91-96, including the iron and manganese criteria 
for aquatic life and potable water supply use protection in Chapter 93 
through its coal mining regulatory program. Because EPA has classified 
all streams in Pennsylvania as PWS, thus subject to the 1 mg/L 
manganese standard, we conclude that compliance with these standards 
will meet the requirements of SMCRA and the CWA, regarding protection 
of the biological integrity of streams from manganese effluent from 
surface mining post-mining discharges. Based on the fact that 
Pennsylvania conducts testing in streams for monitoring biodiversity, 
we find Pennsylvania's implementing policies to protect the biological 
integrity of the streams.

[[Page 71260]]

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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 CWA (33 U.S.C. 1251 et seq.) or the CAA (42 U.S.C. 7401 et seq.). 
The revision that Pennsylvania proposes to make in this amendment 
pertains to water quality standards. Therefore, we asked EPA to concur 
on the amendment in a letter dated October 13, 2010 (Administrative 
Record No. 854.04). The EPA provided its conditional concurrence on 
August 20, 2013, and clarification on May 20, 2014, and March 26, 2015 
(administrative record numbers are identified below). Prior to 
providing its concurrence, EPA had communicated with us on several 
occasions and we and/or Pennsylvania responded to their concerns and 
comments. The entire content of the letters and communications can be 
found in the administrative record. We summarize the communications 
below:
    1. OSMRE's First Letter to EPA: We submitted the proposed program 
amendment to EPA for review, comment, and concurrence on October 13, 
2010 (Administrative Record No. PA 854.04).
    EPA sent us its first response to the proposed amendment on 
February 10, 2011, (Administrative Record No. PA 854.07), and concluded 
that it could not provide concurrence because of insufficient 
information contained in the submission. In order to provide 
concurrence, EPA requested additional information regarding: The 
definitions of passive treatment and post-mining pollutional discharge; 
classes/categories of discharges suitable for passive treatment; NPDES 
modifications; Pennsylvania's use of BPJ as documented in 1994; and 
manganese/water-quality based ELGS. The letter reaffirmed that 
compliance with the CWA is an integral part of SMCRA, and that 
Pennsylvania's permitting program must comply with regulations 
implementing the NPDES program and compliance with the CWA before 
approval or denial of new, modified, amended, or renewed permits.
    Pennsylvania responded to EPA's February 10, 2011, letter by 
sending us a letter on December 9, 2011 (Administrative Record No. PA 
854.12). Pennsylvania stated that subsection 87.102(e) establishes 
treatment standards for post-mining pollutional discharges from surface 
coal mining operations that are designed to supplement the ELGS 
established by EPA. Pennsylvania pointed out that the only EPA-
established ELGS for post-mining areas on surface mines are that 
discharges may not exceed 0.5 ml/L maximum for settleable solids and pH 
must be maintained in the range of 6.0 to 9.0 at all times.
    Pennsylvania also stated that dischargers are required to provide 
interim treatment to comply with Pennsylvania's Group A effluent 
requirements. These requirements include limits for iron, manganese, 
suspended solids, and alkalinity. In addition, Pennsylvania stated that 
a post-mining pollutional discharge must be treated sufficiently by the 
discharger to meet the more stringent of either the applicable TBELS or 
the WQBELS in Pennsylvania's program (at Chapters 91-96), including the 
iron and manganese criteria for aquatic life and PWS use protection in 
Chapter 93, Water Quality Standards.
    Regarding passive treatment systems, Pennsylvania clarified that 
the three subsets of discharges with defining criteria allowing for the 
use of passive treatment are a starting point and are not a substitute 
for actual performance of the passive treatment system. Pennsylvania 
stated the discharges must also meet in-stream numeric criteria for 
iron and manganese established in Chapter 93. Pennsylvania also 
mentioned that in addition to establishing TBELS for post-mining 
pollutional discharges, 25 Pa. Code Sec.  87.102(e) prescribes design 
and construction requirements for passive treatment systems that 
Pennsylvania determined would be necessary to adequately treat the 
identified subset of post-mining pollutional discharges. Further, it 
stated that this section and its counterpart sections supplement 
existing NPDES requirements and are not intended to implement the NPDES 
regulations for case-by-case development of TBELS requirements in 
permits.
    Pennsylvania responded to EPA's request for clarification of the 
definitions of passive treatment system and post-mining pollutional 
discharge by clarifying that passive treatment systems require ongoing 
operation and maintenance activity, but less frequent monitoring and 
continuous management; and that a post-mining pollutional discharge is 
a discharge emanating from, or hydrologically connected to, the permit 
area which remains after coal mining activities have been completed and 
does not meet effluent requirements in 25 Pa Code Sec.  87.102 or its 
parallel counterparts.
    Regarding EPA's concerns about NPDES permit modifications, 
Pennsylvania emphasized that PA SMCRA explicitly requires compliance 
with the regulations in Chapter 92a related to NPDES permitting and 
Chapter 93 related to water quality standards.
    Pennsylvania acknowledged that its BPJ guidance was finalized in 
1994 and that advances have been made over the past two decades but 
stated its staff is aware of technological improvements and has been 
applying this knowledge in practice for many years at specific sites.
    OSMRE submitted Pennsylvania's December 9, 2011, letter to EPA for 
review and response on January 4, 2012 (Administrative Record No. PA 
854.13).
    2. EPA 's Second Letter to OSMRE: EPA responded to Pennsylvania's 
December 9, 2011, letter by sending us a letter dated August 20, 2013 
(Administrative Record No. PA 854.15). EPA noted Pennsylvania's 
responses and provided its concurrence based on Pennsylvania's 
assertion that the more stringent of either TBELS or WQBELS will be 
used to determine the appropriate discharge limit from all outfalls 
subject to the referenced proposed revision. EPA also noted that its 
concurrence is contingent on Pennsylvania's assertion that Pennsylvania 
will not be using passive treatment regulatory standards for discharges 
emanating from underground mining operations. EPA recommended that 
Pennsylvania review its BPJ guidance for this proposed set of 
regulations and modify the guidance with any new information (including 
EPA's Acid Mine Drainage program implementation guidance) gained from 
studies performed by Pennsylvania and OSMRE.
    3. OSMRE's Third Letter to EPA: By letter dated January 20, 2014, 
(Administrative Record No. PA 854.16), we sought clarification from EPA 
regarding several issues and comments submitted during the public 
comment period. The issues involved: Clarification regarding a January 
28, 1992, Memorandum from EPA to Pennsylvania that concluded post-
mining ground water seeps from reclaimed surface mines are not subject 
to the requirements of 40 CFR 434.52(a) (ELGS for post-mining areas); 
clarification from EPA regarding a public comment that EPA must first, 
or simultaneously, approve the changes in Pennsylvania's NPDES program; 
additional direction from EPA regarding use of the 1994 BPJ analysis 
for post-mining pollutional discharges; information regarding 
application of

[[Page 71261]]

WQBELS for streams not designated as a PWS; and information regarding 
application of provisions of the CWA that protect the biological 
integrity of receiving streams from chemical or organic constituents of 
water discharged.
    4. EPA 's Third Letter to OSMRE: EPA responded to our letter of 
January 20, 2014, by sending us a letter dated May 20, 2014 
(Administrative Record No. PA 854.17). In response to the issues and 
concerns identified in our January 20, 2014, letter, EPA responded with 
the following explanation:
    Regarding EPA's position as presented in the January 28, 1992, 
Memorandum to Pennsylvania regarding treatment of post-mining 
discharges, EPA stated the position taken by EPA in 1992 does not 
reflect current EPA regulatory analysis. EPA responded that seepage at 
a reclamation site (surface mine in stage 2 reclamation) does (emphasis 
added) include water that drains through waste rock, overburden, etc., 
rather than flows over the surface, and these seepages are subject to 
the effluent limit guidelines in 434 Subchapter E, Post-mining Areas.
    Responding to a public comment that EPA must approve the proposed 
revisions as part of a revision to Pennsylvania's NPDES program, EPA 
requested that OSMRE identify those sections of the Pennsylvania 
program for which this would be necessary. Regarding Pennsylvania's use 
of 1994 BPJ information, EPA responded that it was, at the time, in 
discussions with Pennsylvania regarding its BPJ process.
    Regarding in-stream manganese WQBELS, EPA stated that in 
Pennsylvania, all streams are designated as PWS critical use and that, 
pursuant to 25 Pa. Code Sec.  96.3(c), manganese is a PWS standard. 
According to this letter, compliance must be evaluated at the nearest 
downstream drinking water intake from the discharge. As noted in EPA's 
fourth letter to OSMRE, however, this statement is erroneous.
    Regarding the protection of the biological integrity of receiving 
streams, EPA noted that under 40 CFR 122.44(d)(1)(ii), WET testing can 
and should be used to ensure discharges are not toxic and dangerous to 
aquatic life. EPA also noted 25 Pa. Code Sec.  93.6, which states in 
part, that, ``[w]ater may not contain substances attributable to point 
or nonpoint source discharges in concentration or amounts sufficient to 
be inimical or harmful to the water uses to be protected or to human, 
animal, plant or aquatic life.''
    5. EPA 's Fourth Letter to OSMRE: EPA sent us a letter on July 2, 
2014, (Administrative Record No. PA 854.18), to correct a response that 
was given by EPA in its May 20, 2014, letter to us that addressed 
WQBELS for manganese in streams that are not designated PWS, critical 
use. EPA stated that, contrary to what it said in its May 20, 2014, 
letter, manganese is monitored at the point of discharge, rather than 
at the nearest downstream drinking water intake from the discharge.
    6. OSMRE's First Letter to Pennsylvania: By letter dated August 7, 
2014, (Administrative Record No. PA 854.20), we requested additional 
information from Pennsylvania and notified Pennsylvania of EPA's change 
in interpretation regarding ground water seeps and the applicability of 
the limitations provided in 40 CFR part 434. We questioned Pennsylvania 
on its position of including 25 Pa. Code Sec.  87.102(e)(2)(iii), which 
is the third criterion involving permitted use of passive treatment for 
post-mining pollutional discharges involving a discharge with a net 
acidity always less than 300 mg/L, as a discharge criterion that is 
suitable for passive treatment. Further, we questioned the inclusion of 
the phrase ``but are not limited to'' in 25 Pa. Code Sec.  87.102(e)(2) 
because it would allow approval of the use of passive treatment on 
other discharges not specified. We also noted the passage of 20 years 
since the BPJ analysis was issued and the emergence of more recent 
studies and other more recent experience demonstrating the limitations 
of passive treatment technologies. We questioned how the provisions of 
25 Pa. Code Sec. Sec.  87.102(e)(3) and (4) would be enforced; how the 
reclamation needs will be bonded or otherwise financially secured; and 
who would be responsible for operation and maintenance of the treatment 
systems. We also noted that Pennsylvania's regulations do not address 
the 40 CFR 434.52 effluent requirement that the discharge have no more 
than 0.5 ml/L of settleable solids.
    7. Pennsylvania's Second Letter to OSMRE: Pennsylvania responded to 
our August 2014, letter on October 9, 2014, (Administrative Record No. 
854.21), with the following responses:
    Regarding our concern with the third category of discharges 
suitable for passive treatment (less than 300 mg/L of acidity) and the 
open-ended nature of the regulation that could lead to approval of 
passive treatment systems that cannot maintain effectiveness, 
Pennsylvania responded that the totality of the regulations prevents 
approval of a system that will not function well. Further, Pennsylvania 
asserted that only those passive treatment systems that can achieve the 
effluent requirements and can be designed and constructed to meet the 
performance requirements can be approved by Pennsylvania.
    Pennsylvania asserted that 25 Pa. Code Sec.  87.102(e)(3) and 
comparable sections in the other chapters are performance standards 
which must be met, and effluent limits will be determined and included 
in the NPDES permit that accompanies the SMCRA permit. Both the NPDES 
and SMCRA permits will be maintained as long as the post-mining 
pollutional discharge continues to require treatment. Pennsylvania 
advised that treatment systems will be bonded or otherwise financially 
secured in accordance with the approved program.
    Pennsylvania asserted that there are no Federal counterparts to the 
provisions in 25 Pa. Code Sec.  87.102(e) and comparable subsections, 
and, therefore, they are as effective as and no less stringent than the 
Federal requirements. Pennsylvania asserted it uses all the tools 
available in its technical review to ensure treatment of post-mining 
pollutional discharges is consistent with current scientific knowledge 
and uses the best system of performance.
    Regarding our concerns about the absence of a settleable solids 
limit in the Pennsylvania regulations for post-mining pollutional 
discharges, and recognizing that the EPA standards at 40 CFR 434.52(a) 
for post-mining areas require no more than 0.5 ml/L in the discharge, 
Pennsylvania responded that the narrative water quality standards at 25 
Pa. Code 93.6(b), Water quality criteria, addresses pollutants, 
turbidity, or settle-to-form deposits. Pennsylvania stated turbidity 
addresses suspended solids, while settle-to-form deposits address 
settleable solids and that NPDES permits for individual coal mining 
permits will properly address settleable solids.
    Regarding system performance monitoring and maintenance, 
Pennsylvania responded that the operator is responsible for compliance 
with the monitoring schedule in the NPDES permit and for operation and 
maintenance of the treatment systems.
    Regarding financial assurances for reclamation needs, Pennsylvania 
stated that the treatment systems will become part of the SMCRA and 
NPDES permits and will be bonded in accordance with financial assurance 
requirements approved by OSMRE on August 10, 2010. (78 FR 48526).
    8. EPA 's Fifth Letter to OSMRE: On March 26, 2015, (Administrative 
Record No. PA 854.22), EPA sent us a letter referencing its August 20, 
2013, concurrence letter and its January 20, 2014, follow-up letter. It 
reiterated its

[[Page 71262]]

conditional concurrence that made clear its approval is contingent upon 
Pennsylvania's assertion that the more stringent of either TBELS or 
WQBELS will apply to any NPDES discharge regardless of SMCRA 
obligations; that the provisions of 30 CFR 816.42, requiring that all 
applicable State and Federal water quality laws and regulations along 
with EPA effluent limitations in 40 CFR part 434 will apply; and 
neither SMCRA nor its implementing regulations supersede, modify, or 
repeal the CWA and its implementing regulations. EPA also stated that 
NPDES permits for post-mining pollutional discharges require the pH to 
be between 6.0 and 9.0 unless there is a variance and require that 
settleable solids not exceed 0.5 mg/L.

V. OSMRE's Decision

    Based on the above findings, we are approving the Pennsylvania 
amendment that was sent to us on October 1, 2010, with one exception. 
We are deferring our decision on the inclusion of minimal impact post-
mining discharges in the definition of post-mining pollutional 
discharge until such time as the State submits the definition of 
minimal impact post-mining discharge to us as a proposed program 
amendment.
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 938, that codify decisions concerning the 
Pennsylvania program. In accordance with the Administrative Procedure 
Act (5 U.S.C. 500 et seq.), this rule will take effect 30 days after 
the date of publication. 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. SMCRA 
requires consistency of State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionality Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of State program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    State program amendments are not regulatory actions under Executive 
Order 13771 because they are exempt from review under Executive Order 
12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3(a) of Executive Order 12988. The Department has determined 
that this Federal Register notice meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
Order did not extend to the language of the State regulatory program or 
to the program amendment that the Commonwealth of Pennsylvania drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
Section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Pennsylvania, through its approved 
regulatory program, implements and administers SMCRA and its 
implementing regulations at the state level. This rule approves an 
amendment to the Pennsylvania program submitted and drafted by the 
State, and thus is consistent with the direction to provide maximum 
administrative discretion to States.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175, and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal Government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the Pennsylvania program that does not include Tribal 
lands or regulation of activities on Tribal lands. Tribal lands are 
regulated independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251 
(a) and 1292(d), respectively) and the U.S. Department of the Interior 
Departmental

[[Page 71263]]

Manual, part 516, section 13.5(A), State program amendments are not 
major Federal actions within the meaning of section 102(2)(C) of the 
National Environmental Policy Act (42 U.S.C. 4332(2)(C).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

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

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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million in 
any given year. The rule does not have a significant or unique effect 
on State, local, or Tribal governments or the private sector. This 
determination is based an analysis of the corresponding Federal 
regulations, which were determined not to impose an unfunded mandate. 
Therefore, a statement containing the information required by the 
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

    For the reasons set out in the preamble, the Office of Surface 
Mining Reclamation and Enforcement amends 30 CFR part 938 as follows:

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 938.12 is amended by adding paragraph (f):


Sec.  938.12  State regulatory program and proposed program amendment 
provisions not approved.

* * * * *
    (f) We are deferring our decision on the inclusion of minimal-
impact post-mining discharge in the definition of post-mining 
pollutional discharge until such time as the State submits the 
definition of minimal-impact post-mining discharge to us as a proposed 
program amendment.

0
3. In Sec.  938.15 amend the table by adding under ``Date of Final 
Publication'' an entry for ``Section 4.2(j) of PASMCRA (52 P.S. Sec.  
1396.4bG)) at the end of the table to read as follows


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
October 1, 2010......................  November 9, 2020.......  Section 4.2(j) of PASMCRA 52 P.S. Sec.
                                                                 1396.4bj); 25 Pa. Code Sec.   86.1,
                                                                 Definitions, the definitions of the following
                                                                 terms: ``passive treatment system'' and ``post-
                                                                 mining pollutional discharge, except for the
                                                                 inclusion of ``minimal impact post-mining
                                                                 discharge'' in the definition of ``post-mining
                                                                 pollutional discharge'' 25 Pa Code 87.102(a)
                                                                 and (e), Hydrologic balance: Effluent
                                                                 standards; 88.92 (a) and (e); Hydrologic
                                                                 balance: Effluent standards; 88.187 (a) and
                                                                 (e), Hydrologic balance: Effluent standards;
                                                                 88.292 (a) and (e), Hydrologic balance:
                                                                 Effluent standards; 89.52 (c), Water quality
                                                                 standards, effluent limitations, and best
                                                                 management practices; and 90.102 (a) and (e),
                                                                 Hydrologic balance: Water quality standards,
                                                                 effluent limitations, and best management
                                                                 practices.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2020-23215 Filed 11-6-20; 8:45 am]
BILLING CODE 4310-05-P