Pennsylvania Regulatory Program

AGENCY:

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

ACTION:

Final rule; approval of amendments.

SUMMARY:

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

EFFECTIVE DATE:

February 2, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert J. Biggi, Director, Office of Surface Mining Reclamation and Enforcement, Harrisburg Field Office, Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036, Internet: bbiggi@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program.

II. Submission of the Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Pennsylvania Program

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

II. Submission of the Amendment

By letter dated September 14, 1995 (Administrative Record Number PA 837.01), Pennsylvania submitted an amendment to the Pennsylvania program. The amending language is contained in Pennsylvania House Bill 1075 and was enacted into Pennsylvania law as Act 1994-114. The amendments changed Pennsylvania's Coal Refuse Disposal Act (of September 24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980 (P.L. 807, No. 154)) to provide authorization for refuse disposal in areas previously affected by mining which contain pollutional discharges. We approved the amendments, with certain exceptions, on April 22, 1998 (63 FR 19802-19821). The April 22, 1998, notice contained seven required regulatory program amendments codified at 30 CFR 938.16 paragraphs (vvv) through (bbbb). On June 15, 1998 (63 FR 32615-32616), we corrected an inadvertent omission of a phrase at 30 CFR 938.16 paragraphs (vvv) through (bbbb), concerning the required Pennsylvania regulatory program amendments published in the April 22, 1998, Federal Register notice at pages 19820-19821.

By letter dated May 22, 1998 (Administrative Record Number PA 837.72) Pennsylvania responded to the required regulatory program amendments codified at 30 CFR 938.16 (vvv) through (bbbb) by submitting three items: (1) Written clarifications relating to each of the required regulatory program amendments; (2) The draft text of a notice to be published in the Pennsylvania Bulletin intended to address one of the required amendments; and (3) A legal opinion from the Pennsylvania Department of Environmental Protection (PADEP) legal counsel confirming the PADEP's authority to implement the necessary change.

By letter dated July 15, 1998 (Administrative Record Number PA 837.74) we responded to PADEP's May 22, 1998, letter and stated that the clarifications can only be incorporated into the approved Pennsylvania program through formal rulemaking.

By letter dated August 17, 1998 (Administrative Record Number PA 837.80), the PADEP requested that we process the PADEP's May 22, 1998, letter as a program amendment. We opened the 30-day public comment period on August 28, 1998 (63 FR 45973). The comment period closed on September 28, 1998. No one asked to speak at a public hearing, so none was held.

III. Director's Findings

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

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

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

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

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

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

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

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

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

In response to the required amendment at 30 CFR 938.16(xxx), the State provided the following clarification:

The Department clarifies that preexisting discharges which are encoun-tered must be treated to the effluent standards of 25 Pa. Code § 90.102. This clarification will be incorporated in regulations governing Section 6.2 of the CRDCA as they are developed.

We find that the State's clarification, that under Section 6.2 of the Coal Refuse Disposal Act, preexisting discharges that are encountered must be treated to the State effluent standards at Chapter 90, subchapter D at 90.102, is not inconsistent with SMCRA, and is consistent with the Federal regulations at 30 CFR 816/817.42. Therefore, we will remove the required program amendment at 30 CFR 938.16(xxx) when the clarification is incorporated in regulations and those regulations are approved by OSM.

B. The required amendment at 30 CFR 938.16(yyy) says that the State shall amend the Pennsylvania program to clarify that subsection 6.2(h) of the Coal Refuse Disposal Act pertains to preexisting discharges that are not encountered.

In the April 22, 1998 Federal Register notice, we said that subsection 6.2(h) could be misinterpreted. Specifically, the language in the first sentence of subsection 6.2(h) which states that “an operator required to treat preexisting discharges under subsection (g) will be allowed to discontinue treating * * *” is unclear. Subsection 6.2(g) pertains to both discharges that are encountered and those that are not encountered, and the treatment standards are different for each. We interpreted the language in the first sentence of section 6.2(h) to pertain only to subsection 6.2(g)(1)(ii), which governs discharges that are not encountered. Therefore, we approved section 6.2(h) to the extent that it provides that an operator may only discontinue treating preexisting discharges that are not encountered when the operator demonstrates that the “baseline” pollution load is no longer being exceeded. Preexisting discharges that are encountered must be treated to the State water quality standards at Chapter 90, subchapter D at 90.102 (63 FR 19810). We also established the required amendment at 30 CFR 938.16(yyy).

In response to the required amendment at 30 CFR 938.16(yyy), the State provided the following clarification:

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

We find that the State's clarification, that subsection 6.2(h) of the CRDCA pertains to preexisting discharges which are not encountered, would be consistent with our interpretation of that provision as stated in the April 22, 1998, Federal Register notice.

Therefore, we will remove the required program amendment at 30 CFR 938.16(yyy) when the clarification is incorporated in regulations governing Section 6.2 of the CRDCA and those regulations are approved by OSM.

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

The required amendment at 30 CFR 938.16(zzz) says that the State must amend the Pennsylvania program to be no less effective than 30 CFR 816.116(b)(5), by limiting the application of the revegetation standards under subsection 6.2(k) of the CRDCA to areas that were previously disturbed by mining and that were not reclaimed to the State reclamation standards.

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

In response to the required amendment at 30 CFR 938.16(zzz), the State provided the following clarification:

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

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

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

The required amendment at 30 CFR 938.16(aaaa) says that the State must amend the Pennsylvania program to clarify that under subsection 6.2(l) of the CRDCA, a special authorization for coal refuse disposal operations will not be granted when such an authorization would result in the site being reclaimed to lesser standards than could be achieved if the moneys paid into the Fund, as a result of a prior forfeiture on the area, were used to reclaim the site to the standards approved in the original permit under which the bond moneys were forfeit.

Section 6.2(l) of the CRDCA says that forfeited funds in the Surface Mining Conservation and Reclamation fund (Fund) must be applied as a credit to the bond required for a special authorization. In the April 22, 1998, Federal Register notice, we said that if any forfeited Fund moneys for a particular site are sufficient to perform all outstanding reclamation obligations for the site, then the site should not be reclaimed to lesser reclamation standards under a special authorization. Therefore, we approved section 6.2(l) to the extent that the State will not approve a special authorization when the authorization would result in the site being reclaimed to lesser standards than could be achieved if the forfeited bond monies were used to reclaim the site to the standards approved in the original permit under which the bond monies were forfeited (63 FR 19811). We also established the required amendment at 30 CFR 938.16(aaaa).

In response to the required amendment at 30 CFR 938.16(aaaa), the State provided the following clarification:

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

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

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

The required amendment at 30 CFR 938.16(bbbb) says that the State must amend the Pennsylvania program by adding implementing rules no less effective than 30 CFR 785.13, and no less stringent than SMCRA section 711 and which clarify that experimental practices are only approved as part of the normal permit approval process and only for departures from the environmental protection performance standards, and that each experimental practice receive the approval of the Secretary.

In the April 22, 1998, Federal Register, we approved section 6.3 of the CRDCA concerning experimental practices. However, section 6.3 is silent concerning the requirement to obtain approval from the Secretary for each experimental practice, and does not clarify that such practices are only approved as part of the normal permit approval process and only for departures from the environmental protection performance standards (63 FR 19812). Therefore, we established the required amendment at 30 CFR 938.16(bbbb).

In response to the required amendment at 30 CFR 938.16(bbbb), the State provided the following clarification:

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

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

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited comments on the proposed amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program. The U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded and stated that the amendment does not conflict with existing MSHA regulations.

The U.S. Department of Agriculture, Natural Resources Conservation Service, and the U.S. Fish and Wildlife Service responded and commented on the State's response to the required amendment codified at 30 CFR 938.16(www) concerning stream buffer zones. As discussed above in Finding 2, we are deferring our decision on this provision. Therefore, we are not responding to these comments at this time. We will fully address the comments from these agencies when we render our final decision on this provision.

Public and State Agency Comments

The following comments were received in response to the public comment period that closed on September 28, 1998. Two commenters provided general comments in support of the amendments. In addition, the commenters recommended that OSM reconsider its finding that the term “significant” in the Pennsylvania provision at section 6.1(h)(5) of Act 114 is less effective than the Federal requirements (see Finding 2, above). As discussed above in Finding 2, we are deferring our decision on this provision. Therefore, we are not responding to the comments concerning the required amendment codified at 30 CFR 938.16(www) at this time. We will fully address the comments from these commenters when we render our final decision on this provision.

A commenter stated that OSM's requirement that the State clarify that preexisting discharges must be treated to effluent standards seems to contradict the advantage to the environment of utilizing previously impacted areas for refuse disposal. The Director disagrees with the commenter's assertion, because the CRDA does not limit the term “preexisting discharges” to discharges caused by mining which occurred prior to SMCRA's effective date of August 3, 1977. Preexisting discharges which began after this date, and which are encountered by the present mining operation, must be treated to the effluent standards contained in Chapter 90, subchapter B at 90.102. Therefore, the required amendment at 30 CFR 938.16(xxx) will remain in place until this clarification is incorporated in regulations and those regulations are approved by OSM.

One commenter submitted general comments on the Pennsylvania program but did not address the specific issues in this rulemaking. Therefore, those comments will not be addressed in this notice.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The Director has determined that EPA's concurrence is not required for this amendment, since changes to the State's regulations that relate to water quality standards must still be made before the required amendments at 30 CFR 938.16(www), (xxx) and (yyy) are satisfied. When the State submits these regulatory changes to OSM as a program amendment, OSM will seek EPA concurrence.

On August 20, 1998, OSM solicited EPA's comments on the proposed amendment (Administrative Record No. PA-837.81). The EPA did not provide any comments.

V. Director's Decision

Based on the above findings, the Director is approving, except as noted below, the proposed amendment as submitted by Pennsylvania on August 17, 1998.

We are deferring our decision on the State's response to the required amendment codified at 30 CFR 938.16(www).

The Federal regulations at 30 CFR Part 938, codifying decisions concerning the Pennsylvania program, are being amended to implement this decision. This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

Executive Order 12988

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Unfunded Mandates

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

List of Subjects in 30 CFR Part 938

• Intergovernmental relations
• Surface mining
• Underground mining

For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below:

PART 938—PENNSYLVANIA

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

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

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