[Federal Register Volume 62, Number 216 (Friday, November 7, 1997)]
[Rules and Regulations]
[Pages 60169-60177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29475]
[[Page 60169]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-113-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions, a proposed
amendment to the Pennsylvania regulatory program (hereinafter referred
to as the ``Pennsylvania program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). Pennsylvania proposed revisions
and additions to its rules pertain to: surface and underground mining
definitions, incidental coal extraction, permit approval, permit
renewal, coal exploration, bonding, permit applications, operation and
reclamation plans, environmental protection standards, anthracite bank
removal and reclamation standards, refuse removal standards, coal
preparation facilities, underground mining erosion and sedimentation
control standards, impoundments, subsidence control, and coal refuse
disposal permit applications and performance standards. The amendment
is intended to revise the Pennsylvania program to be consistent with
the corresponding Federal regulations.
EFFECTIVE DATE: November 7, 1997.
FOR FURTHER INFORMATION CONTACT:
Robert J. Biggi, Director, Harrisburg Field Office, Harrisburg
Transportation Center, Third Floor, Suite 3C, 4th and Market Streets,
Harrisburg, PA 17101. Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Proposed 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. Background information on the
Pennsylvania program, including the Secretary's findings, and the
disposition of comments, and the conditions of approval can be found in
the July 31, 1982, Federal Register (47 FR 33050). Subsequent actions
concerning conditions of approval and program amendments can be found
at 30 CFR 938.11, 938.12, 938,15, and 938.16.
II. Submission of the Proposed Amendment
By letter dated January 23, 1996 (Administrative Record No. PA-
838.00), Pennsylvania submitted a proposed amendment to its program
pursuant to SMCRA in response to the required program amendments at 30
CFR 938.16 (g) through (ii), with the exception of (h). Pennsylvania
proposed to revise sections 86-90 of its Coal Mining Regulations
(Regulatory Reform III).
OSM announced receipt of the proposed amendment in the February 28,
1996 Federal Register (61 FR 7446), and in the same document opened the
public comment period and provided an opportunity for a public hearing
on the adequacy of the proposed amendment. The public comment period
closed on March 29, 1996.
During its review of the amendment, OSM identified concerns
relating to the following sections of Pennsylvania's regulations:
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Section Topic
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86.5(i)3.................................. Administrative Review.
86.5(m)................................... Notification.
No PA Counterpart......................... Public Comment Period,
Inspections, Administrative
Review.
86.55(j).................................. Permit Renewal Applications.
87.108(c), 89.24(c), 90.108(c)............ Siltation Structures.
88.105(b), 88.106(a), 88.201(b), Water Monitoring.
88.202(a), 88.305(b), 88.306(a).
88.321, 90.133............................ Noncoal Waste Disposal.
87.125(a)................................. Preblast Survey.
87.127(i)................................. Vibration Limit.
No PA Counterpart......................... Blast Monitoring.
87.124(b)................................. Blasting Schedule.
No PA Counterpart......................... Blast Design.
87.127(f)................................. Flyrock
87.129(4)................................. Blasting.
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OSM notified Pennsylvania of these concerns by letter dated
February 21, 1997. By letter dated March 28, 1997, Pennsylvania
responded to OSM's concerns by submitting additional explanatory
information and by proposing to make certain revisions to its
regulations during its submission of Regulatory Reform IV. Because the
additional information was explanatory in nature and did not constitute
a major revision of the original submission, OSM did not reopen the
comment period.
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
proposed amendment. Revisions not specifically discussed below concern
nonsubstantive wording changes, or revised cross-references and
paragraph notations to reflect organizational changes resulting from
this amendment.
A. Revisions to Pennsylvania's Regulations That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
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State regulation Subject Federal counterpart
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86.1....................................... Definition--``MSHA''.............................. 30 CFR 701.5.
86.1....................................... Definitions--``Cumulative Measurement Period,''... .......................................................
``Cumulative Production,'' ``Cumulative Revenue,'' 30 CFR 702.5.
``Mining Area,'' ''Other Minerals.''.
86.5(a)-(e)................................ Extraction of Coal................................ 30 CFR 702.11 (a), (b), (d).
86.5(f).................................... Public Availability of Information................ 30 CFR 702.13.
86.5(g).................................... Application Requirements.......................... 30 CFR 702.12.
86.5(h) (excluding (h)(2))................. Exemption Requirements............................ 30 CFR 702.11(c), 702.14.
86.5(i)(1), (2)............................ Exemption Determination........................... 30 CFR 702.11(e)(1), (2).
86.5(j)(1)-(3)............................. Conditions of Exemption........................... 30 CFR 702.15(a)-(c).
86.5(j)(4)................................. Reports........................................... 30 CFR 702.5(a)(2), 702.18.
86.5(k).................................... Stockpiling....................................... 30 CFR 702.16.
[[Page 60170]]
86.5(l).................................... Compliance Review................................. 30 CFR 702.17(a).
86.5(n).................................... Revocation........................................ 30 CFR 702.17(c)(3).
86.5(o).................................... Enforcement....................................... 30 CFR 702.17(c)(2).
86.55(g)(6)................................ Permit Renewal.................................... 30 CFR 774.15(c)(iv).
86.133(g).................................. Coal Exploration.................................. 30 CFR 815.15(g).
86.156(b).................................. Bonds............................................. 30 CFR 800.16(e)(1).
86.175(b)(3)............................... Bond Release...................................... 30 CFR 800.40(c)(2).
86.182(e).................................. Bond Forfeiture................................... 30 CFR 800.50(b)(2).
86.182(f)(1)............................... Bond Forfeiture................................... 30 CFR 800.50(d)(1).
87.46(b)(3)(i)............................. Surface Mines--Surface Water...................... 30 CFR 780.21(b)(2).
87.69(b)(4)................................ Hydrologic Balance................................ 30 CFR 780.21(i), (j).
87.127(e)(2)............................... Explosives--Surface Blasting...................... 30 CFR 816.67(b)(1).
87.127(j).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(3).
87.127(n).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(2)(i).
87.127(p).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(4).
87.131(n).................................. Disposal of Excess Spoil.......................... 30 CFR 816.71(h)(2).
87.135(a).................................. Protection of Underground Mining.................. 30 CFR 816.79.
87.138(c).................................. Protection of Fish, Wildlife and Related 30 CFR 816.97(c).
Environmental Values.
88.24(b)(4)(i)............................. Anthracite Coal Mining............................ 30 CFR 780.22(b)(2)(ii), (iii).
88.24(b)(4)(ii)............................ Anthracite Coal Mining............................ 30 CFR 780.22(d).
88.26(b)(2)(i)............................. Anthracite--Surface Water......................... 30 CFR 780.21(b)(2).
88.49(b)(2)................................ Anthracite--Hydrologic Balance.................... 30 CFR 780.21(i).
88.54...................................... Anthracite-Protection of Underground Mining....... 30 CFR 816.79.
88.61(b)(1)................................ Anthracite-Prime Farmlands........................ 30 CFR 785.17(c)(1).
88.284..................................... Anthracite-Sealing of Drilled Holes and 30 CFR 816.14.
Exploratory Openings.
88.491(d)(2)(A)............................ Anthracite--Surface Water......................... 30 CFR 780.21(b)(2).
88.491(j).................................. Anthracite--Permit Applications................... 30 CFR 780.15(c).
88.492(d)(2)(iii).......................... Anthracite-Ground and Surface Water Monitoring 30 CFR 780.21(i)(1), (j)(2).
Plans.
89.34(a)(1)(iii), (2)(i), (2)(ii).......... Hydrology-Underground Mining And Coal Preparation 30 CFR 784.14(h), (b)(2), (i).
Facilities.
89.82(d)................................... Performance Standards............................. 30 CFR 817.97(c).
89.172(b).................................. Coal Preparation.................................. 30 CFR 785.21(c).
90.14(b)(3)(i)............................. Coal Refuse--Surface Water........................ 30 CFR 780.21(b)(2).
90.35(b)(3)................................ Ground and Surface Water Monitoring Plans......... 30 CFR 780.21(i)(1), (j)(2).
90.150(c).................................. Protection of Fish, Wildlife and Related 30 CFR 816.97(c).
Environmental Values.
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Because the above proposed revisions re identical in meaning to the
corresponding Federal regulations, the Director finds that
Pennsylvania's proposed rules are no less effective than the Federal
rules.
B. Revisions to Pennsylvania's Regulations That Are Not Substantively
Identical to the Corresponding Provisions of the Federal Regulations
1. 86.1/87.1--Definitions
Pennsylvania is proposing to amend the definition of ``surface
mining activities'' to include the construction of a road or similar
disturbance for any purpose related to a surface mining activity,
including that of a moving or walking dragline or other equipment, or
for the assembly or disassembly or staging of equipment. The Director
finds that definition proposed by Pennsylvania is no less effective
than the Federal definition at 30 CFR 700.5. The proposed revision also
satisfies the required amendment at 30 CFR 938.16(g) which required
Pennsylvania to amend its definition to make it clear that the
construction of any road, or similar disturbance, shall be deemed a
surface mining activity and will be regulated.
2. 86.5(h)(2)--Extraction of Coal
Pennsylvania is proposing to require in this subsection that no
request for an exemption will be approved unless the applicant can show
that the coal to be produced will be from the geological stratum above
the deepest stratum from which other minerals are extracted for
purposes of bona fide sale or reasonable commercial use. The
corresponding Federal regulation, at 30 CFR 702.14(a)(2), contains the
same requirement, except that it allows the exemption to be approved if
the coal to be produced is in the geological stratum lying above or
below the deepest stratum from which other minerals are extracted.
Because Pennsylvania limits the exemption allowance to where the coal
is produced above the deepest stratum from which other minerals are
extracted, it is more restrictive, and therefore more stringent, than
its Federal counterpart. In accordance with section 505(b) of SMCRA (30
U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.5(h)(2)
is not inconsistent with SMCRA.
3. 86.5(I)(3)--Exemption Determinations
Pennsylvania is proposing to permit a person who is adversely
affected by the determination of exemption to file an appeal as
provided by Chapter 21 of the regulations. The proposed regulation is
substantively identical to the Federal regulations at 30 CFR
702.11(f)(1). However, the Federal regulations at 30 CFR 702.11(f)(2)
specify that such appeals shall not suspend the effect of that
determination. In its letter dated March 28, 1997, Pennsylvania stated
that appeals to the Environmental Hearing Board (EHB) under the
provisions of Chapter 21 do not stay the effect of the Department of
Environmental Protection`s (Department) actions. If an appellant wishes
to stay the effect of such an action, the appellant must petition the
EHB which, in turn, must issue a supersedeas. The Director finds the
proposed Pennsylvania regulation no less effective than the Federal
regulations, since Pennsylvania law provides, generally, that an appeal
does not, by itself, suspend the effect of the decision appealed from.
4. 86.5(m)--Notification
Pennsylvania is proposing to require that if the Department
believes that a specific mining area was not exempt at the end of the
previous reporting period, or is not exempt or cannot satisfy the
exemption criteria at the end of the
[[Page 60171]]
current reporting period, it will notify the operator that the
exemption may be revoked and explain the reasons. The exemption will be
revoked unless the operator demonstrates within 30 days that the area
in question should continue to be exempt. The operator and interested
parties will be notified immediately of the revocation. The Federal
regulations at 30 CFR 702.17(b) and (c)(1) have the same requirements.
However, the Federal regulations also specify that if a decision is
made not to revoke an exemption, the regulatory authority shall
immediately notify the operator and intervenors. The Director finds
that the proposed Pennsylvania regulation is less effective than the
Federal regulations because it lacks this notification requirement. He
is, therefore, requiring that Pennsylvania amend its program to include
the notification requirement to operators and intervenors of a
Department's decision not to revoke an exemption.
5. 86.55(i),(j)--Permit Renewals
Pennsylvania is proposing at subsection (i) to allow a permittee to
provide a written notice to the Department in lieu of a complete
application if, after the permit expiration date, the remaining surface
mining activities will consist solely of reclamation. The Department
may renew the permit conditioned upon only reclamation activities
occurring. A new permit is required if the permittee resumes coal
extraction, preparation, or refuse disposal. At subsection (j),
Pennsylvania is proposing to require that a permittee submit a renewal
application if he has provided written notice in accordance with the
terms of subsection (i) and determines prior to the permit expiration
date that coal extraction, preparation, or refuse disposal will occur
or treatment facilities will be required after the permit expiration
date. The Federal regulations at 30 CFR 773.11(a) allow a permittee to
forego permit renewal where only reclamation activities remain to be
performed, but require that permit obligations continue until
reclamation is complete. Subsection (i), as proposed, contains a
similar provision, in that it provides that the permit will be renewed
even where only reclamation obligations remain, but requires only a
notice of renewal in such instances, rather than a complete renewal
application, with public notice. Therefore, subsection (i) is no less
effective than 30 CFR 773.11(a). However, the Federal regulations at 30
CFR 774.15(b)(1) require that an application for permit renewal be
submitted at least 120 days before expiration of the existing permit
term. Pennsylvania's proposed revision at subsection (j) does not
contain this provision. Therefore, the Director finds that it is less
effective than the Federal regulations, and he is requiring that
Pennsylvania amend its regulation to include the 120 day submittal
requirement.
6. 86.134(8)--Coal Exploration
Pennsylvania proposes to require that each coal exploration hole,
borehole, well, or other underground opening created or encountered by
exploration must meet the requirements of its program relating to
preventing discharges from underground mines, and closing of
underground mine openings. The Federal counterpart regulation, at 30
CFR 815.15(g), contains these same requirements, except that it applies
only to holes, etc., which are created during coal exploration, and not
to holes encountered during coal exploration. As such, Pennsylvania's
proposal is more inclusive, and therefore more stringent, than its
Federal counterpart. In accordance with section 505(b) of SMCRA (30
U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.134(8)
is not inconsistent with SMCRA.
7. 86.182(f)(2)--Bond Forfeiture
Pennsylvania is proposing to require that if the bond amount
forfeited by the permittee is more than the amount necessary to
complete the reclamation, the excess funds shall be used by the
Department for certain prescribed purposes specified in subsection
18(a) of the Pennsylvania Surface Mining Act. The Federal regulations
at 30 CFR 800.50(d)(2) require the regulatory authority to return any
unused funds to the party from whom they were collected. However,
Pennsylvania considers the excess funds to be a penal bond and reserves
the right to apply the funds to approved purposes. The Director finds
that the proposed Pennsylvania revision is, in effect, more stringent
than the Federal regulations. Therefore, in accordance with section
505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), subsection
86.182(f)(2) is not inconsistent with SMCRA.
8. 86.193(h)--Civil Penalties
Pennsylvania is proposing to delete the provision that the
Department may, when appropriate, assess a penalty against corporate
officers, directors, or agents as an alternative to, or in combination
with, other penalty actions. This provision currently appears in
Pennsylvania's regulations at 86.195(a). The Director finds that the
proposed deletion will not render the Pennsylvania program less
effective than the Federal regulations at 30 CFR 846.12(a). However,
the Director notes that Pennsylvania must still amend subsections
86.195(a) and (b), or otherwise amend its program, as directed at 30
CFR 938.16(eee).
9. 87.45(a)(4), 88.25(a)(4), 88.491(c)(1)(iv), 89.34(a)(1)(i),
90.131(1)--Surface Coal Mines, Anthracite (General Provisions),
Anthracite (Coal Preparation Facilities), Underground Coal Mines, Coal
Refuse Disposal: Groundwater
Pennsylvania is proposing to require that a permit applicant supply
certain baseline information pertaining to groundwater, including water
quality descriptions of total dissolved solids or specific conductance
corrected to 25 degrees centigrade, pH, total iron, total manganese,
alkalinity, acidity, and sulfates. The counterpart Federal regulations,
at 30 CFR 780.21/784.14(b)(1), also require water quality descriptions,
but do not specifically require descriptions of alkalinity, acidity or
sulfates. As such, the Pennsylvania proposals are more stringent than
their Federal counterparts. Therefore, in accordance with section
505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), these
Pennsylvania proposed amendments are not inconsistent with SMCRA.
10. 87.46(b)(c)(ix)--Surface Water Information: Surface Coal Mines/
88.26(b)(2)(ix)--Surface Water Information: Anthracite Surface Mines/
88.491(d)(2)(ii)(I), (J)--Surface Water Information: Anthracite
Underground Mines/90.14(b)(3)(ix)--Surface Water Information--Coal
Refuse Disposal
Pennsylvania is proposing to require that a permit application
include surface water information that specifies total aluminum in
milligrams per liter. The Federal regulations at 30 CFR 780.21/
784.14(b)(2) do not include this provision but rather require minimum
water quality descriptions which Pennsylvania's program already
requires. Also, Pennsylvania is requiring other surface water
information, as appropriate. The Federal regulations at 30 CFR 780.21/
784.14(b)(2) also do not include this provision. As such, the
Pennsylvania proposals are more stringent than their Federal
counterparts. Therefore, in accordance with section 505(b) of SMCRA (30
U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed
[[Page 60172]]
amendments are not inconsistent with SMCRA.
11. 87.54(b)/87.65(b)--Maps, Cross Sections and Related Information:
Surface Mines/88.31/88.44(b)--Maps and Plans: Anthracite Surface Mines/
88.492(j)(3)--Maps and Plans: Anthracite Underground Mines/90.21(b),
90.46(3)--Maps and Plans: Coal Refuse Disposal
Pennsylvania is proposing to require that qualified professional
geologists also be registered in order to prepare and certify maps,
plans, and cross sections. The corresponding Federal regulations, at 30
CFR 779.25(b) (for 87.54(b) and 88.31(b)), 780.14(c) (for 87.65(b) and
88.44(b)), and 784.23(c) (for 88.492(j)(3)), require only that the
geologist be a professional. However, Pennsylvania may require,
additionally, that the geologist be a registered professional. As such,
the Pennsylvania proposals are more stringent than their Federal
counterparts. Therefore, in accordance with section 505(b) of SMCRA (30
U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed
amendments are not inconsistent with SMCRA.
12. 87.69(b)(5)--Hydrologic Balance: Surface Mines/88.49(b)(3)--
Hydrologic Balance: Anthracite Surface Mines/88.492--Reclamation and
Operation Plan: Anthracite
Pennsylvania is proposing to require that the determination of
probable hydrologic consequences (PHC) address the parameters measured
in accordance with subsections 87.45, 87.46, 88.25, 88.26, and 88.491.
The Federal regulations at 30 CFR 780.21(f)(2) require the PHC to be
based upon baseline hydrologic information contained in the permit
application. This baseline information is collected for the same ground
and surface water parameters which are required to be measured pursuant
to subsection 87.45, 87.46, 88.25 and 88.26. Therefore, the Director
finds that the proposed Pennsylvania regulations are no less effective
than the Federal regulations at 30 CFR 780.21(f).
13. 87.73--Dams, Ponds, Embankments, and Impoundments: Surface Mines/
90.111(7), 90.113(i), 90.120--Impoundments: Coal Refuse Disposal
At subsection 87.73(c)(1), Pennsylvania is proposing to revise its
requirements for detailed design plans for dams, ponds, embankments and
impoundments. Engineers, when necessary, will obtain assistance from
experts in related fields when preparing design plans for impoundments
meeting or exceeding MSHA size classification or other specified
criteria. For those impoundments not meeting the size classification or
other criteria, the plan shall be prepared by a qualified engineer or
land surveyor. The Federal regulations at 30 CFR 780.25(a) (2) and (3)
have the same requirements. Therefore, the Director finds that the
proposed Pennsylvania regulation is no less effective than the Federal
regulations. The proposed revision also satisfies the required
amendment at 30 CFR 938.16(s) which required Pennsylvania to clarify
that all impoundments with a storage volume of 20 acre-feet or more
must be designed by or under the direction of, and certified by, a
qualified registered professional engineer with assistance from experts
in related fields.
At subsections 87.73(c)(4), 90.111(7) and 90.113(i), and at section
90.120, Pennsylvania is proposing to prohibit the permanent retention
of an impounding structure constructed of coal refuse or used to
impound coal refuse unless it develops into a fill meeting the coal
refuse disposal requirements of section 90.122. The Federal regulations
at 30 CFR 816.84(b)(1) also prohibit permanent impoundments on coal
refuse or coal refuse impounding structures, but contain no exceptions
for the development of a fill. However, subsection 90.122(j) of
Pennsylvania's regulations does prohibit the retention of permanent
impoundments on a completed fill. By cross-referencing subsection
90.122(j), these provisions contain the necessary prohibition of
permanent impoundments. Therefore, the Director finds that the proposed
Pennsylvania regulations are no less effective than the Federal
regulations at 30 CFR 816.84(b)(1).
14. 87.102(a)--Effluent Standards: Surface Mines/88.92(a)--Effluent
Standards: Anthracite Surface Mines/88.187(a)--Effluent Standards:
Anthracite Bank Removal/88.292(a)--Effluent Standards: Anthracite
Refuse Disposal/89.52(c)--Effluent Standards: Underground Mining and
Coal Preparation Facilities/90.102(a)--Effluent Standards: Coal Refuse
Disposal
Pennsylvania is proposing to revise the instantaneous maximum level
for manganese to 5.0 mg/l for its Group ``B'' effluent limitations, and
to add instantaneous maximum discharge levels for manganese (5.0 mg/l)
and suspended solids (90 mg/l) to its Group ``A'' effluent limitations.
(Group ``A'' effluent limitations apply to pit water discharges in all
types of weather, and to all other discharges in dry weather or during
very low precipitation events. Group ``B'' effluent limitations apply
to discharges, other than pit water, during precipitation events of up
to 10 years and 24 hours.) The Director notes that the Clean Water Act
effluent limitations applicable to coal mining operations, at 40 CFR
Part 434, do not contain instantaneous maximum limits for manganese or
suspended solids. Therefore, Pennsylvania's proposals are in addition
to the requirements of the Clean Water ACt regulations. Also, the
Director notes that the Environmental Protection Agency, in its letter
of concurrence with this program amendment, stated that the addition of
these instantaneous maximum limits will ``provide inspectors an
enforceable compliance measure without the necessity of obtaining time
consuming composite samples.'' (Administrative Record No. 838.08).
There are no Federal counterparts in SMCRA or the Federal regulations
promulgated thereunder to these proposed revisions. However, 30 CFR
816/817.42 require that discharges of water from surface mining
operations be made in compliance with, among other things, the effluent
limitations contained in 40 CFR Part 434. Because the Environmental
Protection Agency has concurred in the approval of this amendment, the
Director finds that the proposed Pennsylvania revisions are consistent
with the Federal regulations at 30 CFR 816/817.42.
15. 87.108(c)--Sedimentation Ponds: Surface Coal Mines/89.24(c)--
Sedimentation Ponds: Underground Mines and Coal Preparation Facilities/
90.108(c)--Sedimentation Ponds: Coal Refuse Disposal
Pennsylvania is proposing to require that sedimentation ponds be
maintained until the disturbed area has been stabilized and revegetated
and removal is approved by the Department. The ponds may not be removed
sooner than 2 years after the last augmented seeding, unless the
Department finds that the disturbed area has been sufficiently
revegetated and stabilized. Pennsylvania is also proposing to delete
the references to ``other treatment facilities.'' This deletion is
presumably proposed because the Pennsylvania regulations, at sections
87.108, 89.24 and 90.108, require all drainage to be passed through
sedimentation ponds, rather than through ``other treatment
facilities.'' Therefore, the deletion is approved to the extent that
``other treatment facilities'' are not permitted to be used to treat
surface drainage. However, the Federal regulations at 30
[[Page 60173]]
CFR 816/817.46(b)(5) prohibit the removal of siltation structures
sooner than 2 years after the last augmented seeding.
Because Pennsylvania's proposal includes an exception to this
requirement, the Director finds that the proposed Pennsylvania revision
is less effective than the Federal regulations. He is also requiring
that Pennsylvania amend its regulation to require, without exception,
that sedimentation ponds, where used, and other treatment facilities,
if used, cannot be removed sooner than 2 years after the last augmented
seeding.
16. 87.112--Hydrologic Balance: Surface Mines/88.102--Hydrologic
Balance: Anthracite Surface Mines/88.197--Hydrologic Balance:
Anthracite Bank Removal/88.302--Hydrologic Balance: Anthracite Refuse
Disposal/89.101 and 112--Impoundments: Underground Mines/90.112--
Hydrologic Balance: Coal Refuse Disposal
At subsections 87.112(b), 88.102(b), 88.197(b), 88.302(b), 89.112,
and 90.112(b), Pennsylvania is proposing to require a minimum static
safety factor of 1.3 for dams, ponds, embankments, and impoundments. At
subsections 87.112(b)(1) and 89.101(a), Pennsylvania is proposing to
require that impoundments that meet or exceed MSHA size classification
of 30 CFR 77.216(a) be designed and certified by a qualified registered
professional engineer with assistance, as necessary, from experts in
related fields. Impoundments not meeting or exceeding MSHA size
classification are to be designed and certified by a qualified
registered professional engineer or land surveyor. Each impoundment
shall be certified that it has been constructed and is being maintained
as designed in accordance with the approved plan and performance
standards. At subsection 90.112(b)(1), Pennsylvania is proposing to
require that each impoundment be certified that it has been constructed
or is being maintained as designed in accordance with applicable
performance standards. The Federal regulations at 30 CFR 780.25/
784.16(a)(2), and (3) specify the design, certification, and stability
requirements for impoundments. The Federal regulations at 816/
817.49(a)(4)(ii) contain the 1.3 static safety factor requirement for
impoundments not meeting the size or other criteria of 30 CFR
77.216(a). The Director finds that the proposed Pennsylvania revisions
are substantively identical to these requirements in the Federal
regulations. The proposed revision also satisfies two required
amendments. At 30 CFR 938.16(t), Pennsylvania was required to ensure
that all impoundments which meet or exceed the MSHA size classification
are designed and certified by or under the direction of a qualified
registered professional engineer. At 30 CFR 938.16(u), Pennsylvania was
required to ensure that all impoundments be certified that they have
been constructed and are being maintained as designed in accordance
with the approved plan and performance standards.
At subsections 87.112(d) and 89.101(b), Pennsylvania is proposing
to require that impoundments that meet or exceed the MSHA size
classification or other criteria of 30 CFR 77.216(a) be inspected and
certified by a qualified registered professional engineer. Impoundments
not meeting or exceeding the MSHA size classification or criteria are
to be inspected during construction and certified after construction
and annually thereafter by a qualified registered professional engineer
or land surveyor until removal of the structure or release of the
performance bond. The engineer or surveyor must be experienced in the
construction of impoundments. The Federal regulations at 30 CFR 816/
817.49(a)(11) contain these same inspection requirements for
impoundments. Therefore, the Director finds that the proposed
Pennsylvania revisions are substantively identical to these
requirements in the Federal regulations.
At subsections 87.112(f), 89.101(d), and 90.112(f), Pennsylvania is
proposing to clarify that it will consider MSHA's review for
impoundments. It will, however, review impoundments as required under
subsection (a). The Director finds that the proposed Pennsylvania
revision is substantively identical to the Federal regulations at 30
CFR 780.25/784.16(c)(2), pertaining to reclamation plans for
impoundments. The proposed revision also satisfies the required
amendment at 30 CFR 938.16(v) which allows Pennsylvania to consider
MSHA's action on plans for impoundments but requires it to make its own
findings with respect thereto.
17. 87.116--Hydrologic Balance: Groundwater Monitoring--Surface Mines/
87.117--Hydrologic Balance: Surface Water Monitoring--Surface Mines/
88.105--Hydrologic Balance: Groundwater Monitoring--Anthracite Mines/
88.106--Hydrologic Balance: Surface Water Monitoring--Anthracite
Surface Mines/88.201--Hydrologic Balance: Groundwater Monitoring--
Anthracite Bank Removal/88.202--Hydrologic Balance: Surface Water
Monitoring--Anthracite Bank Removal/88.305--Hydrologic Balance:
Groundwater Monitoring--Anthracite Refuse Disposal/88.306--Hydrologic
Balance: Surface Water Monitoring--Anthracite Refuse Disposal/90.115--
Hydrologic Balance: Groundwater Information--Coal Refuse Disposal
Performance Standards/90.116--Hydrologic Balance: Surface Water
Monitoring--Coal Refuse Disposal Performance Standards
At subsections 87.116(b), 88.105(b), 88.201(b), 88.305(b),
90.115(b), 87.117(a), 88.106(a), 88.202(a), 88.306(a), and 90.116(a),
Pennsylvania is proposing to identify the minimum monitoring
requirements for groundwater and surface water. These monitoring
requirements include: total dissolved solids or specific conductance
corrected to 25 degrees C, pH, acidity, alkalinity, total iron, total
manganese, sulfates, and water levels. The information is to be
reported to the Department every 3 months for each location. At
87.116(d), 88.105(d), 88.201(d), 88.305(d), 90.115(d), 87.117(b),
88.106(b), 88.202(b), 88.306(b), and 90.116(b), the Department is
authorized to require monitoring and reporting more frequently than
every 3 months and to monitor additional parameters beyond the minimum
specified in this section. The Director finds that Pennsylvania's
revisions contain the same requirements, and are therefore
substantively identical to, the Federal regulations at 30 CFR 780.21
(i) and (j), pertaining to ground and surface water monitoring, except
that the Federal regulations do not require the monitoring of acidity,
alkalinity, or sulfates. As such, the Pennsylvania proposals are more
stringent than their Federal counterparts. Therefore, in accordance
with section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b),
these Pennsylvania proposed amendments are not inconsistent with SMCRA.
18. 87.127--Use of Explosives: Blasting
At subsection (h), Pennsylvania is proposing to require that
maximum
[[Page 60174]]
peak particle velocity may not exceed the values approved in the blast
plan. It also includes frequency of vibration as a factor that the
Department may consider in reducing the maximum peak particle velocity
allowed. The Director finds that the proposed revision is no less
effective than the Federal regulations at 30 CFR 816.67(d)(1) and
(d)(5) pertaining to ground vibrations. The proposed revision also
satisfies the required amendment at 30 CFR 938.16(y) which required
Pennsylvania to ensure that all structures in the vicinity of the
blasting area be protected from damage by establishing maximum
allowable limits on the ground vibration.
At subsection (i)(2), Pennsylvania is proposing to exempt from
maximum peak particle velocity limitations those structures located on
the permit area when the owner and lessee, if leased to another party,
of the structure have each signed a waiver releasing the vibration
limit. The Federal regulations at 30 CFR 816.67(e)(1) and (2) exempt
those structures outside the permit area owned by the permittee and not
leased, or owned and leased with a written wavier by the leasee. The
Federal peak particle velocity limitations do not apply, however, to
structures inside the permit area. In its letter dated March 28, 1997,
Pennsylvania states that while OSM's general provisions pertaining to
the prevention of the adverse effects of explosives apply only to
damage outside the permit area, Pennsylvania allows a waiver of
vibration limits inside the permit area only, where the Federal peak
particle velocity limitations do not apply anyway. Pennsylvania does
not permit waivers outside the permit area and, as such, provides
additional protection against damage. Therefore, the Director finds
that the proposed revision is not inconsistent with SMCRA.
At subsection (k), Pennsylvania is proposing to require that a
seismograph record become part of the blast record within 30 days after
it obtained. It shall be analyzed by a qualified independent party. The
Director notes that the proposed revisions adds requirements not
contained in the Federal regulations at 30 CFR 816.67(d)(2) which
require seismograph records for each blast. However, these additional
provisions are consistent with the Federal requirement to keep a
seismographic record and, therefore, can be approved.
19. 87.129(4)--Use of Explosives: Blasting Records
Pennsylvania is proposing to require that the blast record include
the direction and distance, in feet, to the nearest public building and
other structures. The Federal regulations at 30 CFR 816.68(d) require
only that the blast record include the direction and distance, in feet,
from the nearest blasting hole to the nearest dwelling, public
building, school, church, community or institutional building outside
the permit area. However, as noted in Finding 18, above, Pennsylvania
applies its air blast and ground vibration standards to buildings
within the permit area as well as outside the permit area. As such,
Pennsylvania's program is more stringent than the Federal regulations.
In order to be consistent with its own requirements, Pennsylvania has
amended its blast record provisions to include the direction and
distance to the nearest building, regardless of whether the building is
located within or outside of the permit area. In accordance with
section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), this
proposed amendment is not inconsistent with SMCRA.
20. 87.136--Disposal of Noncoal Wastes: Surface Mines/88.321--Disposal
of Noncoal Wastes: Anthracite Refuse Disposal/89.63--Disposal of
Noncoal Wastes: Underground Mining and Coal Preparation Facilities/
90.133--Disposal of Noncoal Wastes: Coal Refuse Disposal
Pennsylvania is proposing to require that noncoal wastes be
disposed of or temporarily stored in accordance with the Solid Waste
Management Act and related regulations. This requirement is no less
effective than the Federal regulations at 30 CFR 816/817.89(b), which
provides for final disposal of noncoal wastes in a State approved solid
waste disposal area. However, sections 88.321 and 90.133 state that
waste materials with low ignition points may not be deposited on or
near a coal refuse disposal pile. The Federal regulation at 30 CFR
816.89(c) does not permit any noncoal waste to be deposited in a refuse
pile or impounding structure. Pennsylvania's prohibition applies only
to its listed materials and other waste materials with low ignition
points. Therefore, the Director finds that the proposed Pennsylvania
revisions to sections 88.321 and 90.133 are less effective than the
Federal regulation. He is also requiring that Pennsylvania amend its
program to prohibit any noncoal waste from being deposited in a refuse
pile or impounding structure.
21. 88.105(c)--Groundwater Monitoring: Anthracite Mines/88.201(c)--
Groundwater Monitoring: Anthracite Bank Removal/88.305(c)--Groundwater
Monitoring: Anthracite Refuse Disposal
Pennsylvania is proposing to permit the Department to require the
operator to conduct additional hydrologic tests to demonstrate
compliance with the groundwater monitoring sections of the regulations.
The Federal regulations at 30 CFR 780.21(b)(3) require this additional
testing where the PHC determination indicates that adverse impacts may
occur to the hydrologic balance, or that acid-forming or toxic-forming
material is present that may result in the contamination of surface or
ground water supplies. Therefore, subsections 88.105(c), 88.201(c) and
88.305(c) are less effective in that they merely allow, but do not
require, additional testing as appropriate, and the Director is
requiring Pennsylvania to amend its program to require such additional
hydrologic testing whenever the PHC determination indicates that
adverse impacts may occur to the hydrologic balance, or that acid-
forming or toxic-forming material is present that may result in the
contamination of surface or ground water supplies.
22. 88.381(c)(7)--Coal Preparation Facilities
Pennsylvania is proposing to require that an application include
monitoring plans and that surface and ground water information, as well
as monitoring plans, be presented in accordance with its regulations
pertaining to ground and surface water information. There is no direct
Federal counterpart to this proposed amendment. However, the Director
finds that the proposed Pennsylvania revision is consistent with the
Federal regulation at 30 CFR 785.21, which requires that an operator
obtain a permit to operate a coal preparation plant outside the permit
area for a specific mine, and that the permit demonstrate that the
applicant will comply with the performance standards at 30 CFR Part
827, which standards include the requirement to comply with the Federal
regulations at 30 CFR 816.41, pertaining to protection of the
hydrologic balance.
23. 89.142(a)(6)(vii)--Maps: Underground Mines and Coal Preparation
Facilities
Pennsylvania is proposing to require that maps identify major
electric transmission lines by name or numerical reference. While there
is no direct Federal counterpart to this requirement, the Director
finds that the
[[Page 60175]]
proposed Pennsylvania revision is consistent with the Federal
regulations at 30 CFR 783.24(e), pertaining to permit application maps,
which requires that such maps show the location of major electric
transmission lines and pipelines.
24. 89.143(b)(3)(i)(B)--Performance Standards: Underground Mines and
Coal Preparation Facilities
Pennsylvania is proposing to require that a pillar lying partially
within the support area be considered part of the support area and be
consistent with the other support pillars in size and pattern. While
this provision has no direct Federal counterpart, the Director finds
that it is consistent with the Federal regulations at 30 CFR
784.20(b)(5), pertaining to subsidence control plans, which allows
operators the option of leaving pillars of coal in order to prevent or
minimize subsidence.
25. 90.39(e)--Impoundments: Coal Refuse Disposal
Pennsylvania is proposing to require that permit application plans
provide for the removal of impoundments constructed of or used to
impound coal refuse as part of site reclamation. The Director finds
that the proposed Pennsylvania revision is no less effective than the
Federal regulations at 30 CFR 816/817.84(b)(1) which prohibit the
permanent retention of such structures.
26. 90.122--Coal Refuse Disposal
Pennsylvania is proposing, at subsection (j), to delete all
exceptions to the prohibition against retaining permanent impoundments
or depressions in a completed coal refuse disposal fill. The Director
finds that this deletion renders subsection 90.122(j) no less effective
than the Federal regulations at 30 CFR 816.84(b)(1), which prohibits
the retention of permanent impounding structures constructed of coal
mine waste or intended to impound coal mine waste.
27. 90.130--Coal Refuse Dams: Coal Refuse Disposal
Pennsylvania is proposing to delete the provision prohibiting the
permanent retention of coal refuse dams as part of the approved
postmining landuse. However, because the structures must comply with
subsection 90.122(j), which contains the prohibition, the Director
finds that the proposed Pennsylvania revision is no less effective than
the Federal regulation at 30 CFR 816.84(b)(1).
C. Revisions to Pennsylvania's Regulations With No Corresponding
Federal Regulations
1. 77.3(b)--Relationship to Coal Mining
Pennsylvania is proposing to add the provision that the incidental
extraction of coal under subsection (a) will conform to section 86.5
pertaining to extraction of coal incidental to noncoal surface mining.
There is no Federal counterpart to this provision. However, the
Director finds that the proposed regulation is not inconsistent with
the requirements of SMCRA and the Federal regulations, which do contain
counterparts to the requirements of section 86.5.
2. 86.37(b)--Permits
Pennsylvania is proposing to prohibit an incremental phase approval
of a permit if the Department has already issued an incremental phases
approval for the area to another permittee, except for an area used for
access or haul roads. There is no Federal counterpart to this
provision. However, incremental phase approvals of permits are already
included in Pennsylvania's approved program, in this same subsection.
Therefore, the Director finds that the proposed revision does not
render the Pennsylvania program inconsistent with the requirements of
SMCRA or the Federal regulations.
3. 86.55(c)--Permit Renewals
Pennsylvania is proposing to require that if a permittee provides a
written notice under section (i) pertaining to permits conditioned upon
only reclamation activity being performed, the notice shall be filed
with the Department at least 180 days before the expiration date of the
permit. There is no direct Federal counterpart to this provision.
However, the Director finds that the proposed revision is consistent
with the Federal regulations at 30 CFR 773.11(a), which allows
permittees to forego obtaining permit renewals where only reclamation
activities remain to be performed.
4. 87.92(g)--Signs and Markers: Surface Mines/88.82(c)--Signs and
Markers: Anthracite Mines/88.182(b)--Signs and Markers: Anthracite Bank
Removal/88.282(c)--Signs and Markers: Anthracite Refuse Removal/
89.51(h)--Signs and Markers: Underground Mining and Coal Preparation
Plans/90.92(g)--Signs and Markers: Coal Refuse Disposal
Pennsylvania is proposing to require that ground and surface water
monitoring locations and sampling points used to obtain background
information be clearly marked and identified. The requirement may be
waived if the monitoring locations or sampling points are obvious or if
marking would be objectionable for aesthetic reasons. The Federal
regulations at 30 CFR 816/817.11 do not contain this requirement.
However, the Director finds that the proposed revisions, which are in
addition to the requirements of the Federal regulations, are not
inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30
U.S.C. 1255(b)), and 30 CFR 730.11(b).
5. 87.93(d)--Casing and Sealing of Drilled Holes: Surface Mines/
88.83(d)--Sealing of Drilled Holes: Anthracite Mines/88.283(d)--Sealing
of Drilled Holes--Anthracite Refuse Removal/89.141(d)(4)(ii)--
Subsidence Control: Underground Mines
Pennsylvania is proposing to require that gas and oil wells be
sealed in accordance with the Oil and Gas Act (58 P.S.sections 601.101-
601.605). The Federal regulations at 30 CFR 816/817.13 do not contain
this requirement. However, the Director finds that the proposed
revisions are in addition to those requirements, and are therefore not
inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30
U.S.C. 1255(b)), and 30 CFR 730.11(b).
6. 89.144(a)--Public Notice: Underground Mines and Coal Preparation
Facilities
Pennsylvania is proposing to require that coal operators provide
the Department with a copy of the required notice of intention to mine
and return receipt or, if applicable, evidence that the notice was not
accepted or deliverable. The Federal regulations contain no direct
counterpart requirement. However, the Director finds that the proposed
revision is consistent with the Federal regulations at 30 CFR 817.122,
which requires notification to all owners of surface property overlying
the proposed underground mining operation of the intent to mine.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
[[Page 60176]]
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 (District 1)
and the U.S. Department of the Interior, Fish and Wildlife Service
concurred without comment. The U.S. Department of Labor, Mine Safety
and Health Administration (District 2) commented that while
Pennsylvania's proposed regulations do not permit impounding structures
constructed of coal refuse or used to impound coal refuse to be
retained permanently, 30 CFR Parts 75 and 77 do not have the same
prohibition. The Director notes that Pennsylvania's revisions comply
with and are no less effective than the Federal regulations at 30 CFR
816/817.84(b)(1).
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.).
On January 25, 1996, OSM solicited EPA's concurrence with the
proposed amendment. On March 14, 1996, EPA gave its written concurrence
(Administrative Record No. PA-838.08).
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP. None were received.
V. Director's Decision
Based on the above findings, the Director approves with certain
exceptions and additional requirements, the proposed amendment as
submitted by Pennsylvania on January 23, 1996. He is also requiring
that Pennsylvania amend its program to make the following changes. At
86.5(m), Pennsylvania must provide for notification of the operator and
any intervenors of a decision not to revoke an exemption. At 86.55(j),
Pennsylvania must require that any applications for permit renewal be
submitted at least 120 days before the permit expiration date. At
87.108(c), 89.24(c), and 90.108(c), Pennsylvania must require, without
exception, that sedimentation ponds cannot be removed sooner than two
years after the last augmented seeding. If sedimentation ponds are not
always deemed to be the best technology currently available, any
``other treatment facilities'' used must also remain in place for at
least two years after the last augmented seeding. At 88.105(c),
88.201(c), and 88.305(c), Pennsylvania must require additional
hydrologic testing whenever the PHC determination indicates that
adverse impacts may occur to the hydrologic balance, or that acid-
forming or toxic-forming material is present that may result in the
contamination of surface or ground water supplies. At 88.321 and
90.133, Pennsylvania must require that no noncoal waste be deposited in
a coal refuse pile or impounding structure. Pennsylvania must also
provide counterparts to the Federal regulations at 30 CFR
702.15(d),(e),(f), and 702.17(c)(2), and (c)(3). The Federal
regulations require that authorized representatives have the right to
enter operations conducting incidental coal extraction and that
administrative reviews of the State's determinations be provided.
The Director is removing the following required amendments at 30
CFR 938.16 because they have been satisfied by revisions contained in
this submission.
Required Amendment Removed/State Regulation That Satisfies
Requirement
30 CFR 938.16(g).......................... 86/87.1.
30 CFR 938.16(l).......................... 86.156(b).
30 CFR 938.16(q).......................... 86.182(e).
30 CFR 938.16(s).......................... 87.73(c)(1).
30 CFR 938.16(t).......................... 87.112(b)(1), 89.101(a).
30 CFR 938.16(u).......................... 87.112(b)(1), 90.112(b)(1).
30 CFR 938.16(v).......................... 87.112(f), 89.101(d),
90.112(f).
30 CFR 938.16(x).......................... 87.127(e)(2).
30 CFR 938.16(y).......................... 87.127(h).
30 CFR 938.16(z).......................... 87.127(j).
30 CFR 938.16(aa)......................... 87.127(n).
30 CFR 938.16(bb)......................... 87.131(n).
30 CFR 938.16(cc)......................... 87.135(a).
30 CFR 938.16(dd)......................... 87.138(c), 89.82(d),
90.150(c).
30 CFR 938.16(ee)......................... 88.24(b)(4)(i).
30 CFR 938.16(ff)......................... 88.61(b)(1).
30 CFR 938.16(gg)......................... 88.491(j).
30 CFR 938.16(ii)......................... 89.34(a)(2)(ii).
30 CFR 938.16(jj)......................... 86.172(b).
30 CFR 938.16(ddd)........................ 86.133(g).
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
938.16 that, within 60 days of the publication of this final rule,
Pennsylvania must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Pennsylvania's established administrative or
legislative procedures.
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.
Effect of Director's Decisions
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Pennsylvania program, the Director will recognize only
the statutes, regulations other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Pennsylvania of only
such provisions.
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
[[Page 60177]]
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: October 15, 1997.
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 Citation/
date publication description
------------------------------------------------------------------------
* * * * *
January 23, 1995................ November 7, 1997.. Chapters 86
through 90.
------------------------------------------------------------------------
3. Section 938.16 is amended by removing and reserving paragraphs
(g), (l), (q), (s), (t), (u), (v), (x), (y), (z), (aa), (bb), (cc),
(dd), (ee), (ff), (gg), (ii), (jj), and (ddd); and by adding paragraphs
(ppp) through (uuu) to read as follows:
Sec. 938.16 Required regulatory program amendments.
* * * * *
(ppp) By January 6, 1998, Pennsylvania shall submit a proposed
amendment to section 86.5(m), or otherwise amend its program, to
provide for notification of the operator and any intervenors of a
decision not to revoke an exemption.
(qqq) By January 6, 1998, Pennsylvania shall submit a proposed
amendment to subsection 86.55(j), or otherwise amend its program, to
require that any applications for permit renewal be submitted at least
120 days before the permit expiration date.
(rrr) By January 6, 1998, Pennsylvania shall submit a proposed
amendment to subsections 87.108(c), 89.24(c), and 90.108(c), or
otherwise amend its program, to require, without exception, that
sedimentation ponds cannot be removed sooner than two years after the
last augmented seeding.
(sss) By January 6, 1998, Pennsylvania shall submit proposed
amendments to subsections 88.105(c), 88.201(c) and 88.305(c), or
otherwise amend its program, to require additional hydrologic testing
whenever the PHC determination indicates that adverse impacts may occur
to the hydrologic balance, or that acid-forming or toxic-forming
material is present that may result in the contamination of surface or
ground water supplies.
(ttt) By January 6, 1998, Pennsylvania shall submit a proposed
amendment to sections 88.321 and 90.133, or otherwise amend its
program, to require that no noncoal waste be deposited in a coal refuse
pile or impounding structure.
(uuu) By January 6, 1998, Pennsylvania shall submit a proposed
amendment to provide counterparts to the Federal regulations at 30 CFR
702.15 (d), (e), (f) and 702.17 (c)(2) and (c)(3) to require that
authorized representatives have the right to enter operations
conducting incidental coal extraction and that administrative reviews
of the State's determinations be conducted.
[FR Doc. 97-29475 Filed 11-6-97; 8:45 am]
BILLING CODE 4310-05-M
