[Federal Register: October 2, 2003 (Volume 68, Number 191)]
[Rules and Regulations]
[Page 56765-56776]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc03-2]
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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: grieger@osmre.gov.
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:
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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).
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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