[Federal Register Volume 65, Number 22 (Wednesday, February 2, 2000)]
[Rules and Regulations]
[Pages 4882-4886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2269]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-123-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendments.
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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: [email protected].
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
[[Page 4883]]
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 Sec. 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
[[Page 4884]]
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
Sec. 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
[[Page 4885]]
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.
Dated: December 23, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
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:
[[Page 4886]]
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:
Sec. 938.15 Approval of regulatory program amendments.
* * * * *
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Original amendment Date of final
submission date publication Citation/description
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* * * *
* * *
August 17, 1998............. February 2, 2000.... Letter from
Pennsylvania to OSM
dated August 17,
1998 (PA-837.80),
except a decision
on the required
amendment at 30 CFR
938.16(www) is
deferred.
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[FR Doc. 00-2269 Filed 2-1-00; 8:45 am]
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