[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Rules and Regulations]
[Pages 39289-39299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16087]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-129-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving an amendment to the Pennsylvania regulatory
program (Pennsylvania program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended.
The amendment revises certain portions of 25 Pennsylvania Code Chapter
86, Surface and Underground Mining: General; Chapter 87, Surface Mining
of Coal; Chapter 88, Anthracite Coal; Chapter 89, Underground Mining of
Coal and Coal Preparation Facilities; and Chapter 90, Coal Refuse
Disposal. The amendments are intended to revise the Pennsylvania
program to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: June 26, 2000.
FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Office of Surface
Mining Reclamation and Enforcement, Harrisburg Field Office, Third
Floor, Suite 3C, Harrisburg Transportation Center (Amtrack), 415 Market
Street, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036.
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 30, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. You can find background on the
Pennsylvania program, including the Secretary's findings, the
disposition of comments, and the conditions of the approval in the July
30, 1982 Federal Register (47 FR 33079). Subsequent actions concerning
the regulatory program amendments are codified at 30 CFR 938.11, 938.15
and 938.16.
II. Submission of the Amendment
By letter dated November 30, 1999 (Administrative Record No. PA-
849.02), the Pennsylvania Department of Environmental Protection
(PADEP) submitted an amendment to its approved permanent regulatory
program pursuant to the Federal regulations at 30 CFR 732.17(b).
Pennsylvania did so as a result of its Regulatory Basics Initiative
(RBI) intended to revise regulations considered to be unclear,
unnecessary or more stringent than the corresponding Federal
regulation. The proposed rulemaking was published in the December 17,
1999 Federal Register (64 FR 70644). The public comment period closed
on January 18, 2000. No one requested to speak at a public hearing, so
no hearing was held.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
amendments to the Pennsylvania regulatory program. Revisions not
specifically discussed below concern paragraph notations to reflect
organizational changes resulting from this amendment.
PADEP is amending certain provisions of 25 Pennsylvania Code,
Chapters 86 through 90, as follows:
Chapter 86, Surface and Underground Coal Mining: General
Section 86.2 Scope
PADEP is correcting a grammatical error by changing the word
``specify'' to ``specifies'' in the opening paragraph. This is a non-
substantive change that does not require OSM approval.
Section 86.37 Criteria for Permit Approval or Denial
PADEP is modifying subdivision (a)(4) to assure activities proposed
under the application have been designed to prevent material damage to
the hydrologic balance outside the proposed permit area, while
eliminating the reference to damage to the hydrologic balance within
the permit area, by adding the word ``material'' before ``damage'' and
eliminating the words ``within and'' before the word ``outside''. The
Director finds that the changes described above render Sec. 86.37(a)(4)
substantively identical to and therefore no less effective than the
corresponding portion of the Federal provision at 30 CFR 773.15(c)(5).
PADEP is modifying subdivision (a)(6) regarding the effects of
proposed coal mining activities on properties listed on or eligible for
listing on the National Register of Historic Places by deleting the
phrase ``or eligible for inclusion on'' from the second sentence and
re-ordering the sentences. The first two sentences of subdivision (6)
now state that ``[t]he proposed activities will not adversely affect
any publicly owned parks or places included on the National Register of
Historic Places, except as provided for in Subchapter D. The effect of
the proposed coal mining activities on properties listed on or eligible
for listing on the National Register of Historic Places has been taken
into account by the Department''. The Director finds that the changes
described above render Sec. 86.37(a)(6) substantively identical to and
therefore no less effective than the Federal Regulations at 30 CFR
773.15(c)(3) and 761.11(c).
Section 86.40 Permit Terms
PADEP is modifying subsection (b) by adding criteria under which
the Department may grant an extension of time for commencement of
mining activities by adding the phrase ``or if there are conditions
beyond the control and without the fault or negligence of the
permittee.'' The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 773.19(e)(2)(ii).
Section 86.64 Right of Entry
PADEP is modifying this section by adding additional criteria for
documenting right of entry by adding the following sentence to
subsection (a): ``The description shall identify the documents by type
and date of execution, identify the specific lands to which the
document pertains and explain the legal rights claimed by the
applicant''. Existing subdivisions (b)(1) and (2) are eliminated and
new subdivisions (b)(1) through (3) are added specifying the documents
[[Page 39290]]
required. New subsection (c) states that ``[t]his section shall not be
construed to provide the Department with the authority to adjudicate
property rights disputes''. Existing subsection (c) is re-lettered as
(d), new subdivision (d)(3) is added to state that the requirements of
subsection (d) are in addition to the requirements required by
subsections (a) and (b), and existing subsections (d) and (e) are re-
lettered as (e) and (f), respectively. Subsection (f) is amended to
state that all information required in Sec. 86.64 shall be made part of
the permit application. The Director finds that the changes described
above are substantively identical to and therefore no less effective
than the Federal Regulations at 30 CFR 778.15(b) and (c), except for
subdivision (d)(3), which has no Federal counterpart. However,
subdivision (d)(3) is not inconsistent with 30 CFR 778.15, since it
provides that the right of entry requirements of subsection (d), which
also have no Federal counterparts, are in addition to, (and therefore
do not supersede), the requirements contained in subsections (a) and
(b). Also, the Director finds that new subdivisions (b)(2) and (b)(3)
satisfy the required amendment at 30 CFR 938.16(ll), which is hereby
removed.
Section 86.70 Proof of Publication
PADEP is modifying this section to require that a permit
application to the Department shall contain an intent to publish, and a
copy of the language to appear in the public notice as well as a copy
of the advertisements or the original notarized proof of publication.
The Director finds that the changes described above are substantively
identical to and therefore no less effective than the Federal
Regulations at 30 CFR 778.13(a) and 778.21, except that Sec. 86.70 also
requires a statement of ``intent to publish,'' which is not required in
the Federal regulations. However, since this requirement is in addition
to the Federal requirements, it is not inconsistent with the Federal
regulations.
Section 86.132 Definitions
PADEP is modifying the definition of ``substantially disturb,''
with respect to coal exploration, by adding the word ``significant''
before ``impact,'' in order to limit its application to coal
exploration activities that have a significant impact on land, air or
water resources. The relevant portion of the definition now reads ``For
purposes of coal exploration, including, but not limited to, to have a
significant impact upon land, air or water resources * * *'' (Emphasis
added)
The Director finds that the change described above brings the
State's definition, which OSM previously found to be substantively
identical to its Federal counterpart at 30 CFR 701.5 (58 FR 18149,
18151, April 8, 1993), into conformity with the precise language of the
Federal definition.
Section 86.133 General Requirements for Coal Exploration
PADEP is modifying subsection (e) to include a metric tonnage
equivalent to the 250 ton limit for coal exploration that may be
allowed without a permit, to change the words ``less than'' to ``or
less,'' and to change the words ``or more'' to ``more than.'' The
effect of the changes is to allow the department to waive the
permitting requirement, to enable coal properties testing and analysis,
where 250 tons (226 metric tons) of coal or less are removed, but to
require a permit for the removal of more than 250 tons (226 metric
tons) of coal. The Director finds that the changes do not render
Sec. 86.133(e) less effective than the Federal Regulations at 30 CFR
772.11 and 772.12. However, the required amendment at 30 CFR
938.16(ccc) remains unsatisfied.
Section 86.134 Coal Exploration Performance and Design Standards
PADEP is modifying this section by eliminating existing
subdivisions (2) and (3) that required the person conducting coal
exploration to measure environmental characteristics during the
operations and to limit vehicular traffic, and adding new subdivision
(2) that states ``Roads used for coal exploration shall comply with the
following: * * *'' Existing subdivisions (4) and (5) are re-numbered as
(3) and (4), existing subdivision (6), which requires revegetation of
areas disturbed by coal exploration to be performed by the person who
conducts the exploration, or by his agent, is eliminated and new
subdivision (5) is added as follows: ``All areas disturbed by coal
exploration activities shall be vegetated in a manner that encourages
prompt revegetation and recovery of a diverse, effective and permanent
vegetative cover''. Additionally, existing subdivisions (7) through
(12) are re-numbered as (6) through (11) respectively. The Director
finds that the changes described above are substantively identical to
and therefore no less effective than their Federal regulatory
counterparts at 30 CFR 815.15(b) and (e).
Section 86.174 Standards for Release of Bonds
PADEP is modifying subdivision (b)(1) to clarify the standards for
Stage 2 bond release by requiring that topsoil and revegetation be
successfully completed in accordance with the reclamation plan. The
phrase ``and the standards for the success of revegetation are met'' is
eliminated. The Director finds that the change described above renders
subdivision (b)(1) substantively identical to and therefore no less
effective than the corresponding Federal regulatory language contained
in the Federal Regulations at 30 CFR 800.40(c)(2).
Chapter 87, Surface Mining of Coal
Section 87.1 Definitions
PADEP is adding, at new subsection (x), a definition of ``unmanaged
natural habitat.'' The term is defined as idle land which does not
require a specific management plan after the reclamation and
revegetation have been accomplished. Although the Federal Regulations
do not have a direct counterpart, the Director finds the State's
definition to be consistent with the definition of ``undeveloped land
or no current use or land management'' at 30 CFR 701.5.
Section 87.77 Protection of Public Parks and Historic Places
PADEP is modifying subsection (a) by specifying that the permit
application requirements to include protective measures apply to
publicly owned parks or historic places that are listed on the National
Register of Historic Places, and that may be adversely affected by the
proposed operations. The Director finds that the changes described
render the introductory language of subsection (a) substantively
identical to and therefore no less effective than the corresponding
introductory language contained in 30 CFR 780.31(a).
Section 87.93 Casing and Sealing of Drilled Holes
PADEP is modifying subdivision (a)(2) by requiring that exploration
holes, other drilled or boreholes, wells or other exposed underground
openings be cased, sealed or otherwise managed in order to
``minimize,'' rather than to ``prevent to the maximum extent
possible,'' damage to the prevailing hydrologic balance. The Director
finds that this change renders subdivision (a)(2) substantively
identical to and therefore no less effective than corresponding
language contained in the Federal Regulations at 30 CFR 816.13.
PADEP is modifying subdivision (e)(2)(iii) pertaining to when the
Department may approve lesser distances for the barrier of undisturbed
earth, by deleting the existing language
[[Page 39291]]
and adding the following: ``The measures included in the permit to
minimize damage, destruction or disruption of services pursuant to
Sec. 87.173(b) are implemented.'' At subsection (e), the minimum
required radius for the solid barrier of undisturbed earth that must
surround oil and gas wells is now also being expressed in meters, in
addition to feet. The Director finds that, while subdivision
(e)(2)(iii) has no direct Federal counterpart, the proposed amendments
thereto do not render it inconsistent with the Federal Regulations at
30 CFR 816.13.
Section 87.97 Topsoil: Removal
PADEP is modifying subsection (c) by including a metric conversion
figure, in centimeters, which corresponds to the 12 inch topsoil
thickness threshold, which if not in existence triggers the requirement
to remove, segregate, conserve and replace a twelve inch layer that
includes topsoil and other unconsolidated materials as the final
surface soil layer. A centimeter measurement is also added for the 12-
inch thickness threshold for topsoil and unconsolidated material
combined, which if not in existence triggers the requirement to remove,
segregate, conserve and replace the topsoil and all unconsolidated
materials as the final surface soil layer. These changes are
nonsubstantive in nature and do not require OSM approval.
Subsection (f), which currently pertains to ``subsoil''
substitution requirements, is amended to pertain to ``topsoil''
substitution requirements. The Director finds that this change renders
section 86.97 substantively identical to and therefore no less
effective than the counterpart language contained in the Federal
Regulations at 30 CFR 816.22(b).
Section 87.101 Hydrologic Balance: General Requirements
PADEP is modifying subsection (a), which currently requires that
surface activities be planned and conducted to ``prevent to the maximum
extent possible'' disturbances to the prevailing hydrologic balance in
the permit and adjacent area. As modified, subsection (a) will require
that surface activities be planned and conducted to ``minimize'' such
disturbances. This subsection is further modified by the addition of a
requirement that surface mining activities shall be planned and
conducted to prevent material damage to the hydrologic balance outside
the permit area. Finally, the PADEP added a provision allowing it to
require additional preventative, remedial, or monitoring measures to
assure that material damage to the hydrologic balance outside the
permit area is prevented. The Director finds that the changes described
above render subsection (a) substantively identical to and therefore no
less effective than the corresponding language contained in the Federal
Regulations at 30 CFR 816.41(a).
Section 87.106 Hydrologic Balance: Sediment Control Measures
PADEP is modifying subdivision (1) to require prevention of
contributions of sediment to streamflow or runoff to the ``extent
possible,'' rather than to the ``maximum extent possible,'' by deleting
the word ``maximum.'' The Director finds that this change renders
subdivision (1) substantively identical to and therefore no less
effective than the corresponding language contained in the Federal
Regulations at 30 CFR 816.45(a)(1).
PADEP is also modifying subdivision (3) by changing the language of
the requirement from ``Prevent erosion to the maximum extent possible''
to ``Minimize erosion to the extent possible.'' The Director finds that
this change renders subdivision (3) substantively identical to and
therefore no less effective than the Federal Regulations at 30 CFR
816.45(a)(3).
Section 87.126 Use of Explosives: Public Notice of Blasting Schedule
PADEP is modifying subsection (a) by allowing publication of the
blasting schedule in a newspaper of general circulation up to 30 days
before beginning a blasting program instead of the existing 20 day
period. The Director finds that the change renders subsection (a)
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.64(b)(1).
Section 87.127 Use of Explosives: Surface Blasting Requirements
PADEP is modifying subdivision (f)(5) by deleting the prohibition
against casting flyrock beyond the ``line of property owned or leased
by the permittee,'' and by making the permit boundary the limit beyond
which flyrock may not be cast. The Director finds that the change
renders subdivision (f)(5) substantively identical to and therefore no
less effective than the Federal Regulations at 30 CFR 816.67(c)(3).
Section 87.138 Protection of Fish, Wildlife and Related Environmental
Values
PADEP is modifying this section to require a person conducting
surface mining activities to, to the extent possible using the best
technology currently available, minimize disturbances and adverse
impacts on fish, wildlife and related environmental values, locate and
operate haul and access roads to avoid or minimize impacts to fish and
wildlife or other protected species, and to avoid disturbance to,
enhance where practicable, or restore, habitats of unusually high value
for fish and wildlife. Prior to these proposed amendments, this section
required that activities use the best technology currently available to
prevent such disturbances and adverse impacts. The Director finds that
the changes described above render section 87.138 substantively
identical to and therefore no less effective than the Federal
Regulations at 30 CFR 816.97(a) and (e)(2), and to the portion of 30
CFR 816.97(f) that pertains to habitats of unusually high value. PADEP
is also modifying subsection (b) by changing the name of the Fish
Commission to the Fish and Boat Commission. As modified, subsection (b)
remains substantively identical to and therefore no less effective than
the corresponding language contained in the Federal regulations at 30
CFR 816.97(b).
Section 87.144 Backfilling and Grading: Final Slopes
PADEP is modifying subsection (c) by deleting subdivisions (1)
through (4) enumerating requirements for terraces. The Director finds
that the deletions of these subdivisions, which have no Federal
counterparts, do not render subsection (c) less effective than the
Federal regulations at 30 CFR 816.102(g)(1). PADEP is also modifying
subsection (f) by eliminating specific grading, preparation of
overburden, and placement of topsoil requirements pertaining to
placement in a direction other than parallel when parallel placement
creates hazards to equipment operators. The Director finds that the
deletion of these requirements, which have no direct Federal
counterparts, does not render the state regulations less effective than
the Federal Regulations at 30 CFR 816.102(j).
Section 87.146 Regrading or Stabilizing Rills and Gullies
PADEP is eliminating the existing subsection and substituting the
following new subsections:
[[Page 39292]]
(a) Exposed surface areas shall be protected and stabilized to
effectively control erosion and air pollution attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded
and topsoiled and which do one of the following shall be filled,
regraded and otherwise stabilized:
(1) Disrupt the approved postmining land use or the reestablishment
of the vegetative cover.
(2) Cause or contribute to a violation of water quality standards
for receiving streams.
(c) For the areas listed in subsection (b), the topsoil shall be
replaced and the areas shall be reseeded or replanted.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 816.95(a) and (b).
Section 87.159 Postmining Land Use
PADEP is modifying subsection (b) by eliminating subdivisions (3)
and (4) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining. These deleted
subdivisions have no Federal counterparts.
PADEP is also adding new subdivision (c)(3) as follows: ``The
proposed postmining land use is reasonably likely to be achieved which
may be demonstrated by one or more of the following or other similar
criteria * * *.'' Criteria currently identified in subdivisions (c)(3),
(4), and (5) are re-lettered as (i), (ii) and (iii) respectively, under
new subdivision (c)(3).
PADEP is also eliminating subdivision (c)(6) pertaining to
certification of plans for postmining land use by a registered
professional engineer. This deleted subdivision has no Federal
counterparts pertaining to postmining land uses in general. Existing
subdivisions (c)(7), (8) and (9) are re-numbered as (c)(4), (5) and
(6), respectively. The Director finds that the changes described above
do not render section 87.159 less effective than the Federal
Regulations at 30 CFR 816.133(b) and (c)(1).
Section 87.160 Haul Roads and Access Roads
PADEP is modifying subsection (a) by eliminating the phrase
``prevent, to the maximum extent possible'', and substituting the words
``control or prevent'' prior to ``erosion and contributions of sediment
to streams or runoff * * *''. The Director finds that the changes
described above render subsection (a) substantively identical to and
therefore no less effective than the corresponding language contained
in the Federal Regulations at 30 CFR 816.150(b)(1).
Section 87.166 Haul Roads and Access Roads: Restoration
PADEP is modifying this section by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur ``as soon as practicable.''
PADEP is also modifying subdivision (4) by eliminating the
requirement that roadbeds be plowed. The subdivision now reads
``Roadbeds shall be ripped or scarified.'' The Director finds that the
changes described render section 87.166 substantively identical to and
therefore no less effective than the corresponding language contained
in the Federal Regulations at 30 CFR 816.150(f) and (f)(6).
Section 87.173 Support Facilities and Utility Installations
PADEP is modifying subsection (a) by eliminating criteria from the
opening paragraph and deleting subdivisions (1) and (2). The deleted
criteria have no Federal regulatory counterparts. PADEP is also adding
new subdivisions (1) and (2), which require that support facilities be
located, maintained and used in a manner that:
(1) Prevents or controls erosion and siltation, water pollution,
and damage to public or private property.
(2) To the extent possible using the best technology currently
available:
(i) Minimizes damage to fish, wildlife and related environmental
values.
(ii) Minimizes additional contributions of suspended solids to
streamflow or runoff outside the permit area. These contributions may
not be in excess of limitations of State or Federal law.
The Director finds that the changes described above render section
87.173 substantively identical to and therefore no less effective than
the Federal Regulations at 30 CFR 816.181(b).
Section 87.174 Steep Slope Operations
PADEP is eliminating subsection (g), which prohibits construction
of unlined or unprotected drainage channels on backfilled areas unless
approved by the PADEP as stable and not subject to erosion. This
subsection has no direct Federal counterpart. The Director finds that
the deletion of subsection (g) does not render section 87.174 less
effective than the Federal Regulations at 30 CFR 816.107.
Section 87.176 Auger Mining
PADEP is deleting subsection (d), which prohibits auger mining to
the rise of the coal unless it is demonstrated to the PADEP's
satisfaction that drainage from the auger hole will not pose a
pollution threat to surface waters and will comply with applicable
effluent standards. Subsection (d) has no direct Federal counterpart.
Existing subsection (e) is re-lettered as (d), and contains non-
substantive changes in wording that are intended to improve the clarity
of the subsection. The Director finds that the changes described above
do not render section 87.176 less effective than the Federal
Regulations at 30 CFR 819.11.
Section 87.209 Criteria and Schedule for Release of Bonds on Pollution
Abatement Areas of Remining Operations
PADEP is modifying subsection (a), which pertains to the first
phase of release of the bond for the pollution abatement area, by
raising the amount of the bond that may be released from 50% to 60%,
where the operator has not caused degradation of the baseline pollution
load at any time during a period of six months prior to the bond
release request, and until bond release is approved as shown by all
ground and surface water monitoring. PADEP is modifying subsection (b),
which pertains to the second phase of release of the bond for the
pollution abatement area, by deleting the phrase that allows the
additional release of up to 35% of the amount of the bond and
substituting the phrase that additional funds can be released, but that
the Department will retain an amount sufficient to cover the cost to
the Department of reestablishing vegetation if completed by a third
party.
Next, PADEP is also modifying subdivision (b)(3)(ii)(A)(I) so that
an operator can receive approval for the second phase of bond release
where it demonstrates that it has not caused degradation of the
baseline pollution load for a period of twelve months prior to the
application for bond release and until bond release is approved.
Finally, PADEP is modifying subdivision (c)(4) pertaining to the
release of the remaining portion of the bond by deleting the
requirement to measure the applicable liability period from the date of
release of the second phase of the bond. The Director finds that the
changes described above do not render section 87.209 less effective
than the general bond release criteria contained in the Federal
regulations at 30 CFR 800.40(c).
[[Page 39293]]
Chapter 88, Anthracite Coal
Section 88.1 Definitions
PADEP is adding, at new subsection (x), a definition of ``unmanaged
natural habitat.'' The term is defined as idle land which does not
require a specific management plan after the reclamation and
revegetation have been accomplished. Although the Federal Regulations
do not have a direct counterpart, the Director finds the State's
definition to be consistent with the definition of ``undeveloped land
or no current use or land management'' at 30 CFR 701.5.
Section 88.56 Protection of Public Parks and Historic Places
PADEP is modifying subsection (a) by specifying that the permit
application requirements to include protective measures apply to
publicly owned parks or historic places that are listed on the National
Register of Historic Places, and that may be adversely affected by the
proposed operations. The Director finds that the changes described
above render the introductory language of subsection (a) substantively
identical to and therefore no less effective than the corresponding
introductory language contained in 30 CFR 780.31(a).
Section 88.83 Sealing of Drilled Holes: General Requirements
PADEP is modifying subdivision (a)(2) by requiring that exploration
holes, other drilled or boreholes, wells or other exposed underground
openings be sealed or otherwise managed in order to ``minimize,''
rather than to ``prevent to the maximum extent possible,'' damage to
the prevailing hydrologic balance. PADEP is modifying subdivision
(e)(2)(iii) pertaining to when the Department may approve lesser
distances for the barrier of undisturbed earth, by deleting the
existing language and adding the following: ``The measures included in
the permit to minimize damage, destruction or disruption of services
are implemented.'' In subsection (e), the minimum required radius for
the solid barrier of undisturbed earth that must surround oil and gas
wells is now also being expressed in meters, in addition to feet. In
accordance with section 529(a) of SMCRA and the Federal regulations at
30 CFR 820.11, the Director is approving these amendments to the
special permanent program performance standards for anthracite mines in
Pennsylvania.
Section 88.91 Hydrologic Balance: General Requirements
PADEP is modifying subsection (a), which currently requires that
surface activities be planned and conducted to ``prevent to the maximum
extent possible'' disturbances to the prevailing hydrologic balance in
the permit and adjacent area. As modified, subsection (a) will require
that surface activities be planned and conducted to ``minimize'' such
disturbances. This subsection is further modified by the addition of a
requirement that surface mining activities shall be planned and
conducted to prevent material damage to the hydrologic balance outside
the permit area. Finally, the PADEP added a provision allowing it to
require additional preventative, remedial, or monitoring measures to
assure that material damage to the hydrologic balance outside the
permit area is prevented. In accordance with section 529(a) of SMCRA
and the Federal regulations at 30 CFR 820.11, the Director is approving
these amendments to the special permanent program performance standards
for anthracite mines in Pennsylvania.
Section 88.96 Hydrologic Balance: Sediment Control Measures
PADEP is modifying subdivision (l) to require prevention of
contributions of sediment to streamflow or runoff to the ``extent
possible,'' rather than to the ``maximum extent possible,'' by deleting
the word ``maximum.'' PADEP is also modifying subdivision (3) by
changing the language of the requirement from ``Prevent erosion to the
maximum extent possible'' to ``Minimize erosion to the extent
possible.'' In accordance with section 529(a) of SMCRA and the Federal
regulations at 30 CFR 820.11, the Director is approving these
amendments to the special permanent program performance standards for
anthracite mines in Pennsylvania.
Section 88.118 Backfilling and Grading: Final Slopes
PADEP is modifying subsection (c) by deleting subdivisions (1)
through (4) enumerating requirements for terraces. PADEP is also
modifying subsection (f) by eliminating specific grading, preparation
of overburden, and placement of topsoil requirements pertaining to
placement in a direction other than parallel when parallel placement
creates hazards to equipment operators. In accordance with section
529(a) of SMCRA and the Federal regulations at 30 CFR 820.11, the
Director is approving these amendments to the special permanent program
performance standards for anthracite mines in Pennsylvania.
Section 88.133 Postmining Land Use
PADEP is modifying subsection (a) by deleting the reference to
Subchapter E (relating to coal exploration) and adding the reference to
Subchapter F (relating to bonding and insurance requirements), thereby
clarifying that affected areas be restored to conditions capable of
supporting the uses they were capable of supporting prior to mining, or
that they be restored to higher or better uses, prior to bond release.
PADEP is also modifying subsection (b) by eliminating subdivisions (3)
and (4) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining. PADEP is also adding
new subdivision (3) as follows: ``The proposed postmining land use is
reasonably likely to be achieved which may be demonstrated by one or
more of the following or other similar criteria * * *.'' Criteria
currently identified in subdivisions (3) and (4) are re-lettered as (i)
and (ii), respectively, under new subdivision (3). PADEP is also
eliminating subdivision (5) pertaining to certification of plans for
postmining land use by a registered professional engineer. Existing
subdivisions (6), (7) and (8) are re-numbered as (4), (5) and (6),
respectively. In accordance with section 529(a) of SMCRA and the
Federal regulations at 30 CFR 820.11, the Director is approving these
amendments to the special permanent program performance standards for
anthracite mines in Pennsylvania.
Section 88.138 Haul Roads and Access Roads: General
PADEP is modifying subsection (a) by eliminating the phrase
``prevent, to the maximum extent possible,'' and substituting the words
``control or prevent'' prior to ``erosion and contributions of sediment
to streams or runoff * * *''. In accordance with section 529(a) of
SMCRA and the Federal regulations at 30 CFR 820.11, the Director is
approving this amendment to the special permanent program performance
standards for anthracite mines in Pennsylvania.
Section 88.144 Haul Roads and Access Roads: Restoration
PADEP is modifying this section by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur
[[Page 39294]]
``as soon as practicable.'' In accordance with section 529(a) of SMCRA
and the Federal regulations at 30 CFR 820.11, the Director is approving
this amendment to the special permanent program performance standards
for anthracite mines in Pennsylvania.
Section 88.191 Hydrologic Balance: Sediment Control Measures
PADEP is modifying subdivision (l) to require prevention of
contributions of sediment to streamflow or runoff to the ``extent
possible,'' rather than to the ``maximum extent possible,'' by deleting
the word ``maximum.'' PADEP is also modifying subdivision (3) by
changing the language of the requirement from ``Prevent erosion to the
maximum extent possible'' to ``Minimize erosion to the extent
possible.'' In accordance with section 529(a) of SMCRA and the Federal
regulations at 30 CFR 820.11, the Director is approving these
amendments to the special permanent program performance standards for
anthracite mines in Pennsylvania.
Section 88.221 Postmining Land Use
PADEP is modifying subsection (b) by eliminating subdivisions (3)
and (4) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining. PADEP is also adding
new subdivision (c)(3) as follows: ``The proposed postmining land use
is reasonably likely to be achieved which may be demonstrated by one or
more of the following or other similar criteria.'' Criteria currently
identified in subdivisions (3) and (4) are re-lettered as (i) and (ii),
respectively, under new subdivision (3).
PADEP is also eliminating subdivision (5) pertaining to
certification of plans for postmining land use by a registered
professional engineer. Existing subdivisions (6), (7) and (8) are re-
numbered as (4), (5) and (6), respectively. In accordance with section
529(a) of SMCRA and the Federal regulations at 30 CFR 820.11, the
Director is approving these amendments to the special permanent program
performance standards for anthracite mines in Pennsylvania.
Section 88.231 Haul Roads and Access Roads: General
PADEP is modifying subsection (a) by eliminating the phrase
``prevent, to the maximum extent possible,'' and substituting the words
``control or prevent'' prior to ``erosion and contributions of sediment
to streams or runoff * * *''. In accordance with section 529(a) of
SMCRA and the Federal regulations at 30 CFR 820.11, the Director is
approving this amendment to the special permanent program performance
standards for anthracite mines in Pennsylvania.
Section 88.237 Haul Roads and Access Roads: Restoration
PADEP is modifying this section by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur ``as soon as practicable.'' In accordance
with section 529(a) of SMCRA and the Federal regulations at 30 CFR
820.11, the Director is approving this amendment to the special
permanent program performance standards for anthracite mines in
Pennsylvania.
Section 88.283 Sealing of Drilled Holes: General Requirements
PADEP is modifying subdivision (e)(2)(iii) pertaining to when the
Department may approve lesser distances for the barrier of undisturbed
earth, by deleting the existing language and adding the following:
``The measures included in the permit to minimize damage, destruction
or disruption of services are implemented.'' In subsection (e), the
minimum required radius for the solid barrier of undisturbed earth that
must surround oil and gas wells is now also being expressed in meters,
in addition to feet. In accordance with section 529(a) of SMCRA and the
Federal regulations at 30 CFR 820.11, the Director is approving these
amendments to the special permanent program performance standards for
anthracite mines in Pennsylvania.
Section 88.291 Hydrologic Balance: General Requirements
PADEP is modifying subsection (a), which currently requires that
surface activities be planned and conducted to ``prevent to the maximum
extent possible'' disturbances to the prevailing hydrologic balance in
the permit and adjacent area. As modified, subsection (a) will require
that surface activities be planned and conducted to ``minimize'' such
disturbances. This subsection is further modified by the addition of a
requirement that surface mining activities shall be planned and
conducted to prevent material damage to the hydrologic balance outside
the permit area. Finally, the PADEP added a provision allowing it to
require additional preventative, remedial, or monitoring measures to
assure that material damage to the hydrologic balance outside the
permit area is prevented. In accordance with section 529(a) of SMCRA
and the Federal regulations at 30 CFR 820.11, the Director is approving
these amendments to the special permanent program performance standards
for anthracite mines in Pennsylvania.
Section 88.296 Hydrologic Balance: Sediment Control Measures
PADEP is modifying subdivision (l) to require prevention of
contributions of sediment to streamflow or runoff to the ``extent
possible,'' rather than to the ``maximum extent possible,'' by deleting
the word ``maximum.'' In accordance with section 529(a) of SMCRA and
the Federal regulations at 30 CFR 820.11, the Director is approving
this amendment to the special permanent program performance standards
for anthracite mines in Pennsylvania.
Section 88.334 Postdisposal Land Use
PADEP is modifying subsection (a) by changing the reference from
``this section (bonds)'' to ``Chapter 86, Subchapter F, (relating to
bonding and insurance requirements).''
PADEP is modifying subsection (b) by eliminating subdivisions (3)
and (4) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining.
PADEP is also modifying subdivision (c)(1) by deleting the
reference to ``surface mining'' and substituting ``coal refuse
disposal.''
PADEP is also adding new subdivision (c)(3) as follows: ``The
proposed postmining land use is reasonably likely to be achieved which
may be demonstrated by one or more of the following or other similar
criteria.'' Criteria currently identified in subdivisions (3) and (4)
are re-lettered as (i) and (ii) respectively, under new subdivision
(3), and (i) is further changed by deleting the reference to ``surface
mining'' and substituting ``coal refuse disposal.''
PADEP is also eliminating subdivision (5) pertaining to
certification of plans for postdisposal land use by a registered
professional engineer. Existing subdivisions (6), (7), and (8) are re-
numbered as (4), (5) and (6), respectively. In accordance with section
529(a) of SMCRA and the Federal regulations at 30 CFR 820.11, the
Director is approving these amendments to the special permanent program
performance standards for anthracite mines in Pennsylvania.
[[Page 39295]]
Section 88.335 Haul Roads and Access Roads: General
PADEP is modifying subsection (a) by eliminating the phrase
``prevent, to the maximum extent possible,'' and substituting the words
``control or prevent'' prior to ``erosion and contributions of sediment
to streams or runoff. * * *'' In accordance with section 529(a) of
SMCRA and the Federal regulations at 30 CFR 820.11, the Director is
approving this amendment to the special permanent program performance
standards for anthracite mines in Pennsylvania.
Section 88.341 Haul Roads and Access Roads: Restoration
PADEP is modifying this section by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur ``as soon as practicable.'' In accordance
with section 529(a) of SMCRA and the Federal regulations at 30 CFR
820.11, the Director is approving this amendment to the special
permanent program performance standards for anthracite mines in
Pennsylvania.
Section 88.492 Minimum Requirements For Reclamation and Operation Plan
PADEP is modifying subdivision (f)(1) by specifying that the permit
application requirements to include protective measures apply to
publicly owned parks or historic places that are listed on the National
Register of Historic Places, and that may be adversely affected by the
proposed operations. The Director finds that the changes described
above render the introductory language of subsection (a) substantively
identical to and therefore no less effective than the corresponding
introductory language contained in 30 CFR 780.31(a).
Section 88.509 Criteria and Schedule for Release of Bonds on Pollution
Abatement Areas of Remining Operations
PADEP is modifying subsection (a), which pertains to the first
phase of release of the bond for the pollution abatement area, by
raising the amount of the bond that may be released from 50% to 60%,
where the operator has not caused degradation of the baseline pollution
load at any time during a period of six months prior to the bond
release request, and until bond release is approved as shown by all
ground and surface water monitoring. PADEP is modifying subsection (b),
which pertains to the second phase of release of the bond for the
pollution abatement area, by deleting the phrase that allows the
additional release of up to 35% of the amount of the bond and
substituting the phrase that additional funds can be released, but that
the Department will retain an amount sufficient to cover the cost to
the Department of reestablishing vegetation if completed by a third
party.
Next, PADEP is also modifying subdivision (b)(3)(ii)(A)(I) so that
an operator can receive approval for the second phase of bond release
where it demonstrates that it has not caused degradation of the
baseline pollution load for a period of twelve months prior to the
application for bond release and until bond release is approved.
Finally, PADEP is modifying subdivision (c)(4) pertaining to the
release of the remaining portion of the bond by deleting the
requirement to measure the applicable liability period from the date of
release of the second phase of the bond. The Director finds that the
changes described above do not render section 88.509 less effective
than the general bond release criteria contained in the Federal
regulations at 30 CFR 800.40(c).
Chapter 89, Underground Mining of Coal and Coal Preparation Facilities
Section 89.38 Archaeological and Historical Resources and Public Parks
PADEP is changing the title of this section to Archaeological and
historical resources, public parks and publicly owned parks.
PADEP is modifying subsection (b) by specifying that the permit
application requirements to include protective measures apply to
publicly owned parks or historic places that are listed on the National
Register of Historic Places, and that may be adversely affected by the
proposed operations. The Director finds that the changes described
above render the introductory language of subsection (b) substantively
identical to and therefore no less effective than the corresponding
introductory language contained in 30 CFR 784.17(a).
Section 89.65 Protection of Fish, Wildlife and Related Environmental
Values
PADEP is modifying this section to require a person conducting
surface mining activities to, to the extent possible using the best
technology currently available, minimize disturbances and adverse
impacts on fish, wildlife and related environmental values, locate and
operate haul and access roads to avoid or minimize impacts to fish and
wildlife or other protected species, and to avoid disturbance to,
enhance where practicable, or restore, habitats of unusually high value
for fish and wildlife. Prior to these proposed amendments, this section
required that activities use the best technology currently available to
prevent such disturbances and adverse impacts. The Director finds that
the changes described above render section 89.65 substantively
identical to and therefore no less effective than the Federal
Regulations at 30 CFR 817.97(a) and (e)(2), and at the portion of 30
CFR 817.97(f) that pertains to habitats of unusually high value.
Section 89.67 Support Facilities
PADEP is modifying subsection (a) by eliminating criteria from the
opening paragraph and deleting subdivisions (1) and (2). The deleted
criteria have no Federal regulatory counterparts. PADEP is also adding
new subdivisions (1) and (2), which require that support facilities be
located, maintained and used in a manner that:
(1) Prevents or controls erosion and siltation, water pollution,
and damage to public or private property.
(2) To the extent possible using the best technology currently
available:
(i) Minimizes damage to fish, wildlife and related environmental
values.
(ii) Minimizes additional contributions of suspended solids to
streamflow or runoff outside the permit area. These contributions may
not be in excess of limitations of State or Federal law.
The Director finds that the changes described above render section
89.67 substantively identical to and therefore no less effective than
the Federal Regulations at 30 CFR 817.181(b).
Section 89.82 Protection of Fish, Wildlife and Related Environmental
Values
PADEP is modifying this section to require a person conducting
surface mining activities to, to the extent possible using the best
technology currently available, minimize disturbances and adverse
impacts on fish, wildlife and related environmental values. Prior to
this proposed amendment, this section required that activities use the
best technology currently available to prevent such disturbances and
adverse impacts. The Director finds that the changes described above
render section 89.82 substantively identical to and therefore no less
effective than the Federal Regulations at 30 CFR 817.97(a).
[[Page 39296]]
PADEP is also modifying subsections (b) and (e) by changing the
name of the Fish Commission to the Fish and Boat Commission. As
modified, subsections (b) and (e) remain substantively identical to and
therefore no less effective than the corresponding language contained
in the Federal regulations at 30 CFR 817.97(b).
Section 89.87 Regrading or Stabilizing Rills and Gullies
PADEP is eliminating the existing subsections and substituting the
following new subsections:
(a) Exposed surface areas shall be protected and stabilized to
effectively control erosion and air pollution attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded
and topsoiled and which do one of the following shall be filled,
regraded and otherwise stabilized:
(1) Disrupt the approved postmining land use or the reestablishment
of the vegetative cover.
(2) Cause or contribute to a violation of water quality standards
for receiving streams.
(c) For the areas listed in subsection (b), the topsoil shall be
replaced and the areas shall be reseeded or replanted.
The Director finds that the changes described above are
substantively identical to and therefore no less effective than the
Federal Regulations at 30 CFR 817.95.
Section 89.88 Postmining Land Use
PADEP is modifying subsection (b) by eliminating subdivisions (2)
and (3) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining. These deleted
subdivisions have no Federal counterparts.
PADEP is also adding new subdivision (c)(2) as follows: ``The
proposed postmining land use is reasonably likely to be achieved which
may be demonstrated by one or more of the following or other similar
criteria.'' The criteria, which are part of the existing program, are
now included in subdivision (c)(2), following the above-quoted
introductory sentence.
PADEP is also eliminating subdivision (c)(3) pertaining to
certification of plans for postmining land use by a registered
professional engineer. This deleted subdivision has no Federal
counterpart. Existing subdivisions (c)(4), (5), (6) and (7) are re-
numbered as (c)(3), (4), (5) and (6), respectively.
The Director finds that the changes described above do not render
section 89.88 less effective than the Federal Regulations at 30 CFR
817.133(b) and (c)(1).
Section 89.90 Restoration of Roads
PADEP is modifying subsection (a) by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur ``as soon as practicable.''
PADEP is also modifying subdivision (a)(4) by eliminating the
requirement that roadbeds be plowed. The subdivision now reads
``Roadbeds shall be ripped or scarified.'' The Director finds that the
changes described render section 89.90 substantively identical to and
therefore no less effective than the corresponding language contained
in the Federal Regulations at 30 CFR 817.150(f) and (f)(6).
Chapter 90, Coal Refuse Disposal
Section 90.1 Definitions
PADEP is adding, at new subsection (x), a definition of ``unmanaged
natural habitat.'' The term is defined as idle land which does not
require a specific management plan after the reclamation and
revegetation have been accomplished. Although the Federal Regulations
do not have a direct counterpart, the Director finds the State's
definition to be consistent with the definition of ``undeveloped land
or no current use or land management'' at 30 CFR 701.5.
Section 90.40 Protection of Public Parks and Historic Places
PADEP is modifying subsection (a) by specifying that the permit
application requirements to include protective measures apply to
publicly owned parks or historic places that are listed on the National
Register of Historic Places, and that may be adversely affected by the
proposed operations. The Director finds that the changes described
above render the introductory language of subsection (a) substantively
identical to and therefore no less effective than the corresponding
introductory language contained in 30 CFR 780.31(a).
Section 90.93 Casing and Sealing of Drilled Holes and Underground
Workings.
PADEP is modifying subsection (d) by deleting the reference to the
requirements of the Gas Operations, Well-Drilling, Petroleum and Coal
Mining Act (52 P.S. Secs. 2101-2602) and adding a reference to the Oil
and Gas Act (58 P.S. Secs. 601.101-601.605). While this subsection has
no precise Federal counterpart, the Director finds that the change in
statutory cross-references does not render it inconsistent with the
Federal regulations at 30 CFR 816.13.
PADEP is modifying subdivision (e)(2)(iii) pertaining to when the
Department may approve lesser distances for the barrier of undisturbed
earth, by deleting the existing language and adding the following:
``The measures included in the permit to minimize damage, destruction
or disruption of services pursuant to 90.147(b) are implemented.'' At
subsection (e), the minimum required radius for the solid barrier of
undisturbed earth that must surround oil and gas wells is now also
being expressed in meters, in addition to feet. The Director finds
that, while subdivision (e)(2)(iii) has no direct Federal counterpart,
the proposed amendments thereto do not render it inconsistent with the
Federal Regulations at 30 CFR 816.13.
Section 90.97 Topsoil: Removal
PADEP is modifying subsection (c) by including a metric conversion
figure, in centimeters, which corresponds to the 12 inch topsoil
thickness threshold, which if not in existence triggers the requirement
to remove, segregate, conserve and replace a twelve inch layer that
includes topsoil and other unconsolidated materials as the final
surface soil layer. A centimeter measurement is also added for the 12-
inch thickness threshold for topsoil and unconsolidated material
combined, which if not in existence triggers the requirement to remove,
segregate, conserve and replace the topsoil and all unconsolidated
materials as the final surface soil layer. These changes are
nonsubstantive in nature and do not require OSM approval.
Subsection (f) is amended, at the end of the second sentence, by
deleting the word ``subsoil'' and replacing it with the word
``topsoil.'' The Director finds that this change renders section 90.97
substantively identical to and therefore no less effective than the
counterpart language contained in the Federal Regulations at 30 CFR
816.22(b).
Section 90.101 Hydrologic Balance: General Requirements
PADEP is modifying subsection (a), which currently requires that
surface activities be planned and conducted to ``prevent to the maximum
extent possible'' disturbances to the prevailing hydrologic balance in
the permit and adjacent area. As modified, subsection (a) will require
that surface activities be planned and conducted to ``minimize'' such
disturbances. This subsection is
[[Page 39297]]
further modified by the addition of a requirement that surface mining
activities shall be planned and conducted to prevent material damage to
the hydrologic balance outside the permit area. Finally, the PADEP
added a provision allowing it to require additional preventative,
remedial, or monitoring measures to assure that material damage to the
hydrologic balance outside the permit area is prevented. The Director
finds that the changes described above render subsection (a)
substantively identical to and therefore no less effective than the
corresponding language contained in the Federal Regulations at 30 CFR
816.41(a).
Section 90.106 Hydrologic Balance: Erosion and Sedimentation Control
PADEP is modifying subdivision (a)(l) to require prevention of
contributions of sediment to streamflow or runoff to the ``extent
possible,'' rather than to the ``maximum extent possible,'' by deleting
the word ``maximum.'' The Director finds that this change renders
subdivision (a)(1) substantively identical to and therefore no less
effective than the corresponding language contained in the Federal
Regulations at 30 CFR 816.45(a)(1).
PADEP is also modifying subdivision (3) by changing the language of
the requirement from ``Prevent erosion to the maximum extent possible''
to ``Minimize erosion to the extent possible.'' The Director finds that
this change renders subdivision (3) substantively identical to and
therefore no less effective than the Federal Regulations at 30 CFR
816.45(a)(3).
Section 90.134 Haul Roads and Access Roads: General
PADEP is modifying subsection (a) by eliminating the phrase
``prevent, to the maximum extent possible'', and substituting the words
``control or prevent'' prior to ``contributions of sediment to streams
or runoff * * *''. The Director finds that the changes described above
render subsection (a) substantively identical to and therefore no less
effective than the corresponding language contained in the Federal
Regulations at 30 CFR 816.150(b)(1), with one exception. In amending
this subsection, the PADEP deleted any requirement with respect to
erosion. Therefore, the Director is requiring that Pennsylvania amend
its performance standards for coal refuse disposal to require that haul
roads and access roads be designed, constructed and maintained to
control or prevent erosion.
Section 90.140 Haul Roads and Access Roads: Restoration
PADEP is modifying this section by deleting the requirement that
roads not to be retained for the approved postmining land use be
reclaimed ``immediately'' after the road is no longer needed for the
associated surface mining activities, and substituting a requirement
that such reclamation occur ``as soon as practicable.''
PADEP is also modifying subdivision (4) by eliminating the
requirement that roadbeds be plowed. The subdivision now reads
``Roadbeds shall be ripped or scarified.'' The Director finds that the
changes described render section 90.140 substantively identical to and
therefore no less effective than the corresponding language contained
in the Federal Regulations at 30 CFR 816.150(f) and (f)(6).
Section 90.147 Support Facilities and Utility Installations
PADEP is modifying subsection (a) by eliminating criteria from the
opening paragraph and deleting subdivisions (1) and (2). The deleted
criteria have no Federal regulatory counterparts. The criteria to
locate, maintain and use buildings is now included in new subdivisions
(1), (2), (2)(i) and (2)(ii) as follows:
(1) Prevents or controls erosion and siltation, water pollution,
and damage to public or private property.
(2) To the extent possible using the best technology currently
available:
(i) Minimizes damage to fish, wildlife and related environmental
values.
(ii) Minimizes additional contributions of suspended solids to
streamflow or runoff outside the permit area. These contributions may
not be in excess of limitations of State or Federal law.
The Director finds that the changes described above render section
90.147 substantively identical to and therefore no less effective than
the Federal Regulations at 30 CFR 816.181(b).
Section 90.150 Protection of Fish, Wildlife and Related Environmental
Values
PADEP is modifying this section to require a person conducting
surface mining activities to, to the extent possible using the best
technology currently available, minimize disturbances and adverse
impacts on fish, wildlife and related environmental values, locate and
operate haul and access roads to avoid or minimize impacts to fish and
wildlife or other protected species, and to avoid disturbance to,
enhance where practicable, or restore, habitats of unusually high value
for fish and wildlife. Prior to these proposed amendments, this section
required that activities use the best technology currently available to
prevent such disturbances and adverse impacts. The Director finds that
the changes described above render section 90.150 substantively
identical to and therefore no less effective than the Federal
Regulations at 30 CFR 816.97(a) and (e)(2), and to the portion of 30
CFR 816.97(f) that pertains to habitats of unusually high value. PADEP
is also modifying subsections (b) and (d) by changing the name of the
Fish Commission to the Fish and Boat Commission. As modified,
subsections (b) and (d) remain substantively identical to and therefore
no less effective than the corresponding language contained in the
Federal regulations at 30 CFR 816.97(b).
Section 90.166 Postdisposal Land Use
PADEP is modifying subsection (a) by changing the reference from
``Subchapter E (relating to coal exploration)'' to ``Subchapter F
(relating to bonding and insurance requirements).'' The Director finds
that this change does not render subsection (a) less effective than the
corresponding Federal regulations at 30 CFR 816.133(a).
PADEP is modifying subsection (b) by eliminating subdivisions (3)
and (4) pertaining to land that has received improper management or was
changed within 5 years of the beginning of mining. These deleted
subdivisions have no Federal counterparts.
PADEP is also adding new subdivision (c)(3) as follows: ``The
proposed postmining land use is reasonably likely to be achieved which
may be demonstrated by one or more of the following or other similar
criteria * * *.'' Criteria currently identified in subdivisions (c)(3),
(4), and (5) are re-lettered as (i), (ii) and (iii) respectively, under
new subdivision (c)(3).
PADEP is also eliminating subdivision (c)(6) pertaining to
certification of plans for postdisposal land use by a registered
professional engineer. This deleted subdivision has no Federal
counterpart. Existing subdivisions (c)(7), (8) and (9) are re-numbered
as (c)(4), (5) and (6), respectively. The Director finds that the
changes described above do not render section 90.166 less effective
than the Federal Regulations at 30 CFR 816.133(b) and (c)(1).
[[Page 39298]]
IV. Summary and Disposition of Comments
Federal Agency Comments
On December 3, 1999, we asked for comments from various Federal
agencies who may have an interest in the Pennsylvania amendment.
(Administrative Record Number 849.03). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the Federal regulations. Two offices of the Mine Safety and Health
Administration (MSHA) responded in letters dated December 22, 1999 and
December 28, 1999 (Administrative Record Numbers 849.06 and 849.07,
respectively). The only comment made noted that the minimum static
safety factor of 1.3 is included in PA Chapters 87 and 88 for outslopes
of a terrace greater than 1v:2h-50%, whereas the Federal Regulations at
30 CFR 77.215(h) specify that the minimum factor should be 1.5 for
refuse piles. In response, the Director notes that neither of the
Pennsylvania provisions cited by MSHA pertains to refuse piles. Rather,
the provisions, at sections 87.144 and 88.118, contain general
requirements for backfilling and grading of bituminous and anthracite
surface coal mining operations, respectively. Use of the 1.3 minimum
static safety factor for such operations is also provided for in the
Federal regulations at 30 CFR 816.102(a)(3). Regardless, Pennsylvania
is deleting both of these provisions in this amendment, as discussed
above.
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 this amendment contains no such provisions
and that EPA concurrence is therefore unnecessary.
OSM did, however request comments from EPA, and EPA responded in
its letter dated December 13, 1999 (Administrative Record Number
849.04). EPA commented that the amendment contained slight wording
changes that appeared to lessen the emphasis on preventing water
quality impacts. As examples, EPA noted that Section 88.335, Haul Roads
and Access Roads, and Section 88.191, Hydrologic Balance:Sediment
Control Measures, were revised to require that erosion be controlled or
prevented (88.335) and minimized to the extent possible (88.191),
rather than prevented to the maximum extent possible, as both sections
previously required. EPA also noted, however, that its understanding is
that the actual requirements for erosion and sedimentation control and
preventing water quality impacts will not be reduced. As explained
above in the Director's Findings, OSM approved both sections in
accordance with section 529(a) of SMCRA and the Federal regulations at
30 CFR 820.11.
Public Comments
No comments were received in response to our request for public
comments.
V. Director's Decision
Based on the above findings, we are approving the amendments to the
Pennsylvania regulatory program. The required amendment at 30 CFR
938.16(ll) is being removed. However, the Director is requiring that
Pennsylvania amend its performance standards for coal refuse disposal
to require that haul roads and access roads be designed, constructed
and maintained to control or prevent erosion.
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--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal
regulations.
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 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, 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
counterpart federal regulations for which an economic analysis was
[[Page 39299]]
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 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.
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 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: June 12, 2000.
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:
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 Pennsylvania regulatory program amendments.
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
November 30, 1999............. June 26, 2000.... 25 Pa. Code 86.2,
86.37, 86.40, 86.64,
86.70, 86.132-
86.134, 86.174,
87.1, 87.77, 87.93,
87.97, 87.101,
87.106, 87.126,
87.127, 87.138,
87.144, 87.146,
87.159, 87.160,
87.166, 87.173,
87.174, 87.176,
87.209, 88.1, 88.56,
88.83, 88.91, 88.96,
88.118, 88.133,
88.138, 88.144,
88.191, 88.221,
88.231, 88.237,
88.283, 88.291,
88.296, 88.334,
88.335, 88.341,
88.492, 88.509,
89.38, 89.65, 89.67,
89.82, 89.87, 89.88,
89.90, 90.1, 90.40,
90.93, 90.97,
90.101, 90.106,
90.134, 90.140,
90.147, 90.150,
90.166.
------------------------------------------------------------------------
3. Section 938.16 is amended by removing and reserving paragraph
(ll) and by adding paragraph (gggg) as follows:
Sec. 938.16 Required regulatory program amendments.
* * * * *
(ll) [Reserved]
* * * * *
(gggg) By August 25, 2000, Pennsylvania shall amend its performance
standards for coal refuse disposal, or provide a written description of
an amendment together with a timetable for enactment which is
consistent with established administrative or legislative procedures in
the state, to require that haul roads and access roads be designed,
constructed and maintained to control or prevent erosion.
[FR Doc. 00-16087 Filed 6-23-00; 8:45 am]
BILLING CODE 6560-50-P