[Federal Register Volume 63, Number 77 (Wednesday, April 22, 1998)]
[Rules and Regulations]
[Pages 19802-19821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10632]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-112-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendments.
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SUMMARY: OSM is approving, with certain exceptions, a proposed
amendment to the Pennsylvania permanent regulatory program (hereinafter
referred to as the Pennsylvania program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The amendment revises the
Pennsylvania program to incorporate changes made by Pennsylvania House
Bill 1075 and subsequent Pennsylvania law Act 1994-114. The amendment
is intended to provide special authorization for coal refuse disposal
in areas previously affected by mining which contain pollutional
discharges.
EFFECTIVE DATE: April 22, 1998.
FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Office of
Surface Mining Reclamation and Enforcement, Harrisburg Field Office,
Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market
Streets, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Pennsylvania Program
On July 31, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. Background information on the
Pennsylvania program including the Secretary's findings, the
disposition of comments, and a detailed explanation of the conditions
of approval of the Pennsylvania program can be found in the July 30,
1982, Federal Register (47 FR 33050). Subsequent actions concerning the
conditions of approval and program amendments are identified at 30 CFR
938.11, 938.12, 938.15 and 938.16.
II. Submission of the Amendment
By letter dated September 14, 1995 (Administrative Record Number PA
837.01), Pennsylvania submitted an amendment to the Pennsylvania
program. The amending language is contained in Pennsylvania House Bill
1075 and was enacted into Pennsylvania law as Act 1994-124. The
amendments change Pennsylvania's Coal Refuse Disposal Act (of September
24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980 (P.L.
807, No. 154)) to provide for authorization for refuse disposal in
areas previously affected by mining which contain pollutional
[[Page 19803]]
discharges. The proposed amendments are modeled after Pennsylvania's
approved program rules at Chapter 87, Subchapter F. (87.201) and
Chapter 88, Subchapter G. (88.501). These subchapters allow previously
affected sites with pollutional discharges to be reaffected provided
the pollution abatement plan will result in a reduction of the baseline
pollution load and represents best technology economically achievable.
The proposed amendment was published in the October 16, 1995,
Federal Register (60 FR 53565), and in the same notice, OSM opened the
public comment period and provided opportunity for a public hearing on
the adequacy of the proposed amendment. The comment period closed on
November 15, 1995. A public hearing was held on December 5, 1995.
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 to the Pennsylvania program.
The standards by which the proposed amendments will be evaluated
are as follows. Section 503(a) of SMCRA provides that State regulatory
program laws must be in accordance with the requirements of SMCRA, and
that State regulatory program rules must be consistent with the
regulations issued pursuant to SMCRA. The terms ``in accordance with''
and ``consistent with'' are defined at 30 CFR 730.5. With regard to
SMCRA, the proposed State laws and rules must be no less stringent
than, meet the minimum requirements of, and include all applicable
provisions of SMCRA. With regard to the implementing Federal
regulations, the proposed State laws and rules must be no less
effective than the Federal regulations in meeting the requirements of
SMCRA. The Director's findings are discussed below.
1. Section 1 Findings and Declaration of Policy
This section is amended by adding policy statements that clarify
Pennsylvania's rationale for authorizing coal refuse disposal on areas
previously affected by mining which contain pollutional discharges.
While there is no direct Federal counterpart to the added policy
statements regarding coal refuse disposal, the Director finds that
Pennsylvania's rationale for encouraging coal mining activities that
will result in the improvement of previously mined areas with
preexisting pollutional discharges is reasonable and not inconsistent
with SMCRA at section 102 concerning the purposes of SMCRA.
2. Section 3 Definitions
This section is amended to provide definitions for the following
terms: ``Abatement plan,'' ``Actual improvement,'' ``Baseline pollution
load,'' ``Best technology,'' ``Coal refuse disposal activities,''
``Pollution abatement area,'' and ``Public recreational impoundment.''
Two of these definitions, ``Coal refuse disposal activities'' and
``Public recreational impoundment,'' are new to the Pennsylvania
program, while the others are similar to approved definitions at
Chapters 87.202 and 88.502 concerning remining areas with pollutional
discharges. The proposed definitions will apply to section 6.2 of
Pennsylvania's Act 1994-114.
``Abatement plan'' is defined as any individual technique or
combination of techniques, the implementation of which will result in
reduction of the baseline pollution load. The Director finds that this
language is identical in substance to the definition of ``abatement
plan'' contained in 25 Pa. Code Secs. 87.202 and 88.502, which were
approved by OSM as part of Pennsylvania's standards for treatment of
preexisting discharges on remined areas. See 51 FR 5997, February 19,
1986.
``Actual improvement'' is defined as the reduction of the baseline
pollution load resulting from the implementation of the approved
abatement plan except that any reduction of the baseline pollution load
achieved by water treatment may not be considered as actual
improvement: Provided, however, that treatment approved by the
department of the coal refuse before, during or after placement in the
coal refuse disposal area shall not be considered to be water
treatment. This definition, except for the proviso which is new, is
identical in substance to definitions at 25 Pa. Code Secs. 87.202 and
88.502, which were approved by OSM as part of Pennsylvania's standards
for treatment for preexisting discharges on remined areas. See 51 FR
5997, February 19, 1986.
``Baseline pollution load'' is defined to mean the characterization
of the pollutional material being discharged from or on the pollution
abatement area, described in terms of mass discharge for each parameter
deemed relevant by Pennsylvania, including seasonal variations and
variations in response to precipitation events. This proposal is
identical in substance to the definition of ``baseline pollution load''
found at 25 Pa. Code Secs. 87.202 and 88.502, which was approved by OSM
as part of Pennsylvania's standards for treatment of preexisting
discharges on remined areas. See 51 FR 5997, February 19, 1986.
``Best technology'' is defined to mean measures and practices which
will abate or ameliorate, to the maximum extent possible, discharges
from or on the pollution abatement area. This proposal is identical in
substance to the definition of ``best technology'' found at 25 Pa. Code
Secs. 87.202 and 88.502, which was approved by OSM as part of
Pennsylvania's standards for treatment of preexisting discharges on
remined areas. See 51 FR 5997, February 19, 1986.
``Coal refuse disposal activities'' is defined to mean the storage,
dumping or disposal of any waste coal, rock, shale, slurry, culm, gob,
boney, slate, clay, underground development wastes, coal processing
wastes, excess soil and related materials, associated with or near a
coal seam, which are either brought above ground or otherwise removed
from a coal mine in the process of mining coal or which are separated
from coal during the cleaning or preparation operations. The term shall
not include the removal or storage or overburden from surface mining
activities.
The proposed State definition includes two terms, ``coal mine
waste'' and ``underground development waste,'' which are defined in the
Federal regulations at 30 CFR 701.5. The Federal regulations define
``underground development waste'' to include waste-rock, mixtures of
coal, shale, claystone, siltstone, sandstone, limestone, or related
materials that are excavated, moved and disposed of from underground
workings in connection with underground mining activities. The proposed
State definition concerns the disposal of materials similar to those
listed in the Federal definition of underground development waste. The
Federal regulations define ``coal processing waste'' as ``earth
materials which are separated and wasted from the product coal during
cleaning, concentrating, or other processing or preparation of coal.''
The State also limits the definition of ``coal refuse disposal
activities'' by clarifying that overburden from surface mining
activities is not included. That is, only materials separated from coal
during cleaning or preparation and materials derived from underground
workings are included under the definition of coal refuse disposal
activities. The proposed definition is unclear, however, in its use of
the term ``excess soil and related materials.''
[[Page 19804]]
The remaining terms of the definition do not have Federal
counterparts, but the Director finds that this proposed definition is
not inconsistent with SMCRA and the Federal regulations in general, and
is consistent with the Federal definitions of ``coal mine waste'' and
``underground development waste,'' except for the reference to ``excess
soil and related materials.'' Therefore, the Director is requiring that
Pennsylvania further amend its program to clarify the meaning of the
term ``excess soil and related materials.''
``Pollution abatement area'' means that part of the permit area
which is causing or contributing to the baseline pollution load, which
shall include adjacent and nearby areas that must be affected to bring
about significant improvement of the baseline pollution load and which
may include the immediate location of the discharges.
This proposed definition is identical in substance to the
definition of ``pollution abatement area'' found at 25 Pa. Code
Secs. 87.202 and 88.502, which was approved by OSM as part of
Pennsylvania's standards for treatment of preexisting discharges on
remined areas. See 51 FR 5997, February 19, 1986.
``Public recreational impoundment'' is defined to mean a closed
basin, naturally formed or artificially built, which is dammed or
excavated for the retention of water and which is owned, rented or
leased by the Federal Government, the Commonwealth or a political
subdivision of the Commonwealth and which is used for swimming,
boating, water skiing, hunting, fishing, skating or other similar
activities. There is no direct Federal counterpart to this definition.
The Director finds, however, that the proposed definition is consistent
with the definition of ``impoundment'' contained in the Federal
regulations at 30 CFR 701.5, and is not inconsistent with any other
provision of SMCRA or the Federal regulations.
3. Section 3.2 Powers and Duties of the Environmental Quality Board
New subsection (b) requires Pennsylvania's Environmental Quality
Board (EQB) to enact regulations to implement Section 6.2 (concerning
coal refuse disposal activities on previously affected areas). Proposed
Section 3.2(b) also provides that the new regulations to be developed
to implement Section 6.2 must be consistent with the requirements of
section 301(p) of the Federal Water Pollution Control Act and the State
remining regulations for surface coal mining activities.
To the extent that the proposed provision requires the EQB to adopt
implementing coal refuse disposal regulations, the Director finds the
proposed language to be consistent with SMCRA section 503(a)(7)
concerning authority of State regulatory programs to enact rules and
regulations to carry out the provisions of SMCRA.
The remaining portion of this provision, pertaining to the Federal
Water Pollution Control Act, is outside the scope of SMCRA and its
implementing regulations. Therefore, the Director's approval of this
remaining portion is unnecessary.
4. Section 4.1 Site Selection
This new section is added to establish the criteria for selecting
sites for coal refuse disposal. Subsection (a) provides that preferred
sites shall be used for coal refuse disposal unless the applicant
demonstrates to the regulatory authority that another site is more
suitable based on engineering, geology, economics, transportation
systems and social factors and is not adverse to the public interest.
Where, however, the adverse environmental impacts of the preferred site
clearly outweigh the public benefits, the site shall not be considered
a preferred site. A preferred site is one of the following:
(1) A watershed polluted by acid mine drainage.
(2) A watershed containing an unreclaimed surface mine but which
has no mining discharge.
(3) A watershed containing an unreclaimed surface mine with
discharges that could be improved by the proposed coal refuse disposal
operation.
(4) Unreclaimed coal refuse disposal piles that could be improved
by the proposed coal refuse disposal operation.
(5) Other unreclaimed areas previously affected by mining
activities.
There is no direct Federal counterpart to the proposed State
language. However, the establishment of criteria to be used for
selecting sites for coal refuse disposal is not itself inconsistent
with the intent of SMCRA. SMCRA at sections 102(d) and 102(h)
encourages both sound coal mining operations that protect the
environment, and the reclamation of mined areas left without adequate
reclamation prior to the enactment of SMCRA on August 3, 1977. The
proposed criteria are reasonable, not inconsistent with the provisions
of SMCRA, and will likely encourage the reclamation of environmentally
damaged lands. The Director finds, therefore, that subsection (a) can
be approved.
Subsection (b) provides that, except if the site is a preferred
site, coal refuse disposal shall not occur on prime farmland; in sites
known to contain Federal threatened or endangered plants or animals or
State threatened or endangered animals; in watersheds designated as
exceptional value under 25 PA Code Chapter 93 (relating to water
quality standards); in areas hydrologically connected to and which
contribute at least five percent of the drainage to wetlands designated
as exceptional value under 25 Pa. Code Chapter 105 (relating to dam
safety and waterway management) unless a larger percentage is approved
by the department in consultation with the Pennsylvania Fish and Boat
Commission; and, in watersheds less than four square miles in area
upstream of the intake of public water supplies or the upstream limit
of public recreational impoundments.
By letter to the U.S. Environmental Protection Agency (EPA) dated
March 8, 1996 (Administrative Record Number PA 837.59), the State
explained the intent and limitations of proposed subsection 4.1(b). The
State explained that while section 4.1(b) does not prohibit coal refuse
disposal in sites known to contain Federal threatened or endangered
plants or animals, neither does it, by itself, authorize disposal in
such areas. That is, in order to receive authorization to conduct coal
refuse disposal operations on preferred sites (whether or not the sites
contain threatened or endangered species), a coal refuse disposal
permit must be obtained in accordance with the Pennsylvania program's
permitting process. All coal refuse disposal permit applications must
comply with Chapter 86 (regulations that apply to all coal mining
activities) and Chapter 90 (regulations that apply to coal refuse
disposal operations). One element of the permit review process, the
State letter explained, is that a determination must be made that the
coal refuse disposal activity will comply with Secs. 86.37(a)(15) and
90.150(d), regulations that require compliance with the Federal
Endangered Species Act.
Therefore, proposed subsection 4.1(b) categorically prohibits the
disposal of coal refuse on non-preferred sites known to contain Federal
threatened or endangered plants or animals or State threatened or
endangered animals. If the proposed coal refuse disposal site is a
preferred site, coal refuse disposal on the site may be possible, but
only after a finding by the State that the proposed coal refuse
disposal permit application is in compliance with Secs. 86.37(a)(15)
and 90.150(d) concerning endangered
[[Page 19805]]
species. These Pennsylvania program provisions are approved
counterparts to the Federal regulations at 30 CFR 773.15(c)(10) and
816/817.97(b), respectively.
By letter dated January 27, 1997 (Administrative Record Number PA-
837.61), PADEP submitted a copy of its revised Coal Refuse Disposal
Program Guidance. The draft guidance was subsequently revised on April
1, 1997 (Administrative Record Number PA-837.65). The guidance document
was finalized and made effective dated February 23, 1998
(Administrative Record Number PA-837.68). The Coal Refuse Disposal
Program Guidance is intended to further clarify what PADEP stated in
its March 8, 1996, letter concerning the implementation of proposed
Sec. 4.1(b). The Coal Refuse Disposal Program Guidance specifically
clarifies the intended implementation of Sec. 4.1(b) related to
threatened or endangered species. Pennsylvania's policy concerning the
implementation of Sec. 4.1(b) is as follows:
With respect to preferred sites, the Department will not approve
(via the site selection process) or permit (via the permitting
process) a site that is known or likely to contain federally listed
threatened or endangered species, unless the Department concludes
and the U.S. Fish and Wildlife Service concurs that the proposed
activity is not likely to adversely affect federally listed
threatened or endangered species or result in the ``take'' of
federally listed threatened or endangered species in violation of
Section 9 of the Endangered Species Act.
The Federal regulations at 30 CFR 816/817.97 concerning the
protection of fish and wildlife and related values, require the
minimization of disturbance and adverse impacts and enhancement where
practicable, and consultations with State and Federal fish and wildlife
resource agencies. For example, 30 CFR 816/817.97(b) provides that no
mining activity, including disposal of coal refuse, shall be conducted
which is likely to jeopardize the continued existence of listed
endangered or threatened species, or which is likely to result in the
destruction or adverse modification of designated critical habitats of
such species in violation of the Endangered Species Act of 1973, as
amended. 30 CFR 780.16/784.21(a)(1) provide that the scope and level of
detail of fish and wildlife information to be provided in the permit
application shall be determined by the regulatory authority in
consultation with State and Federal agencies with responsibilities for
fish and wildlife.
By letter dated July 18, 1996 (Administrative Record Number PA
837.60) the U.S. Fish and Wildlife Service (USFWS) stated that OSM has
received no incidental take statement from the USFWS exempting OSM from
the ``take'' prohibitions of Sec. 9 of the Endangered Species Act.
USFWS also noted that no consultations on Pennsylvania's coal mining
program, including the delegation of the program to the State by OSM,
or amendments to the State's mining law or regulations, have occurred
between USFWS and OSM. USFWS concluded, therefore, that there are no
legal means by which OSM or the State can issue a mining permit which
would allow for the take of a Federally listed species. USFWS further
concluded that both OSM and the State must interpret the permitting
provision in Pennsylvania's mining regulations at 25 Pa. Code
Sec. 86.37(a)(15) (relating to Federally listed species) to mean that
no proposed activity may be permitted by the State which ``may affect''
threatened or endangered species, or result in the ``take'' of
threatened or endangered species in violation of Sec. 9 of the
Endangered Species Act.
However, by letter dated April 7, 1998 (Administrative Record
Number PA 837.70) the USFWS concluded, after informal consultations
with OSM, Pennsylvania, and the EPA, and after reviewing the State's
Coal Refuse Disposal Program Guidance, that OSM approval of the
amendments which are the subject of this rulemaking is not likely to
adversely affect federally listed species in Pennsylvania. See the
Agency Comments section below for a complete discussion of the USFWS
comments.
There is no direct Federal counterpart to the proposed provision.
However, based on the information discussed above (including the
State's Coal Refuse Disposal Guidance quoted above, and the concurrence
letter from the USFWS), the Director finds that the proposed site
selection provision at subsection 4.1(b) is not inconsistent with the
Federal regulations. The Director is approving subsection 4.1(b),
however, only to the following extent:
With respect to preferred sites, the State will not approve (via
the Site Selection process) or permit (via requirements in Chapters 86
or 90) a site that is known or likely to contain Federally listed
threatened or endangered species, unless the State demonstrates and the
USFWS concurs that the proposed activity is not likely to adversely
affect Federally listed threatened or endangered species or results in
the ``take'' of Federally listed or endangered species in violation of
Section 9 of the Endangered Species Act.
Further, Sec. 86.37(a)(15) of the Pennsylvania program concerning
criteria for permit approval or denial, shall still apply to all
permits, including coal refuse disposal operations on preferred sites.
Section 86.37(a)(15) provides the following:
A permit or revised permit application will not be approved
unless the application affirmatively demonstrates and the Department
finds, in writing, on the basis of the information in the
application or from information otherwise available, which is
documented in the approval, and made available to the applicant,
that the following exist: * * * (15) The proposed activities would
not affect the continued existence of endangered or threatened
species or result in the destruction or adverse modification of
their critical habitat as determined under the Endangered Species
Act of 1973 (16 U.S.C.A. Secs. 1531-1544).
In Sec. 86.37(a)(15), the phrase ``would not affect the continued
existence of'' will be interpreted by OSM and Pennsylvania to mean that
no mining activity may be permitted by the State which ``may affect''
threatened or endangered species unless the USFWS concurs that the
proposed activity is not likely to adversely affect Federally listed
threatened or endangered species or result in the ``take'' of Federally
listed threatened or endangered species in violation of Section 9 of
the Endangered Species Act.
The Director also notes that Sec. 87.50, Sec. 88.33, Sec. 89.74,
and Sec. 90.18 (concerning Fish and Wildlife Resource Information
related to Surface Mining; Anthracite Coal; Underground Mining of Coal
and Coal Preparation Facilities; and Coal Refuse Disposal,
respectively) still apply to all permits. In order to ensure that
accurate and adequate information is obtained to make permit decisions
with respect to Federally listed species, and to ensure compliance with
Sec. 86.37(a)(15) as interpreted above, review of certain permits by
USFWS is necessary to ensure that proposed permits (i.e., new, revised,
and renewal) are ``not likely to adversely affect'' threatened or
endangered species. At least annually, the USFWS will provide a listing
of those geographic areas (e.g., counties) in Pennsylvania which have
known or likely occurrences of Federally listed species. The PADEP
shall provide the USFWS's Pennsylvania Field Office with copies of
proposed mining permits for review as part of the normal permit review
process. The USFWS will provide preliminary endangered species comments
to the State, with copies of those comments to OSM. Prior to
publication in the Pennsylvania Bulletin, the State shall resolve with
the USFWS all concerns related to
[[Page 19806]]
threatened and endangered species to ensure that Federally listed
species are not likely to be adversely affected by the proposed action.
This review mechanism will allow for concurrent review by the natural
resource agencies, and will also minimize the number of permits to be
sent by the State and reviewed by the USFWS.
The Director also notes that Sec. 90.150 (c) and (d) concerning
protection of fish, wildlife, and related environmental values
continues to apply to all coal refuse disposal permits.
Subsection 4.1(c) requires the identification of alternative sites
that were considered within a one mile radius for new refuse disposal
areas that support existing mining. Where there are no preferred sites
within a one mile radius or where the applicant demonstrates that a
nonpreferred site is more suitable, the applicant shall demonstrate the
basis for the exclusion of other sites, and shall demonstrate the
suitability of the recommended site. Where the adverse environmental
impacts of the proposed site clearly outweigh the public benefits, the
State shall not approve the site.
The Federal regulations at 30 CFR 816/817.81 through 816/817.84
authorize the storage of coal mine waste (at 30 CFR 817.81 and 817.84)
on permitted areas. The storage of coal mine waste can result in large
storage structures of potentially hazardous materials, and the Federal
regulations provide specific provisions to assure that such storage
facilities are constructed in an environmentally sound manner.
Pennsylvania has, at Chapter 90, approved counterparts the Federal
regulations concerning the storage of coal refuse.
While the proposed Pennsylvania provision provides some incentive
to use preferred sites (i.e., environmentally damaged sites) that are
close to the existing mining operations, it does not require the use of
preferred sites. This is not inconsistent with the Federal regulations
if the State authorizes the placement of coal refuse storage piles on
permitted areas and in accordance with the rules at Chapter 90
concerning coal refuse disposal. There is nothing in the proposed State
language that nullifies the applicability of Chapter 90.
The proposed State provision requires a demonstration of site
suitability on the basis of several factors, including environmental
factors. Any such demonstration of environmental suitability must, of
course, consider factors such as protection of the hydrologic balance
and threatened or endangered species as required by the Federal
regulations and the counterpart Pennsylvania rules. The Director notes
that there is nothing in the proposed language that would negate the
applicability of these approved State rules.
Because Pennsylvania will continue to apply the provisions of 25
Pa. Code Chapter 90, which correspond to the Federal regulations at 30
CFR 816/817.81 through 816/817.84, to the disposal of all coal refuse,
the Director finds that the proposed revisions are not inconsistent
with SMCRA or the Federal regulations.
Subsection (d) requires the identification, within a 25 square mile
area (about a three-mile radius), of alternative sites that were
considered, and the basis for their consideration, as new refuse
disposal areas that support proposed new coal mining activity. Where
there are no preferred sites within the 25-square mile area or the
applicant demonstrates that a nonpreferred site is more suitable, this
provision requires a demonstration of the basis for the exclusion of
other sites, and a demonstration, based on reasonably available data,
that the proposed site is more suitable. Where the adverse
environmental impacts of the proposed site clearly outweigh the public
benefits, the site will not be approved.
There are no direct Federal counterparts to these proposed site
selection criteria. However, the Director finds that the proposed
revisions are not inconsistent with SMCRA or the Federal regulations,
since Pennsylvania will continue to apply the state counterparts to the
Federal requirements, at 30 CFR 816/817.81 through 816/817.84, to the
disposal of all coal refuse.
Subsection (e) provides that the alternatives analyses required by
section 4.1 satisfies the Dam Safety and Encroachments Act (November
26, 1978 (P.L. 1375, No. 325)). Since the Dam Safety and Encroachments
Act is outside the scope of the approved State program, the Director's
approval of subsection (e) is not necessary.
5. Section 6.1 Designating Areas Unsuitable for Coal Refuse Disposal
a. Subsection (h)(5) is amended to provide for a variance to the
100-foot stream buffer zone provision for coal refuse disposal. This
provision provides for a demonstration by the operator that the
variance will not result in significant adverse hydrologic or water
quality impacts. This provision also provides for public notice of the
requested variance, a public hearing concerning the application for a
variance, the consideration of comments submitted by the Pennsylvania
Fish and Boat Commission, and a written finding by the regulatory
authority that specifies the methods and techniques that must be
employed to prevent or mitigate adverse impacts.
While SMCRA itself is silent concerning stream buffer zones, a 100-
foot stream buffer zone and variances thereto are authorized at 30 CFR
816/817.57(a). Such stream buffer zone variances are authorized
provided: (1) The regulatory authority finds that the mining activities
will not cause or contribute to the violation of water quality
standards, and will not adversely affect the water quantity and quality
or other environmental resources of the stream; and (2) any stream
diversions will comply with 30 CFR 817.43 concerning diversions.
The criteria for the variance as proposed in subsection (h)(5) are
less effective than the criteria contained in 30 CFR 816/817.57.
Specifically, the proposed term, ``significant'' renders the proposal
less effective because it is a lesser standard than the Federal
requirement that the proposed activities will not cause or contribute
to the violation of water quality standards, and will not adversely
affect the water quantity and quality or other environmental resources
of the stream. That is, whereas the Federal regulations prohibit any
adverse effects on water quality and quantity, or on other
environmental resources of the stream, the proposed regulations only
prohibit ``significant'' adverse impacts.
Therefore, the Director is approving subsection (h)(5) only to the
extent that it authorizes stream buffer zone variances for coal refuse
disposal activities that will not cause or contribute to the violation
of water quality standards, and will not adversely affect the water
quantity and quality or other environmental resources of the stream. In
effect, the Director is not approving the term ``significant.'' Also,
the Director is requiring Pennsylvania to amend its program to
authorize stream buffer zone variances for coal refuse disposal
activities only where such activities will not cause or contribute to
the violation of applicable State or Federal water quality standards,
and will not adversely affect water quality and quantity, or other
environmental resources of the stream.
Subsection 6.1(h)(5) also requires public notice in two newspapers
of general circulation in the area of the proposed variance for two
successive weeks. This notice would be in addition to the public notice
required by Sec. 86.31 concerning public notices of filing of permit
applications, and is consistent
[[Page 19807]]
with the notice required for steam buffer zone variance applications,
at 25 Pa. Code Sec. 86.102(12).
The remaining portions of subsection 6.1(h)(5), pertaining to
written orders, public hearings, and consideration of comments by the
Pennsylvania Fish and Boat Commission, have no Federal counterparts.
However, since they are in addition to the public notice requirements
for stream buffer zone variance applications, at 26 Pa. Code
Sec. 86.102(12), the Director finds that they are not inconsistent with
SMCRA or the Federal regulations.
Subsection 6.1(i) is added to provide that all new coal refuse
disposal areas shall include a system to prevent adverse impacts to
surface and ground water and to prevent precipitation from contacting
the coal refuse.
The system for preventing precipitation from contacting the coal
refuse shall be installed: as phases of the coal refuse disposal area
reach capacity; as specified in the permit; when the operator
temporarily ceases operation of the coal refuse disposal area for a
period in excess of ninety days unless the State, for reasons of a
labor strike or business necessity, approves a longer period that shall
not exceed one year, or when the operator permanently ceases operation
of the coal refuse disposal area. The system shall allow for
revegetation and the prevention of erosion.
The proposed language requiring installation of a system to prevent
adverse impacts to surface and ground water and to prevent
precipitation from contacting the coal refuse has several counterparts
in SMCRA. For example, SMCRA Sec. 515(b)(11), concerning surface
disposal of mine wastes, provides that such wastes shall be placed in
designated areas and compacted in layers with the use of incombustible
and impervious materials if necessary. SMCRA Sec. 515(b)(10),
concerning protection of the hydrologic balance, requires the avoidance
of acid or other toxic mine drainage. SMCRA Sec. 515(b)(14) requires
that acid-forming and toxic-forming materials be treated or buried and
compacted or otherwise deposited in a manner designed to prevent
contamination of ground or surface waters.
Despite the fact that the proposed language allows delays in
completing the installation of the preventive system for reasons such
as strikes and business necessity, the State rules at Chapter 90
concerning coal refuse disposal operations continue to apply at all
times without delay. For example, Sec. 90.122 continues to provide that
coal refuse disposal areas shall be maintained to ensure that the
leachate and surface runoff from the permit area will not degrade
surface water or groundwater, or exceed the effluent limitations of
Sec. 90.102.
The Director finds the proposed language is consistent with SMCRA
Sec. 515(b)(10) concerning protection of the hydrologic balance, and 30
CFR 816/817.81(a)(1) concerning coal mine waste, protection of surface
and groundwater from leachate and surface water runoff.
6. Section 6.2 Coal Refuse Disposal Activities on Previously Affected
Areas
This is a new section. Subsection (a) provides that a special
authorization may be requested to engage in coal refuse disposal
activities on areas with preexisting pollutional discharges resulting
from previous mining. This subsection also provides that all of the
provisions of Pennsylvania's Coal Refuse Disposal Act (P.L. 1040, No.
318, September 24, 1968 and amended October 10, 1980 (P.L. 807. No.
154)) apply to special authorizations to conduct coal refuse disposal
activities on areas with preexisting pollutional discharges, except as
modified by this new section 6.2.
Subsection (b) provides the criteria under which the State may
grant a special authorization to engage in such coal refuse disposal.
The State may grant the special authorization if such special
authorization is part of:
(1) A permit issued under section 4 of the State's Coal Refuse
Disposal Act, except for permit transfers after the effective date of
this section, if the request is made at the time of submittal of a
permit application or prior to a State decision to issue or deny that
permit; or
(2) A permit revision pursuant to State regulation, but only if the
operator affirmatively demonstrates to the satisfaction of the State
that:
(i) The operator has discovered pollutional discharges within the
permit area that came into existence after its permit application was
approved;
(ii) The operator has not caused or contributed to the pollutional
discharges;
(iii) The proposed pollution abatement area is not hydrologically
connected to any area where coal refuse disposal activities have been
conducted pursuant to the permit;
(iv) The operator has not affected the proposed pollution abatement
area by coal refuse disposal activities; and
(v) The State has not granted a bonding authorization and coal
refuse disposal approval for the area.
Subsection (c) provides that the State may not grant a special
authorization unless the operator seeking a special authorization for
coal refuse disposal demonstrates all of the following:
(1) Neither the operator nor any officer, principal shareholder,
agent, partner, associate, parent corporation, subsidiary or affiliate,
sister corporation, contractor or subcontractor or any related party:
(i) Has any legal responsibility or liability as an operator under
section 315 of the Pennsylvania Act of June 22, 1937 (P.L. 1987, No.
394), known as ``The Clean Stream Law,'' for treating the pollutional
discharges from or on the proposed pollution abatement area; or
(ii) Has any statutory responsibility or liability for reclaiming
the proposed pollution abatement area.
(2) The proposed pollution abatement plan will result in a
significant reduction of the baseline pollution load and represents
best technology.
(3) The land within the proposed pollution abatement area can be
reclaimed.
(4) The coal refuse disposal activities on the proposed pollution
abatement area will not cause any additional surface water pollution or
groundwater degradation.
(5) The coal refuse disposal activities on permitted areas other
than the proposed pollution abatement area will not cause any surface
water pollution or groundwater degradation.
(6) There are one or more preexisting pollutional discharges from
or on the pollution abatement area.
(7) All requirements of Pennsylvania's Coal Refuse Disposal Control
Act and its implementing rules that are not inconsistent with section
6.2 have been met.
Subsection (d) provides that a special authorization may be denied
if granting it will or is likely to affect any legal responsibility or
liability for abating the pollutional discharges from or near the
pollution abatement area.
Subsection (e) provides that, except as specifically modified by
section 6.2, an operator requesting special authorization shall comply
with the permit application requirements of sections 4 and 5 of
Pennsylvania's currently approved Coal Refuse Disposal Act. The
operator must also provide additional information as required by the
State, relating to delineation of the pollution abatement area
(including the location of preexisting discharges), a description of
the hydrologic balance of the pollution abatement area (including water
quality and quantity monitoring data), and a
[[Page 19808]]
description of the abatement plan that represents best technology.
Subsection (f) provides that an operator who is granted a special
authorization shall implement the approved water quality and quantity
monitoring program and abatement plan, notify the State immediately
prior to the completion of each step of the abatement plan, and provide
progress reports to the State within 30 days after the completion of
each step of the abatement program in a manner described by the State.
The proposed special authorizations must comply with 40 CFR part
434 concerning performance standards for coal mining point source
discharges, and with Sec. 301(p) of the Federal Water Pollution Control
Act (33 U.S.C. 1311(p)) concerning modified permits for coal remining
operations. The effluent limitation standards will be identified
jointly by the EPA and the State on a permit-by-permit basis during the
development of the National Pollutant Discharge Elimination System
(NPDES) permit. The Director notes that the EPA has provided its
concurrence with the proposed amendments. See the Environmental
Protection Agency section below for a discussion of all EPA comments
and conditions on their approval of these amendments. The Director
finds that the proposed provisions at Section 6.2(a) through (f) have
no Federal counterparts. However, the Director finds that these
subsections are not inconsistent with SMCRA and can be approved,
provided that nothing in this approval authorizes the State to adopt
revised effluent limitations without approval by the EPA pursuant to
the Clean Water Act.
Subsection (g)(1) specifies that an operator granted special
authorization under section 6.2 shall be responsible for the treatment
of discharges in the following manner:
(i) Except for preexisting discharges which are not encountered
during coal refuse disposal activities or the implementation of the
abatement plan, the operator shall comply with all applicable
regulations of the State.
(ii) The operator shall treat preexisting discharges which are not
encountered during coal refuse disposal activities or implementation of
the abatement plan to meet the baseline pollution load when the
baseline pollution load is exceeded according to the following
schedule:
(A) Prior to final bond release, if the operator is in compliance
with the pollution abatement plan, where the State demonstrates that
the operator has caused the baseline pollution load to be exceeded; the
State shall have the burden of proving that the operator caused the
baseline pollution load to be exceeded;
(B) Prior to final bond release, if the operator is not in
compliance with the pollution abatement plan, unless the operator
affirmatively demonstrates that the reason for exceeding the baseline
pollution load is a cause other than the operator's coal refuse
disposal and abatement activities; and
(C) Subsequent to final bond release where the department
demonstrates that the operator has caused the baseline pollution load
to be exceeded; the department shall have the burden of proving that
the operator caused the baseline pollution load to be exceeded.
Subsection (g)(1)(ii)(A) allocates the burden of proof in a manner
which, at first blush, appears to be inconsistent with the Federal
regulations at 43 CFR 4.1171(b).
That Federal provision states that ``the ultimate burden of
persuasion shall rest with the applicant for review'' of any notice of
violation or cessation order. In addition, the legislative history of
SMCRA clearly states that the applicant for review of a notice or order
carries the ultimate burden of proof in the administrative review
proceeding. S. Rep. No. 128, 95th Cong., 1st Sess. 93 (1977). However,
this proposal shifts the burden of proof to the State Regulatory
Authority only where it issues an enforcement action for exceeding the
baseline pollution load for a preexisting, unencountered discharge. As
noted below, the EPA states in its concurrence that discharges
unaffected by and diverted around or piped under fills (not
encountered) would not be subject to the effluent guidelines at 40 CFR
part 434--subpart B. Because these preexisting unencountered discharges
are not subject to the requirements of 40 CFR part 434, they are
likewise not regulated under 30 CFR 816/817.42. Moreover, since it
proposes to regulate pollutional discharges and take enforcement
actions in a manner which is beyond the scope of, but not inconsistent
with, SMCRA, Pennsylvania is free to allocate the burden of proof in
administrative review proceedings of such enforcement actions in a
different manner than is provided for in 43 CFR 4.1171(b). Therefore,
subsection (g)(1)(ii)(A) can be approved.
Subsection (g)(2) provides that an allegation that the operator
caused the baseline pollution load to be exceeded under subclause (ii)
of clause (1) shall not prohibit the State from issuing, renewing or
amending the operator's license and permits or approving a bond release
until a final administrative determination has been made of such
alleged violation.
This subsection is no less stringent than SMCRA, so long as it
applies only to bond releases for permits other than the permit for
which the allegation of exceeding the baseline pollution load is
pending. If it were interpreted to allow bond release on the permit for
which the allegation is pending, subsection (g)(2) would be less
stringent than section 519(c)(3) of SMCRA, 30 U.S.C. 1269(c)(3), which
allows a final bond release only after all reclamation requirements of
SMCRA have been met. However, subsection 6.2(j)(3) of this amendment,
discussed below, prohibits final bond release of special authorization
permits where the operator has caused the baseline pollution load to be
exceeded after phase two of bond release, or within five years of the
discontinuance of treatment of a preexisting, unencountered discharge.
As such, any allegation that the operator caused the baseline pollution
load to be exceeded would, in accordance with subsection 6.2(j)(3),
prevent final bond release until the allegation is found to be untrue.
Therefore, subsection (g)(2) is approved to the extent that it applies
to final bond releases on permits other than the permit for which the
allegation that the baseline pollution load has been exceeded is
pending.
Subsection (g)(3) provides that, for this subsection, the term
``encountered'' shall not be construed to mean diversions of surface
water and shallow groundwater flow from areas undisturbed by the
implementation of the abatement plan which would otherwise drain into
the affected area, provided such diversions are designed, operated and
maintained in accordance with all applicable regulations of the State.
The Federal regulations at 30 CFR 816/817.42 require that mining
operations (including coal refuse disposal operations) comply with all
applicable State and Federal water quality laws and regulations and
with the effluent limitations for coal mining promulgated by EPA and
set forth in 40 CFR part 434. In order to approve Pennsylvania's
program amendment, OSM is required to obtain the concurrence of the EPA
in accordance with Sec. 503(b) of SMCRA. On September 20, 1995, OSM
requested the concurrence of the EPA with respect to those aspects of
the amendment which relate to air or water quality standards
promulgated under the authority of the Clean Water Act.
In a letter to OSM dated January 30, 1997 (Administrative Record
Number
[[Page 19809]]
PA-837.63), EPA conditionally concurred with the proposed Pennsylvania
amendment (see Environmental Protection Agency section below for a
complete discussion of EPA comments). The EPA provided five conditions
for its concurrence with the proposed amendments.
The EPA stated that to emphasize its concern over in-stream refuse
disposal, EPA concurrence is conditioned on the following: a.) PADEP
notification to EPA within 30 days of receipt of a joint SMCRA/NPDES
permit application for an in-stream refuse disposal project, and b.)
PADEP submittal to EPA of any joint SMCRA/NPDES application or permit
information which EPA specifically requests for an effective review.
The EPA stated that it will not object to PADEP issuance of an
NPDES permit for proposed in-stream refuse disposal facilities if (1)
compliance with Section 404 permit requirements is assured; (2) there
are no feasible alternatives to the coal refuse disposal, protection of
existing and designated downstream aquatic life and uses is assured,
and provisions are established for adequate mitigation.
Where discharges from refuse disposal activities would cause or
contribute to an exceedance of water quality standards, the NPDES
permit must contain water quality-based effluent limitations in
compliance with 40 CFR 122.44(d). Adequate monitoring and analysis of
the background water quality of the receiving stream must be done prior
to permit issuance and as part of the permit development process. The
EPA also stated that appropriate measures must be planned and
implemented for coal refuse disposal facilities which will prevent long
term acid drainage after closure.
The proposed statutory revisions adopted by the State comply with
EPA's determination regarding the treatment level required under
Federal law for unencountered discharges. The proposed standards
regarding treatment levels for discharges that are encountered are the
applicable regulations of the department (Sec. 90.102 Hydrologic
balance: water quality standards, effluent limitations and best
management practices). The Director notes that EPA review of all permit
applications related to in-stream refuse disposal and other permit
applications identified by the EPA will help assure that the proposed
coal refuse disposal operations in Pennsylvania will meet the
requirements of the Clean Water Act.
In addition, EPA recommended that proposed disposal of potentially
acidic refuse in valley fills on non-impacted (virgin) areas be subject
to reviews under individual Sec. 404 permits, rather than coverage
under the nationwide 404 permit.
The EPA has clarified that its understanding of Sec. 6.2(g)(1)(i)
is that coal refuse disposal operations that encounter a preexisting
discharge shall comply with the effluent limitations that will be
described in the NPDES permit, and which will be consistent with the
effluent guideline limitations for coal preparation plants and
associated areas as identified at 40 CFR Part 434--Subpart B. However,
the EPA notes that discharges unaffected by and diverted around or
piped under fills (not encountered) would not be subject to the
effluent guidelines at 40 CFR Part 434--Subpart B. Such discharges that
are not encountered shall meet the baseline pollution load standard as
defined at Sec. 3(1.3), and shall be treated in accordance with the
provisions at Sec. 6.2(g)(1)(ii). The EPA will, as part of its review
of all NPDES permits related to in-stream refuse disposal and other
permits, help assure that adequate monitoring and analysis of the
background water quality of the receiving stream will be done prior to
permit issuance. In addition, the EPA will be able to provide guidance
to the State to help assure the prevention of long term acid drainage
after closure.
The Director notes that the proposed provisions at
Sec. 6.2(g)(1)(ii) address the possibility that coal refuse disposal
operations (or implementation of the abatement plan) may cause the
baseline pollution load to be exceeded. As a consequence of exceeding
the baseline pollution load, the operator must comply with the proposed
provisions at Sec. 6.2(g). The Director recognizes the possibility that
such coal refuse disposal operations (or implementation of the
abatement plan) could affect a preexisting discharge to such a degree
that, in effect, the operations have ``encountered'' that discharge. In
such a circumstance (i.e., a discharge is encountered) an operator
would be required to treat the preexisting discharge not to baseline,
but to the applicable Pennsylvania water quality standards at Chapter
90.102. Proposed Sec. 6.2(g)(1)(i) provides that for preexisting
discharges that are encountered, the operator shall comply with all
applicable regulations of the department.
The Director also recognizes the difficulty and complexity of
making such a determination. By necessity, these determinations would
have to be made by the State on a case-by-case basis after a thorough
analysis of the circumstances and variables involved.
For example, under the proposed provisions, coal refuse may be
placed upon a preexisting coal refuse deposit with a pre-existing
pollutional discharge. Under such circumstances, the surface of the
pre-existing coal refuse deposit may be prepared (modified) to accept
deposition of a new coal refuse deposit so that the resulting deposit
is stable. The surface preparation activities on the pre-existing
deposit will not, of itself, be considered an ``encounter'' of the pre-
existing pollutional discharge.
During coal refuse disposal operations, pollutional discharges from
the pre-existing coal refuse deposit that is being buried under the new
coal refuse deposit, will be treated to baseline standards. Pollutional
discharges flowing from the newly placed coal refuse that lies above
the pre-existing coal refuse deposit will be subject to the State
effluent standards for disposal operations at Chapter 90, subchapter D
at 90.102. However, if during its inspections of the operations, it
becomes apparent to the State that pollutional waters from the new coal
refuse disposal fill are co-mingling with (i.e., encountering) the
pollutional discharge from the pre-existing coal refuse deposit, then
the State must apply the effluent limitations at Chapter 90, subchapter
D at 90.102 to the pre-existing discharge, as well as to the ``new''
discharge, rather than the baseline pollution load standard.
With the exceptions noted above for subsections (g)(1)(ii)(A) and
(g)(2), the Director finds that 6.2(g) is consistent with the
requirements of the Federal regulations at 30 CFR 816/817.42, provided
that nothing in this approval authorizes the State to adopt revised
effluent limitations without approval by the EPA pursuant to the Clean
Water Act.
Subsection (h) provides that an operator who is required to treat
preexisting discharges under subsection (g) will be allowed to
discontinue preexisting discharges when the operator demonstrates that
all of the conditions identified below have been satisfied.
(1) The baseline pollution load is no longer being exceeded as
shown by all ground and surface water monitoring;
(2) All requirements of the permit and the special authorization
have been or are being met;
(3) The operator has implemented each step of the abatement plan as
approved in the authorization; and
(4) The operator did not cause or allow any additional surface
water pollution or groundwater degradation
[[Page 19810]]
by reaffecting the pollution abatement area.
The Director notes that the proposed language at subsection 6.2(h)
could be misinterpreted. The proposed language in the first sentence of
this subsection which states that ``an operator required to treat
preexisting discharges under subsection (g) will be allowed to
discontinue treating . . .'' is unclear. Subsection 6.2(g) pertains to
both discharges that are encountered and those that are not
encountered, and the treatment standards are different for each.
The Director interprets the proposed language in the first sentence
of Sec. 6.2(h) to pertain only to subsection 6.2(g)(1)(ii), which
governs discharges that are not encountered. Therefore, the Director is
approving the proposed provision to the extent that it provides that an
operator may only discontinue treating preexisting discharges that are
not encountered when the operator demonstrates that the ``baseline''
pollution load is no longer being exceeded. Preexisting discharges that
are encountered must be treated to the State water quality standards at
Chapter 90, subchapter D at 90.102. Also, the Director is requiring
that the State further amend the Pennsylvania program to clarify that
Subsection 6.2(h) of the Coal Refuse Disposal Act pertains to
preexisting discharges that are not encountered.
Subsection (i) provides that if any condition set forth in
subsection 6.2(g) occurs after discontinuance of treatment under
subsection 6.2(h), the operator shall reinstitute treatment in
accordance with subsection 6.2(g). An operator who reinstitutes
treatment under this subsection shall be allowed to discontinue
treatment if the requirements of subsection 6.2(h) are met. This
provision will help assure that treatment will be restarted as
necessary to comply with the provisions of subsection 6.2(g).
To the extent that subsection 6.2(g), (h), and (i) are applied as
discussed in this finding, the Director finds that the proposed
provisions are not inconsistent with SMCRA, and are consistent with the
Federal regulations at 30 CFR 816/817.42. The Director is making this
finding with the understanding that the regulations to be developed by
Pennsylvania to implement Section 6.2 (as is required by the proposed
provisions at Section 3.2(b) of the Coal Refuse Disposal Act) will
clarify that preexisting discharges that are encountered must be
treated to the State effluent standards at Chapter 90, subchapter D at
90.102.
Subsection (j) provides that for pollution abatement areas subject
to a grant of special authorization under subsection 6.2, the operator
shall comply with all requirements relating to bonds set forth in
section 6 of Pennsylvania's existing Coal Refuse Disposal Act, except
that the criteria and schedule for release of bonds shall be as
follows:
(1) Up to fifty-percent of the amount of bond if the operator
demonstrates that:
(i) All activities were conducted in accordance with all applicable
requirements;
(ii) The operator has satisfactorily completed installing the water
impermeable cover, grading, planting and drainage control in accordance
with the approved abatement plan;
(iii) The operator has properly implemented each step of the
approved abatement plan;
(iv) The operator has not caused the baseline pollution load to be
exceeded for a period of a minimum of six months prior to the submittal
of a request for bond release and until the bond release is approved as
shown by all ground and surface water monitoring; and
(v) The operator has not caused or contributed to any ground or
surface water pollution by reaffecting the pollution abatement area.
(2) Up to an additional thirty-five percent of the amount of bond
if the operator demonstrates that:
(i) The operator has replaced topsoil, completed final grading and
achieved successful vegetation in accordance with the approved
reclamation plan;
(ii) The operator has not caused or contributed to any ground or
surface water pollution by reaffecting the pollution abatement area;
and
(iii) The operator has achieved the actual improvement of the
baseline pollution load described in the abatement plan and shown by
all ground and surface water monitoring for the period of time provided
in the abatement plan, or has achieved all of the following:
(A) At a minimum, the operator has not caused the baseline
pollution load to be exceeded as shown by all ground and surface water
monitoring for a period of twelve months from the date of initial bond
release under clause (1) or from the date of discontinuance of
treatment under subsection 6.2(h).
(B) The operator has conducted all measures provided in the
abatement plan and any additional measures specified by the State in
writing at the time of initial bond release under clause (1).
(C) The operator has caused aesthetic or other environmental
improvements and the elimination of public health and safety problems
by engaging in coal refuse disposal activities and reaffecting the
pollution abatement area.
(D) The operator has stabilized the pollution abatement area.
(3) The remaining amount of bond if the operator demonstrates that:
(i) The operator has not caused the baseline pollution load to be
exceeded from the time of bond release under clause (2) or, if
treatment has been initiated any time after release of the bond, for a
period of five years from the date of discontinuance of treatment under
subsection 6.2(h); and
(ii) The applicable liability period of section 6 has expired and
the operator has successfully completed all coal refuse disposal and
reclamation activities.
In accordance with the Federal regulations at 30 CFR 800.40, the
State's amendment provides for Phase I bond release after the
completion of refuse placement and grading; Phase II bond release after
revegation has been established; and Phase III bond release after the
expiration of the extended liability period.
In addition, the State's bond release provisions establish special
criteria to ensure that final bond release will not be granted unless
the operator at a minimum, is satisfying the effluent limitations
established by PADEP and approved by EPA for areas with preexisting
pollutional discharges, the operator has fully implemented the approved
abatement and reclamation plan and the operator has not caused
degradation of the baseline pollution load for a specified period of
time.
Therefore, the Director finds that proposed Sec. 6.2(j) provides
sufficient guarantees to ensure that final release of the bond will not
occur until the operation has satisfied the water quality standards
established by EPA and met all other reclamation requirements that
apply to any surface mining operation. The Director finds subsection
(j) to be no less effective than the Federal bond release standards at
30 CFR 800.40.
Subsection 6.2(k) sets forth the standard of successful
revegetation for reclamation plans approved as part of a special
authorization. The proposed standard of successful revegetation shall
be, as a minimum, the establishment of ground cover of living plants
not less than can be supported by the best available topsoil or other
suitable material in the reaffected area, shall not be less than ground
cover existing before disturbance and shall be adequate to control
erosion: Provided,
[[Page 19811]]
however, that the State may require that the standard of success comply
with section 5(c) and (e) of the current Coal Refuse Disposal Act where
it determines compliance is integral to the proposed pollution
abatement plan.
The Director finds proposed subsection (k) to be consistent with 30
CFR 816.115(b)(5), except as noted below. The Federal provision at
816.116(b)(5) provides the minimum revegetation standards for areas
that were previously disturbed by mining, and that were not reclaimed
to the requirements of Subchapter K (performance standards). The
proposed State provision, however, lacks the requirement that to
qualify for the revegetation standards, the area that was previously
disturbed by mining must not have been reclaimed to the State's
performance standards. To be no less effective than 816.116(b)(5), the
State needs to limit the application of the proposed standards to areas
that were previously disturbed by mining and that were not reclaimed to
the State reclamation standards.
Therefore, the Director is approving subsection (k) only to the
extent that it is applicable to areas previously disturbed by mining
that were not reclaimed to the standards of the Pennsylvania program.
In addition, the Director is requiring that the State further amend the
Pennsylvania program to be no less effective than 30 CFR 816.116(b)(5),
by limiting the application of the revegetation standards under
Subsection 6.2(k) of its Coal Refuse Disposal Act, to areas that were
previously disturbed by mining and that were not reclaimed to the
State's reclamation standards.
Subsection 6.2(l) provides that forfeited funds in the Surface
Mining Conservation and Reclamation Fund (Fund) shall be applied as a
credit to the bond required for a special authorization. In addition,
special authorization areas shall be exempt from permit reclamation
fees.
The Director notes that any forfeited Fund moneys to be used would
have originally come from a form of bond which is approved under the
Pennsylvania program. As such, the use of these forfeited Fund moneys
to ``rebond'' the site is not, per se, inconsistent with section 509 of
SMCRA, 30 U.S.C. 1259, and 30 CFR 800.12, pertaining to the requirement
of a performance bond and the acceptable forms thereof. However, if the
forfeited moneys for a particular site are sufficient to perform all
outstanding reclamation obligations for the site, then the site should
not be reclaimed to lesser reclamation standards under a special
authorization. For example, if the forfeited moneys in the Fund were
used to reclaim the site, and that reclamation would result in the
elimination of a pollutional discharge or revegetation of the site to
the level required to support the land use approved in the original
permit, then it would be inappropriate and a loss to the environment to
reclaim the site to lesser standards under special authorization. Under
these circumstances, the State should not approve the special
authorization.
The Director finds that the proposed provisions, concerning the use
of previously forfeited funds in establishing an appropriate bond
amount for a special authorization area, are not inconsistent with the
Federal forfeiture of bond provisions with the following exception. The
Director is approving 6.2(l) to the extent that the PADEP will not
approve a special authorization when such an authorization would result
in the site being reclaimed to lesser standards than could be achieved
if the forfeited bond moneys were used to reclaim the site to the
standards approved in the original permit under which the bond moneys
were forfeited. In addition, the Director is requiring that the State
further amend the Pennsylvania program to clarify that under Subsection
6.2(l) of its Coal Refuse Disposal Act, a special authorization for
coal refuse disposal operations will not be granted, when such an
authorization would result in the site being reclaimed to lesser
standards than could be achieved if the moneys paid into the Fund, as a
result of a prior forfeiture on the area, were used to reclaim the site
to the standards approved to the original permit under which the bond
moneys were forfeited.
Subsection (m) provides that an operator granted special
authorization under section 6.2 shall be permanently relieved from the
requirements of subsection 6.2(g) and the act of June 22, 1937 (P.L.
1987, No. 394), known as ``The Clean Streams Law,'' for all preexisting
discharges, identified in subsection 6.2(e), to the extent of the
baseline pollution load if the operator complies with the terms and
conditions of the pollution abatement plan and the baseline pollution
load has not been exceeded at the time of final bond release. Relief of
liability under this subsection shall not act or be construed to
relieve any person other than the operator granted special
authorization from liability for the preexisting discharge; nor shall
it be construed to relieve the operator granted special authorization
from liability under subsection 6.2(g)(1)(ii) if the baseline pollution
is exceeded.
As discussed above in the finding for Section 6.2(g), the Director
has determined that, with the exceptions noted for subsections
(g)(1)(ii)(A) and (g)(2), proposed Section 6.2(g) is consistent with
the requirements of the Federal regulations at 30 CFR 816/817.42
concerning water quality standards and effluent limitations. Under the
proposed provisions, an operator with a special authorization would be
required to comply with the Pennsylvania program performance standards
for all preexisting pollutional discharges encountered by their
operations and for all new pollutional discharges resulting from their
operations, and to treat preexisting pollutional discharges in
accordance with subsection 6.2(g). However, upon final bond release
under subsection 6.2(j), an operator granted a special authorization
would no longer be responsible for the preexisting pollutional
discharges identified in the special authorization. To qualify, the
operator with a special authorization must have complied with the terms
and conditions of the pollution abatement plan and the provisions of
Subsection 6.2(g) concerning the exceedence of the baseline pollution
load.
As further discussed in the finding for Subsection 6.2(g), the EPA
has concluded that discharges unaffected by and diverted around or
piped under fills (not encountered) would not be subject to the
effluent guidelines at 40 CFR part 434--subpart B. Such discharges that
are not encountered shall meet the baseline pollution load standard as
defined at Sec. 3(1.3), and shall be treated in accordance with the
provisions at Sec. 6.2(g)(1)(ii). The Director finds, therefore, that
the proposed subsection 6.2(m) is not inconsistent with the Federal
regulations at 30 CFR 816.42 concerning water quality standards and
effluent limitations.
7. Section 6.3 Experimental Practices
This new section sets forth criteria established to encourage
advances in coal refuse disposal practices and advance technology or
practices that will enhance environmental protection with respect to
coal refuse disposal activities, and authorizes the State to grant
permits approving experimental practices and demonstration projects.
The State may grant such permits if:
(1) The environmental protection provided will be potentially more
protective or at least as protective as required by this act and State
regulations;
[[Page 19812]]
(2) The coal refuse disposal activities approved under the permits
are not larger or more numerous than necessary to determine the
effectiveness and economic feasibility of the experimental practices or
demonstration projects; and
(3) The experimental practices or demonstration projects do not
reduce the protection afforded public health and safety below that
provided by this act and state regulations.
SMCRA section 711 provides that the regulatory authority may, with
approval by the Secretary, authorize departures in individual cases on
an experimental basis from the environmental protection performance
standards of sections 515 and 516 of SMCRA. The proposed provisions are
substantively identical to the provisions of SMCRA section 711
concerning experimental practices, except that they are silent
concerning the requirement to obtain approval from the Secretary for
each experimental practice, and do not clarify that such practices are
only approved as part of the normal permit approval process and only
for departures from the environmental protection performance standards.
The Director notes that the Pennsylvania rules developed to implement
these provisions must be consistent with and no less effective than the
Federal regulations at 30 CFR 785.13 concerning experimental practices
mining.
The Director is approving the proposed amendments concerning
experimental practices. In addition, the Director is requiring that the
State further amend the Pennsylvania program by adding implementing
rules no less effective than 30 CFR 785.13, and no less stringent than
SMCRA Section 711 and which clarify that experimental practices are
only approved as part of the normal permit approval process and only
for departures from the environmental protection performance standards,
and that each experimental practice receive the approval of the
Secretary.
8. Section 15.1 Suspension of Implementation of Certain Provisions
This new provision provides for the suspension of any provision of
Act 1994-114 found to be inconsistent with SMCRA or section 402 of the
Federal Water Pollution Control Act (FWPCA) (62 Stat. 1155, 33 U.S.C.
section 1251 et seq.). This new provision also provides that the State
shall develop a regulatory program and program amendments under SMCRA
and the FWPCA that are consistent with the requirements of section
301(p) of the FWPCA and the State remining regulations for surface
mining activities. The Director finds the proposed language to be
consistent with SMCRA section 503(a)(7) concerning State programs, and
with the Federal regulations at 30 CFR 732.17 concerning State program
amendments.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Pennsylvania program.
The U.S. Fish and Wildlife Service (USFWS) expressed concern that
the proposed amendments at Sec. 4.1(b) concerning site selection, may
lead to adverse impacts on Federally listed threatened or endangered
species in violation of the Federal Endangered Species Act of 1973 (87
Stat. 884, as amended; 16 U.S.C. 1531 et seq.). Specifically, the
concern is with language at Sec. 4.1(b) which states, ``Except if it is
a preferred site, coal refuse disposal shall not occur * * * in sites
known to contain Federal threatened or endangered plants or animals.''
USFWS interpreted the quoted language as allowing the disposal of coal
refuse on preferred sites known to contain Federally listed endangered
or threatened species. USFWS believed that such activity would
reasonably be expected to adversely affect threatened and endangered
species.
The USFWS comment stated that OSM has received no incidental take
statement from the USFWS exempting OSM from the ``take'' prohibitions
of Sec. 9 of the Endangered Species Act, 16 U.S.C. Sec. 1538. USFWS
also noted that no consultations on Pennsylvania's coal mining program,
including the delegation of the program to the State by OSM, or
amendments to the State's mining law or regulations, have occurred
between USFWS and OSM. USFWS concluded, therefore, that there are no
legal means by which OSM or the State can issue a mining permit which
would allow for the take of a Federally listed species. USFWS further
concluded that both OSM and the State must interpret the permitting
provision in Pennsylvania's mining regulations at 25 Pa. Code
Sec. 86.37(a)(15) (relating to Federally listed species) to mean that
no proposed activity may be permitted by the State which ``may affect''
threatened or endangered species, or result in the ``take'' of
threatened or endangered species in violation of Sec. 9 of the
Endangered Species Act.
In a letter dated March 8, 1996 (Administrative Record Number PA
837.59) the Pennsylvania Department of Environmental Protection (PADEP)
attempted to address the concerns raised regarding Sec. 4.1(b). PADEP
stated that Sec. 4.1(b) is part of a site selection process that is
separate and in addition to the approved permitting process.
That is, the proposed amendments must be read in concert with the
requirements of the existing Pennsylvania program. Specifically,
Sec. 4.1(b) prohibits refuse disposal on non preferred sites. The State
also contends that, while Sec. 4.1(b) does not prohibit nor does it by
itself authorize coal refuse disposal on preferred sites known to
contain Federally listed species, a proposed permit for coal refuse
disposal on preferred sites must also comply with all the applicable
permitting statutes and regulations. Consequently, coal refuse disposal
activities on preferred sites must comply with Sec. 86.37(a)(15) and
Sec. 90.150(d). Section 86.37(a)(15) specifically prohibits the PADEP
from issuing a permit to conduct coal mining activities if the proposed
activities would violate the Federal Endangered Species Act. Section
90.150(d) prohibits coal refuse disposal activities which are likely to
jeopardize the continued existence of endangered or threatened species,
or which are likely to destroy or adversely modify the designated
critical habitats of such endangered or threatened species.
Despite the State's assurances described above, the USFWS stated
that it does not agree that the PADEP's March 8, 1996, letter
adequately supports a conclusion that the proposed amendments are ``not
likely to adversely affect'' threatened or endangered species. As a
remedy, USFWS recommended that PADEP revise the State's Coal Refuse
Disposal Policy (see Finding 4 above). After reviewing the final Policy
Guidance document, USFWS agreed that the revised Policy, in conjunction
with OSM's interpretation of the Endangered Species Act protections
already contained in Pennsylvania's program, adequately clarify the
requirements to comply with the Federal Endangered Species Act and has
provided its concurrence with the proposed amendments (Administrative
Record Number PA-837.70).
In addition, however, the USFWS indicated that the site selection
criteria at Sec. 4.1 (c) and (d) are weak in that they too easily allow
a company to select non-preferred sites based on criteria such as
environmental, economic, technical, transportation, and social factors.
The result, USFWS predicted,
[[Page 19813]]
will be that using ``previously affected areas'' will be a rare
occurrence (Administrative Record Number PA-837.15).
In response, the Director notes that neither SMCRA nor the Federal
regulations contain site selection criteria which distinguish between
``preferred'' (previously mined) sites and ``alternate'' (undisturbed)
sites. So long as Pennsylvania also continues to apply its State
program counterparts to the Federal regulations governing coal refuse
disposal, and imposes these site selection criteria as additional
requirements, the criteria constitute more stringent environmental
controls, which are not inconsistent with SMCRA or the Federal
regulations. See SMCRA Section 505(b), 30 U.S.C. Sec. 1255(b).
The USFWS's Clean Water Act comments concern the proposed variance
to the 100-foot stream buffer zone provision at Sec. 6.1(h)(5). The
USFWS stated that the removal of the buffer zone would allow the use of
valley fills, and this would result in the violation of EPA's
antidegradation policy at 40 CFR 131.12(a)(1) which provides that
existing uses of the waters of the United States, and the water quality
necessary to protect that use, must be maintained and protected. The
USFWS asserted that valley fills will result in the elimination of
perennial streams with their aquatic communities and their nutrients
and food organisms. Therefore, the filling of valleys with coal refuse
would eliminate existing uses, thereby violating 40 CFR 131.12(a)(1).
In response, the Director notes that the EPA has provided its
conditional concurrence with this proposed amendment. Condition number
one is that EPA will review all applications for in-stream coal refuse
disposal projects. Condition number two is that EPA will not object to
the issuance of a permit for in-stream coal refuse disposal if, among
other things, the existing uses of the stream will be protected. See
EPA concurrence section, below.
The U.S. Department of Labor, Mine Safety and Health Administrative
(MSHA) commented on language at Sec. 1 of the proposed amendments
concerning the State's perception that a few large coal refuse disposal
areas would be better than numerous small coal refuse disposal sites.
MSHA stated agreement with the language as long as refuse piles are
constructed properly. The Director agrees that proper construction of
refuse piles is essential, and notes that nothing in the proposed
provisions limits the applicability of the approved State provisions
concerning the construction of coal refuse piles at Pa. Code Chapter
90.
Public Comments
A public comment period and opportunity to request a public hearing
was announced in the October 16, 1995, Federal Register (60 FR 53565).
The comment period closed on November 15, 1995. A public hearing was
held on December 5, 1995. The public comments received and the
Director's responses are presented below.
1. Definition of ``Coal Refuse Disposal Activities''
One commenter asserted that this definition is over broad and
appears to include excess spoil under the definition. In response, the
Director notes that the proposed definition specifically excludes the
removal or storage of overburden from surface mining operations. The
Federal regulations at 30 CFR 701.5 define ``spoil'' to mean overburden
from surface coal mining operations. Therefore, the proposed definition
is not inconsistent with the Federal definition.
The commenter also asserted that the definition is over broad in
that it would allow topsoil and overburden to be handled and disposed
of as coal refuse material, because the definition includes ``excess
soil and related materials.'' In response, the Director agrees that
neither overburden nor topsoil may be handled or disposed of as though
it were coal refuse, and notes that in Finding 2 above, he is requiring
the State to add regulations that clarify the meaning of the term
``excess soil and related materials.''
2. Threatened or Endangered Species
Numerous commenters object to the provision at Sec. 4.1(b) that
would allow coal refuse disposal in preferred sites that are known to
contain prime farmlands or Federal threatened or endangered plants or
animals or State threatened or endangered animals. The commenters
stated that the proposed provision would violate section 9 of the
Endangered Species Act, 16 U.S.C. 1538, and 30 CFR 817.97 concerning
protection of fish, wildlife, and related environmental values.
Neither 16 U.S.C. 1538 nor 30 CFR 817.97 address prime farmland, so
the Director disagrees with the commenter that coal refuse disposal on
prime farmlands violates those provisions
As discussed above in Finding 4, while Sec. 4.1(b) does not
prohibit coal refuse disposal in sites known to contain Federal
threatened or endangered species, it does not, by itself, authorize
disposal in such areas either. What Sec. 4.1(b) does, is allow for the
possibility of coal refuse disposal in such areas if all the
Pennsylvania program provisions concerning threatened or endangered
species are complied with. This includes compliance with Sec. 90.150(d)
which provides that coal refuse disposal activities may not be
conducted which are likely to jeopardize the continued existence of
threatened or endangered species. Moreover, in response to comments
from the USFWS, Pennsylvania has clarified the intent and
implementation of the proposed provision by revising its coal refuse
disposal policy. Specifically, the policy revisions clarify that coal
refuse disposal must meet the permitting requirements of 25 PA Code
Chapters 86 and 90. Both of these chapters have provisions that require
compliance with the Federal Endangered Species Act.
Finally, the Director notes that the USFWS now agrees that OSM
approval of this proposed amendment is not likely to adversely affect
Federally listed endangered and threatened species in Pennsylvania,
given the adoption of the amended State policy document and the
interpretation, set forth in Finding 4, of Pennsylvania's existing
program requirements pertaining to endangered and threatened species.
3. Variance to Stream Buffer Zones
Numerous commenters object to the provision at Sec. 6.1(h)(5) that
allows a variance to the 100-foot stream buffer zone provision.
Specifically, commenters stated that the variance violates the
regulations of the Clean Water Act at 40 CFR 131.12, which provides for
the protection of existing instream water uses and the water quality
necessary to protect existing uses, and 30 CFR 715.17(d), which allows
stream channel diversions only if they comply with both State and
Federal statutes and regulations.
The commenters also argue that OSM approval of Sec. 6.1(h)(5) would
violate Section 702(a) of SMCRA, 30 U.S.C. 1292(a), which requires that
SMCRA not be construed to supersede, amend, modify or repeal certain
other Federal statutes, including the Federal Water Pollution Control
Act.
In response, the Director notes that the Federal regulations at 30
CFR 816/817.57 authorize variances to stream buffer zones, and the
approved Pennsylvania rules at Sec. 86.102(12) currently contain
provisions authorizing variances to stream buffer zones. Therefore,
variances to the 100-foot buffer zone are permitted. Also, the EPA has
conditioned its concurrence with this amendment on numerous grounds,
[[Page 19814]]
including a requirement that it review any applications for in-stream
disposal of coal refuse. Furthermore, EPA has stated that it will
object to the issuance of any such permit application if it does not
provide for protection of the existing uses of the stream. See EPA
concurrence section, below.
However, as discussed in Finding 5, above, the Director is not
approving Sec. 6.1(h)(5) to the extent that it authorizes stream buffer
zones variances so long as the coal refuse disposal activities will not
cause ``significant'' adverse hydrologic or water quality impacts.
Also, the Director is requiring Pennsylvania to amend its program to
authorize stream buffer zone variances for coal refuse disposal
activities only where such activities will not cause or contribute to
the violation of applicable State or Federal water quality standards,
and will not adversely affect water quality and quantity, or other
environmental resources of the stream.
Some commenters also stated that the two-week public notice
requirement is less effective than the Federal four-week requirement at
30 CFR 773.13(a). The Director disagrees. As discussed in Finding 5
above, the proposed two-week newspaper notice is in addition to the
four-week newspaper notice required by the approved program at
Sec. 86.31(a).
One commenter asserted that allowing the placement of mine wastes
within 100 feet of streams would likely pose a violation of Sec. 404 of
the Clean Water Act, which prohibits fills in waters of the United
States, including wetlands. In response, the Director notes that the
EPA has provided its conditional concurrence with the proposed
amendment; See the EPA concurrence section below, Condition #1. Under
40 CFR Sec. 123.24(d)(6) and the 1991 Memorandum of Agreement (MOA)
between EPA and PADEP, EPA has the authority to review and comment on
draft National Pollutant Discharge Elimination System (NPDES) permits
for all coal mining activities, including refuse disposal. As part of
the MOA, EPA waived review of routine mining permit applications.
However, EPA will now review all permit applications that involve in-
stream refuse disposal, and other permit applications as identified by
the EPA to the PADEP.
The EPA review of all permit applications related to in-stream
refuse disposal and other permit applications identified by the EPA
will help assure that the proposed coal refuse disposal in Pennsylvania
will meet the requirements of the Clean Water Act. In addition, the EPA
condition will provide the EPA with the appropriate mechanism to
monitor situations where potentially acidic refuse might be placed in
valley fills on non-impacted areas. This will ensure that the EPA and
the U.S. Army Corps of Engineers will have an opportunity to determine
whether the proposed filling activity should be subject to reviews
under individual Section 404 permits (see EPA concurrence section
below, EPA Comment #2). The Director will continue to coordinate with
EPA to understand how EPA has implemented this condition of its
approval.
Numerous commenters stated that the practice of enclosing streams
in pipes under coal refuse valley fills would violate the Federal
provisions at 40 CFR 131.12 concerning the protection of existing
instream water uses and wetlands. In response, the Director notes that
the EPA has provided its conditional concurrence with the proposed
amendment. Condition number one provides for EPA review of all proposed
in-stream coal refuse disposal operations, while condition number two
provides that EPA will not object to the approval of any such operation
only if it is convinced that the existing uses of the stream will be
protected (see the EPA concurrence section, below).
4. Identification of Alternative Sites--Mileage Standard
One commenter noted that the siting of new coal refuse areas is
barely constrained under Sec. 4.1(c), since the applicant is allowed to
choose a site on the basis of factors entirely unrelated to the
geologic and hydrologic suitability of the site, including such factors
as ``economic'' and ``social'' factors. The commenter further stated
that any attempt to interject a cost-benefit analysis into the site
suitability requirements of 30 CFR 816 and 817 concerning disposal of
coal refuse and siting and construction of valley and head-of-hollow
fills must be rejected, to the extent that it attempts to waive any of
those requirements.
The Director agrees. To be no less effective than the Federal
requirements concerning coal mine waste disposal, the proposed siting
considerations (such as ``economic'' and ``social'' factors) must be in
addition to, rather than in place of the site suitability requirements
of 30 CFR parts 816 and 817. The proposed language at Sec. 4.1(c) does
not, however, prevent the application of the approved State provisions
that are counterparts to the Federal requirements concerning coal
refuse disposal. Therefore, the proposed site selection criteria do not
render the Pennsylvania program less effective than the Federal
regulations.
Several commenters stated that the one mile radius criterion does
little to encourage coal refuse disposal on preferred sites. In
response, the Director notes that neither SMCRA nor the Federal
regulations require coal refuse disposal operations to be placed on
``preferred'' sites, as that term is defined in Sec. 4.1(a) of this
amendment. Therefore, the site selection criteria contained in
Sec. 4.1(c) are applied in addition to Pennsylvania's State program
counterparts to the Federal coal refuse disposal regulations at 30 CFR
816/817.81 through 816/817.84. As supplementary measures, the site
selection criteria are not inconsistent with SMCRA or the Federal
regulations.
5. Preventing Adverse Impacts to Surface and Groundwater
One commenter stated that Sec. 6.1(i), which provides for a system
to prevent adverse impacts on the hydrologic balance, should be in
addition to any other specific design, location and operational
requirements contained in 30 CFR 816/817 relating to coal waste and
coal refuse disposal. The Director agrees. The Pennsylvania regulations
at Chapter 90, Subchapter D. continue to provide the performance
standards for coal refuse disposal, to which the proposed provision at
Subsection 6.1(i) adds an additional requirement.
The commenter further stated that there is no basis for deferring
reclamation and final cover on each lift of a coal refuse disposal area
for the extended period of time provided in Subsection 6.1(i), and to
the extent that toxic or acid-forming material is present, such
material must be immediately isolated from water to prevent AMD. The
Director understands the commenter's concern with this comment and
notes that despite the provision's authorization of a deferral in
completing the system to prevent adverse hydrologic impacts, as noted
above in Finding 5, the State regulations at Chapter 90 concerning coal
refuse disposal continue to apply, and without delay. For example,
Sec. 90.122 continues to provide that coal refuse disposal areas shall
be maintained to ensure that the leachate and surface runoff from the
permit area will not degrade surface water or groundwater, or exceed
the effluent limits of Sec. 90.102.
6. Alternate Effluent Limitations
One commenter stated that the proposed amendments (under Sec. 6.2)
are not consistent with the 1992 Energy Policy Act amendments, or the
alternate effluent limitations of Sec. 301(p) of the Clean Water Act,
because the amendments appear to inappropriately
[[Page 19815]]
authorize the disposal of coal refuse materials under relaxed water
quality standards and relaxed reclamation and bonding responsibility.
In response, the Director notes that as discussed above in Finding
6, the EPA has given its concurrence (with conditions) of the proposed
amendments. See the EPA section below for information on all EPA
comments and conditions. The proposed amendment distinguishes between
preexisting discharges that are encountered by the proposed operation,
and discharges that are not encountered. The EPA also recognizes such a
distinction. In its concurrence with the proposed amendments, the EPA
stated that the proposed amendments at Sec. 6.2(g)(1)(i) require that
discharges resulting from any refuse disposal activities, including
instream valley fills, must comply with PADEP regulations that include
the same effluent limitations as described in NPDES effluent guideline
regulations for coal preparation plants and associated areas (40 CFR
434--Subpart B). EPA also stated that ``[u]naffected water diverted
around or piped under fills would not be subject to effluent guideline
regulations under 40 CFR 434. That is, EPA is concurring with the
proposed State provisions at Sec. 6.2(g)(1)(ii) that authorize the
treatment of discharges that are not encountered to the ``baseline
pollution load'' and not to the State regulatory counterpart to 40 CFR
434.
Therefore, it is OSM's understanding that proposed
Sec. 6.2(g)(1)(ii) is not, as the commenter asserts, over broad and is
not inconsistent with Section 301(p) of the Clean Water Act.
EPA's involvement in the Pennsylvania permitting process for coal
refuse disposal operations will help assure compliance with the
provisions of the Clean Water Act.
The EPA will assist the State in identifying the appropriate
effluent limitation standards on a permit-by-permit basis during the
development of NPDES permit.
With regard to the commenter's reference to the 1992 Energy Policy
Act, the Director notes that the Pennsylvania amendment does not
propose to alter or diminish the ``land reclamation'' or bond release
standards imposed under SMCRA, with one exception. At subsection
6.2(k), Pennsylvania proposes to allow operators with special
authorizations to revegetate the sites merely by establishing ground
cover which is not less than that existing before disturbance, so long
as said ground cover is adequate to control erosion. As noted above in
Finding 6, the Director is approving subsection (k) only to the extent
that it is applicable to areas previously disturbed by mining that were
not reclaimed to the standards of the Pennsylvania program. With the
exception noted above, however, the Director has determined that the
proposed provisions are no less stringent than SMCRA and can be
approved, provided that nothing in the approval authorizes the State to
implement the provisions with respect to revised effluent limitations
without approval by the EPA pursuant to the Clean Water Act.
The commenter also stated that the term ``pollution abatement
area'' is vaguely defined and not consistent with the definition of
``coal remining operation'' (which is defined by the Clean Water Act to
be only that area on which coal mining was conducted before August 3,
1977). In response, the Director notes that the proposed definition of
``pollution abatement area'' is intended to identify areas that are
part of the permit area and which are causing or contributing to the
baseline pollution load. As stated above in Finding 6, the proposed
provisions must comply with 40 CFR part 434 concerning performance
standards for coal mining point source discharges, and with Sec. 301(p)
of the Federal Water Pollution Control Act (33 U.S.C. 1311(p))
concerning modified permits for coal remining operations. The effluent
limitation standards will be identified jointly by the EPA and the
State on a permit-by-permit basis during the development of the NPDES
permit. Also, since unencountered discharges are not within the purview
of Sec. 301(p) anyway, the proposed amendment is not inconsistent with
that provision of the Clean Water Act.
7. Perpetual Treatment of Acid Mine Drainage
One commenter asked how the coal industry will be responsible for
any perpetual treatment of acid mine drainage from poorly constructed
valley fill operations. In response, the Director notes that proposed
Section 6.2(g) contains the provisions governing the treatment of
discharges. Specifically, where a coal refuse disposal operation
creates a new discharge or encounters a preexisting discharge, the
refuse disposal operations shall comply with all applicable regulations
of the department. That includes complying with the approved State
effluent limitations, treatment requirements, and bond release
requirements.
Where coal refuse disposal operations cause the baseline pollution
load to be exceeded, the operator must treat that discharge according
to Sec. 6.2(g)(ii), (h), and (i). In addition to treating the
discharge, the bond release criteria at Sec. 6.2(j) must be met prior
to bond being released. Therefore, if the applicable effluent
limitation standards are not met, treatment is required and bond will
not be released.
8. Experimental Practices
One commenter stated that this provision is over broad, and would
allow an entirely different permit than would be issued under the
Pennsylvania program for other surface coal mining operations. The
commenter also stated that the provision should be disapproved because
it doesn't require approval by the Secretary of each experimental
practice.
In response, the Director disagrees that the proposed language is
over broad and represents an alternative permitting system. The
proposed language authorizes, under the Pennsylvania program, the
approval of permits which contain experimental practices. The
amendments do not authorize a separate permitting system as the
commenter suggests. While the proposed language is silent concerning
approval of experimental practices by the Secretary, the Director is
requiring, in Finding 7, that Secretarial approval be required by the
implementing regulations which Pennsylvania will subsequently develop
and submit for OSM approval.
9. Implementation Prior to Approval
Numerous commenters asserted that the amendments should be
disapproved because the State is currently reviewing and issuing
permits under the proposed statutes without approval of OSM. For
example, commenters assert that the State is inappropriately approving
variances to stream buffer zones to allow the implementation of valley
fills. In response, the Director notes that these comments do not bear
on the issue which must be decided in this rulemaking, which is whether
the proposed amendment is consistent with SMCRA and the Federal
regulations.
One commenter asserted that the amendments will encourage the use
of abandoned coal refuse areas and mine sites rather than the use of
virgin lands for coal refuse disposal operations. The use of such
abandoned mine lands will eliminate hazards, improve water quality and
enhance environmental conditions. In support of this assertion, the
commenter stated that Pennsylvania Act 158, to which Act 114 is
similar, provides incentives to remine abandoned mine lands, and has
resulted in 218 special authorization permits and the successful
reclamation of all but two
[[Page 19816]]
of those abandoned mine lands. The Director agrees that the proposed
amendments have the potential to result in the reclamation of the
environmentally damaged preferred sites.
10. Miscellaneous Comments
One commenter stated that Pennsylvania's rivers and streams belong
to its citizens, and that to allow for ``private concerns'' to damage
or destroy these resources seems to be an unconstitutional taking,
without just compensation. In response, the Director notes that only
``takings'' by governmental entities, rather than by ``private
concerns,'' are addressed by the United States Constitution.
Another commenter stated that this amendment does not prohibit the
placement of coal refuse on sites, preferred or otherwise, that contain
``state threatened plants.'' In response, the Director notes that the
Federal regulations at 30 CFR 8.16/817.97(b) prohibit surface mining
activities which are likely to jeopardize the continued existence of
endangered or threatened species listed by the Secretary of the
Interior, pursuant to the Federal Endangered Species Act of 1973. This
prohibition does not apply to species listed as endangered or
threatened under only the state counterpart to the Federal Endangered
Species Act.
Other commenters stated that the amendment violates the guarantee
of clean water provided for in the Pennsylvania State Constitution. The
Director notes that these comments are outside of the scope of this
rulemaking, since they are not relevant to the issue of whether the
proposed amendment is consistent with SMCRA or the Federal regulations.
Another commenter stated that the site selection provisions of
Sec. 4.1, which prohibit the disposal of coal refuse on prime farmland
unless it is on a preferred site, fail to define ``prime farmland.'' In
response, the Director notes that the Pennsylvania approved program
already defines prime farmland, at 25 Pa. Code Sec. 90.1, as ``lands
which are defined by the Secretary of the United States Department of
Agriculture in 7 CFR 657 (relating to prime and unique farmlands) and
which have been historically used for cropland * * *.''
A commenter asked if the proposed legislation provides terms to
deny a permit for various reasons. The commenter also asked if the
proposed legislation contains enough teeth to obtain compensation for
the failure to comply with provisions of a permit or whether the State
will be left with another debt from a failed permit. In response, the
Director notes that the proposed coal refuse disposal amendments are an
addition to the full requirements of the Pennsylvania program, and do
not replace those requirements. Therefore, the State's authority to
deny permits and withhold bond for applicable reasons still remains in
effect.
A commenter asked if the proposed legislation protects the entire
watershed from the headwaters to the end. In response, the Director
reiterates that all the applicable provisions of the approved
Pennsylvania program continue to apply to all permit decisions
concerning coal refuse disposal in addition to the proposed coal refuse
disposal provisions. In addition, the Director notes that both the EPA
and the USFWS have concurred with the proposed amendments. The EPA has
concurred with the proposed amendments upon specifying several
conditions that must be complied with concerning the protection of
downstream water quality. The USFWS has concurred with the proposed
amendments after obtaining assurance that the proposed provisions will
not negatively affect the protection of threatened and endangered
species as is currently provided for in the approved Pennsylvania
program. As discussed above in the findings, the Director has
determined that the proposed coal refuse disposal provisions are not
inconsistent with the provisions of SMCRA.
A commenter asked if the proposed provisions require the proper
testing practices to determine amount, type, kinds, and species of life
forms within the permitted area and adjacent areas, as well as the
testing to determine the content of the refuse material so that one
knows what is being buried. The commenter also asked if the proposed
amendments contain provisions to sufficiently protect high quality as
well as exceptional value rated streams, and if the proposed amendments
address non-point pollution as well as single-point pollution in these
permitted areas. In response, the Director reiterates that the proposed
provisions are in addition to and do not replace the provisions of the
approved Pennsylvania program. Therefore, the approved requirements for
the protection of fish and wildlife, the protection of the hydrologic
balance, the chemical analysis of the coal as well as strata above and
below the coal, and the construction of the coal refuse disposal site
continent to apply to coal refuse disposal areas.
A commenter asked if the proposed provisions requires the site to
be properly recovered within a set time and maintained for a sufficient
period of time. In response, the Director notes that coal refuse
disposal operations are subject to both bonding and bond release
requirements of the approved Pennsylvania program. While the proposed
amendment provide specific provisions for the release of bonds for
pollution abatement areas, those provisions continue to require time
requirements with which the operator must comply, including compliance
with the five-year liability period.
A commenter asked whether or not a permit should be obtained from
the EPA under Section 402 due to water quality degradation caused by a
valley fill operation. In response, the Director notes that the
proposed amendments do not alter Section 402's requirements. If a
permit is required under Section 402, it must still be obtained.
Environmental Protection Agency
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 September 20, 1995, OSM solicited EPA's concurrence and comments
on the proposed amendment (Administrative Record No. PA-837.02). EPA
responded on January 30, 1997 (Administrative Record No. PA 837.63).
The EPA provided the following comments and conditions on the proposed
amendments.
(a) Comments.
(1) The EPA commended the portion of the proposed amendment which
targets previously impacted areas for refuse disposal and requires
reclamation of these areas.
(2) The EPA recommended that proposed disposal of potentially
acidic refuse in valley fills on non-impacted areas be subject to
reviews under individual Section 404 U.S. Army Corps of Engineers
permit, rather than coverage under the nationwide 404 permit. Although
PADEP regulations require project reviews and alternatives analyses
similar to that of Section 404(b)(1) guidelines, individual 404 permit
reviews would allow more detailed and formal inputs by USFWS and the
EPA.
The Director concurs with this comment. The placement of
potentially acidic refuse in valley fill could lead to serious water
quality problems for downstream areas, and involvement of the USFWS and
EPA through Section
[[Page 19817]]
404 permitting would strengthen the review process. The U.S. Army Corps
of Engineers is responsible for the decision on whether a specific
filling activity falls under an individual permit or under a nationwide
404 permit. EPA must work with the PADEP through its NPDES program, and
with the U.S. Army Corps of Engineers through its joint
responsibilities under the Clean Water Act, to establish a system where
proposed disposal of potentially acidic refuse in valley fills on non-
impacted areas would be subject to reviews under individual Section 404
U.S. Army Corps of Engineers permits. The Director will continue to
coordinate with EPA to understand how EPA has implemented its
recommendation.
(3) The EPA supports a cautious review of the factors that can be
considered to decide if coal refuse disposal is to occur on
``alternative sites,'' rather than on previously impacted areas
(preferred sites), to assure that undue weight is not placed on
alternative sites at environmental expense.
The Director concurs with this comment. As stated above, PADEP is
commended for developing a process to encourage the placement of fills
on previously affected lands. However, under the program, the
applicant's search radius for preferred sites (previously impacted
lands) is controlled in a manner that limits the effectiveness of the
process. Process effectiveness is limited because the applicant only
must consider topographic conditions, transportation routes, and other
economic and environmental factors on a site specific basis up to a one
mile radius for existing operations and within a 25 square-mile area
(approximately a 2.8 mile radius) for new operations. As a result, the
search process may ignore sites outside the search radius that are
economically and technically sound, and environmentally superior to
areas inside the search radius. Therefore, OSM encourages PADEP to
consider proposing statutory changes to this amendment which will
increase the distance limitations, in order to increase the possibility
that ``preferred sites'' will be used for coal refuse disposal.
(4) The EPA stated that, based on its review, the proposed
amendment does not appear to lessen the protection provided by PADEP
regulations governing threatened and endangered species. However, the
EPA stated, the USFWS is the authority on such matters and has
indicated concern to the EPA that there may not be sufficient assurance
of protection in previously impacted areas. EPA stated that an
agreement between USFWS and OSM is necessary for resolution.
The Director acknowledges, and shares EPA's concern for threatened
and endangered species. As discussed above in Federal Agency comments,
the PADEP has addressed USFWS concerns by revising the State's coal
refuse disposal program guidance. In addition, on September 24, 1996,
the USFWS issued a Biological Opinion and Conference Report on surface
coal mining regulatory programs under SMCRA. In that report, the USFWS
stated that surface coal mining and reclamation operations conducted in
accordance with properly implemented Federal and State regulatory
programs under SMCRA are not likely to jeopardize the continued
existence of listed or proposed species, and are not likely to result
in the destruction or adverse modification of designated or proposed
critical habitats (Administrative Record Number PA 837.64). By letter
dated April 7, 1998, the USFWS concurred that the revised Pennsylvania
guidance document's provisions have satisfied USFWS concerns
(Administrative Record Number PA 837.70).
(5) The EPA stated that it supports stringent State reviews of
measures for preventing acid formation and seepage on refuse disposal
sites, and urged the prohibition of any project where the effectiveness
or such measures is questionable. The EPA stated that past refuse
disposal sites located in valley fills have resulted in acid seeps
after closure. This possibility in the future is a major concern EPA
has with the proposed amendment. The EPA also stated that recent
discussions with PADEP have indicated that improved preventive measures
will be required. Success of refuse disposal projects would depend on
incorporation of such preventive measures as alkaline addition, piping
streams under fills, capping fills to reduce infiltration, and
installing diversion drains around the fills. Long-term treatment bonds
also have been indicated by PADEP as a requirement in case preventive
measures prove not to be completely effective. The EPA further stated
that, according to PADEP, specifics on many decision factors affecting
water quality would be determined on a case-by-case basis, included in
policies or regulations, or a combination of these.
The Director concurs with the need for stringent State reviews of
measures for preventing acid formation and seepage on refuse disposal
sites. The Director notes that new section 6.1(i) provides that new
coal refuse disposal areas shall include a system to prevent adverse
impacts to surface and ground water and to prevent precipitation from
contacting the refuse. In addition, the Director notes (as discussed
below at ``Conditions'') that the EPA will be reviewing all
Pennsylvania permit applications that involve in-stream refuse
disposal, and other permit applications as identified by the EPA to the
PADEP. Such review of permit applications by the EPA should add an
additional measure of protection for preventing acid formation and
seepage on refuse disposal sites.
(6) The EPA urged the PADEP to evaluate potential cumulative
downstream impacts of proposed refuse disposal sites in combination
with mines and other facilities in affected watersheds. This could be
addressed as part of the Cumulative Hydrological Impact Assessment
required by SMCRA for mining-related permits.
The Director concurs with this comment and notes that the
Pennsylvania surface and underground coal mining regulations 25 Pa.
Code, Chapter 86.37(a)(4) require such a cumulative hydrological impact
assessment. Section 86.37(a)(4) provides that the regulatory authority
must find in writing that an assessment of the probable cumulative
impacts of all anticipated coal mining in the general area on the
hydrologic balance has been made by the PADEP. In addition, section
90.35 (concerning coal refuse disposal, protection of the hydrologic
balance) provides that an application must contain a determination of
the probable hydrologic consequences of the proposed coal refuse
disposal activities on the proposed permit area and adjacent area.
(7) The EPA recommended that the EPA and USFWS be invited to
contribute to any mitigation policy work group. The EPA stated that it
is the EPA's understanding that a mitigation policy for placement of
refuse in valley fills has not yet been determined by Pennsylvania.
Such mitigation should take into consideration the value and unspoiled
nature of running streams in areas not previously impacted and the
irreplaceable nature of such streams to Pennsylvania and the United
States.
The Director concurs with this comment, and encourages the State to
include the EPA and USFWS in any mitigation policy work group that is
created.
(b) Conditions.
(1) EPA stated that to emphasize its concern over in-stream refuse
disposal, its concurrence is conditioned on the following: (a) PADEP
notification to EPA within 30 days of receipt of a joint SMCRA/NPDES
permit application for
[[Page 19818]]
an in-stream refuse disposal project, and (b) PADEP submittal to EPA of
any joint SMCRA/NPDES application or permit information which EPA
specifically requests for an effective review. EPA also stated that it
will send a letter to PADEP identifying the categories of mining
related permits which EPA will request for review.
Under 40 CFR 123.24(d)(6) and 1991 Memorandum of Agreement (MOA)
between EPA and PADEP, EPA has the authority to review and comment on
draft National Pollutant Discharge Elimination System (NPDES) permits
for all coal mining activities, including refuse disposal. As part of
the MOA, EPA waived review of routine mining permit applications.
However, EPA will not review all permit applications that involve in-
stream refuse disposal, and other permit applications as identified by
the EPA to the PADEP.
The Director concurs with this condition, and believes that EPA
review of all permit applications related to in-stream refuse disposal
and other permit applications identified by the EPA will help assure
that the proposed coal refuse disposal in Pennsylvania will meet the
requirements of the Clean Water Act. In addition, the EPA condition
will provide the EPA with the appropriate mechanism to monitor
situations where potentially acidic refuse might be placed in valley
fills on non-impacted areas. This will ensure that the EPA and the U.S.
Army Corps of Engineers will have an opportunity to determine whether
the proposed filling activity should be subject to reviews under
individual Section 404 permits (see discussion under EPA comment number
2 above). The Director will continue to coordinate with EPA to
understand how EPA has implemented this condition of its approval.
(2) EPA identified the following conditions under which it will not
object to PADEP issuance of NPDES permits for proposed in-stream refuse
disposal facilities: (1) Compliance with Sec. 404 permit requirements;
(2) no feasible alternatives; (3) protection of existing and designated
downstream aquatic life and uses; and (4) adequate mitigation. Under 40
CFR 122.4(d), NPDES permits must comply with state water quality
standards, including non-degradation requirements. However, the EPA
recognizes that there may be certain circumstances which may limit
alternatives to in-stream refuse disposal facilities.
The Director concurs with these four conditions. The Director
recognizes that the responsibility for assuring compliance with these
conditions is with the EPA and the U.S. Army Corps of Engineers under
the applicable provisions of the Clean Water Act. The EPA will review
all proposals for in-stream disposal of coal refuse (see Condition #1
above). In addition, EPA will work with the PADEP through its NPDES
program and with the U.S. Army Corps of Engineers through its joint
responsibilities under the Clean Water Act, to establish a system where
proposed disposal of potentially acidic refuse in valley fills on non-
impacted areas would be subject to reviews under individual Sec. 404
permits (see Comment #2 above).
The Clean Water Act NPDES program and Sec. 404 permit program
contain the requirements for considering alternatives, establishing
mitigation, and protecting existing and designated aquatic life and
uses. As provided under Condition 1 above, EPA
review of NPDES permits will necessarily consider factors that could
affect existing uses of streams, such as the identification of the
potential for acid discharges, the feasibility of implementation
methods such as the piping of streams beneath fills, and the validity
of proposed measures to protect the existing uses of streams. Through
their joint responsibilities and authorities under Sec. 404, the U.S.
Army Corps of Engineers and EPA will be involved in the approval of in-
stream refuse disposal. Accordingly, OSM expects that EPA and the Corps
of Engineers will immediately notify OSM whenever any of these four
conditions has not been implemented. The Director will continue to
coordinate with EPA to understand how EPA has implemented its
conditions of approval.
(3) The EPA stated that OSM must undertake appropriate consultation
with the USFWS to ensure compliance with Sec. 7 of the Endangered
Species Act. Such consultation must be undertaken whenever disposal of
coal refuse is proposed in any previously impacted area containing
Federal threatened or endangered plants or animals, as allowed under
proposed Sec. 4.1(B) of the amendment. Under the Endangered Species
Act, the USFWS must provide approval and issue a requisite incidental
take permit whenever the proposed activities would affect the continued
existence of endangered or threatened species or result in the
destruction or adverse modification of their critical habitats.
The Director concurs with this condition and has, accordingly,
consulted with USFWS. As a consequence of these consultations, OSM has
asked the PADEP to amend their State Policy concerning coal refuse
disposal program guidance to address the USFWS concerns. The PADEP
subsequently amended the coal refuse disposal policy (Administrative
Record Number PA-837.68), and USFWS has agreed that the current State
policy guidance document concerning coal refuse disposal has satisfied
its concerns (Administrative Record Number PA-837.70).
(4) The EPA stated that where discharges from refuse disposal
activities would cause or contribute to an exceedence of water quality
standards, the NPDES permit must contain water quality-based effluent
limitations in compliance with 40 CFR 122.44(d). Adequate monitoring
and analysis of the background water quality of the receiving stream
must be done prior to permit issuance and as part of the permit
development process.
The Director concurs with this condition and notes, as discussed in
condition #1 above, that the EPA will review all proposed permit
applications that concern in-stream disposal of coal refuse, as well as
other selected permits identified by the EPA. Therefore, EPA will, as
part of its review, help assure that appropriate water quality
standards are properly set for every permit related to in-stream coal
refuse disposal.
The EPA also stated that it is its understanding that
Sec. 6.2(g)(1)(i) of the proposed amendment requires that discharges
resulting from any refuse disposal activities, including in-stream
valley fills, must comply with PADEP regulations that include the same
effluent limits as described in NPDES effluent guideline regulations
for coal preparation plants and associated areas (40 CFR part 434--
subpart B). The EPA stated that unaffected water diverted around or
piped under fills would not be subject to effluent guideline
regulations under 40 CFR part 434.
The Director concurs with this condition. In this condition, the
EPA is clarifying that EPA's understanding of Sec. 6.2(g)(1)(i) is that
coal refuse disposal operations that encounter a preexisting discharge
shall comply with the effluent limitations that will be described in
the NPDES permit, and which will be consistent with the effluent
guideline limitations for coal preparation plants and associated areas
as identified at 40 CFR part 434--subpart B. However, the EPA notes
that discharges unaffected by and diverted around or piped under fills
(not encountered) would not be subject to the effluent guidelines at 40
CFR part 434--subpart B. Such discharges that are not encountered shall
meet the baseline pollution load standard as defined at Sec. 3(1.3),
and shall be treated in accordance with the provisions at
Sec. 6.2(g)(1)(ii). The EPA will, as part of
[[Page 19819]]
its review of all NPDES permits related to in-stream refuse disposal
and other permits, help assure that adequate monitoring and analysis of
the background water quality of the receiving stream will be done prior
to permit issuance.
(5) The EPA stated that appropriate measures must be planned and
implemented for coal refuse disposal facilities which will prevent long
term acid drainage after closure.
The Director concurs with this condition. As discussed in condition
#1 above, the EPA will review all proposed permit applications that
concern in-stream disposal of coal refuse, as well as other selected
permits identified by the EPA. Consequently, the EPA will be able to
provide guidance to the State to help assure the prevention of long
term acid drainage after closure.
V. Director's Decision
Based on the above findings, and except as noted below, the
Director is approving the proposed amendment as submitted by
Pennsylvania on September 14, 1995.
As discussed in Finding 2 above, the definition of ``coal refuse
disposal activities'' at section 3(2.1) is approved with the
requirement that the Pennsylvania program be further amended to clarify
the meaning of the phrase ``excess soil and related materials.''
As discussed in Finding 4 above, the Director is approving
subsection 4.1(b) only to the following extent. With respect to
preferred sites, the State will not approve (via the Site Selection
process) or permit (via requirements in Chapters 86 or 90) a site that
is known or likely to contain Federally listed threatened or endangered
species, unless the State demonstrates and the USFWS concurs that the
proposed activity is not likely to adversely affect Federally listed
threatened or endangered species or result in the ``take'' of Federally
listed or endangered species in violation of Section 9 of the
Endangered Species Act.
As discussed in Finding 5 above, the Director is approving
subsection 6.1(h)(5) only to the extent that it authorizes stream
buffer zone variances for coal refuse disposal activities that will not
cause or contribute to the violation of water quality standards, and
will not adversely affect the water quantity and quality or other
environmental resources of the stream. Also, the Director is requiring
Pennsylvania to amend its program to authorize stream buffer zone
variances for coal refuse disposal activities only where such
activities will not cause or contribute to the violation of applicable
State or Federal water quality standards, and will not adversely affect
water quality and quantity, or other environmental resources of the
stream.
As discussed in Finding 6 above, Section 6.2 is approved, except as
noted below, provided nothing in this approval authorizes the State to
implement these provisions with respect to revised effluent limitations
without approval by the EPA pursuant to the Clean Water Act.
Subsection 6.2(g)(2) is approved to the extent that it applies to
final bond releases on permits other than the permit for which the
allegation that the baseline pollution load has been exceeded is
pending.
Subsection 6.2(h) is approved to the extent that the proposed
language in the first sentence of Sec. 6.2(h) pertains only to
subsection 6.2(g)(1)(ii), which governs discharges that are not
encountered. Also, the Director is requiring that the State further
amend the Pennsylvania program to clarify that Subsection 6.2(h) of the
Coal Refuse Disposal Act pertains to preexisting discharges that are
not encountered.
Subsections 6.2(g), (h), and (i) are approved with the
understanding that the implementing regulations to be developed by
Pennsylvania (as is required by Section 3.2(b) of the Coal Refuse
Disposal Act) to implement the provisions at Section 6.2 will clarify
that preexisting discharges that are encountered must be treated to the
State effluent standards at Chapter 90, subchapter D at 90.102.
Subsection 6.2(k) is approved only to the extent that it is
applicable to areas previously disturbed by mining that were not
reclaimed to the standards of the Pennsylvania program. In addition,
the Director is requiring that the State further amend the Pennsylvania
program to be no less effective than 30 CFR 816.116(b)(5), by limiting
the application of the revegetation standards under Subsection 6.2(k)
of its Coal Refuse Disposal Act, to areas that were previously
disturbed by mining and that were not reclaimed to the State
reclamation standards.
Subsection 6.2(l) is approved to the extent the PADEP will not
approve a special authorization when such an authorization would result
in the site being reclaimed to lesser standards than could be achieved
if the forfeited bond moneys were used to reclaim the site to the
standards approved in the original permit under which the bond moneys
were forfeited. In addition, the Director is requiring that the State
further amend the Pennsylvania program to clarify that under Subsection
6.2(l) of its Coal Refuse Disposal Act, a special authorization for
coal refuse disposal operations will not be granted, when such an
authorization would result in the site being reclaimed to lesser
standards than could be achieved if the moneys paid into the Fund, as a
result of a prior forfeiture on the area, were used to reclaim the site
to the standards approved in the original permit under which the bond
moneys were forfeited.
As discussed above in Finding 7 concerning Section 6.3--
Experimental Practices, the Director is requiring that the State
further amend the Pennsylvania program by adding implementing rules no
less effective than 30 CFR 785.13, and no less stringent than SMCRA
Section 711 and which clarify that experimental practices are only
approved as part of the normal permit approval process and only for
departures from the environmental protection performance standards, and
that each experimental practice receive the approval of the Secretary.
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 Decision
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 his
oversight of the Pennsylvania program, the Director will recognize only
the statutes, regulations and other materials approved by him, 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
[[Page 19820]]
(OMB) under Executive Order 12866 (Regulatory Planning and Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the date 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: April 14, 1998.
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 Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
September 13, 1995.................... April 22, 1998........................ Pennsylvania law Act 1994-114
concerning the special
authorization for refuse
disposal in areas previously
affected by mining which
contain pollutional discharges:
Title and 1; 3; 3.2(b); 4.1;
6.1(h)(5), (i); 6.2; 6.3; 15.1.
----------------------------------------------------------------------------------------------------------------
3. Section 938.16 is amended by adding new paragraphs (vvv) through
(bbbb) to read as follows:
Sec. 938.16 Required regulatory program amendments.
* * * * *
(vvv) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to clarify the meaning of the term ``excess soil and related
materials'' as that term is used in the definition of ``coal refuse
disposal activities.''
(www) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to authorize stream buffer zone variances for coal refuse
disposal activities only where such activities will not cause or
contribute to the violation of applicable State or Federal water
quality standards, and will not adversely affect water quality and
quantity, or other environmental resources of the stream.
(xxx) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to clarify, in the regulations to be developed to implement the
provisions of section 6.2 of the Coal Refuse Disposal Act (as is
required by Section 3.2)(b) of the Coal Refuse Disposal Act), that
preexisting discharges that are encountered must be treated to the
State effluent standards at Chapter 90, subchapter D at 90.102.
(yyy) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to clarify that Subsection 6.2(h) of the Coal Refuse Disposal
Act pertains to preexisting discharges that are not encountered.
(zzz) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to be no less effective than 30 CFR 816.116(b)(5), by limiting
the application of the revegetation standards under Subsection 6.2(k)
of its Coal Refuse Disposal Act, to areas that were previously
disturbed by mining and that were not reclaimed to the State
reclamation standards.
(aaaa) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program to clarify that under Subsection 6.2(l) of its Coal Refuse
Disposal Act, a special authorization for coal refuse disposal
operations will not be granted, when such an authorization would result
in the site being reclaimed to lesser standards than could be achieved
if the moneys paid into the Fund, as a result of a prior forfeiture on
the area, were used to reclaim the site to the standards approved in
the original permit under which the bond moneys were forfeited.
[[Page 19821]]
(bbbb) By July 1, 1998, Pennsylvania shall amend the Pennsylvania
program by adding implementing rules no less effective than 30 CFR
785.13, and no less stringent than SMCRA Section 711 and which clarify
that experimental practices are only approved as part of the normal
permit approval process and only for departures from the environmental
protection performance standards, and that each experimental practice
receive the approval of the Secretary.
[FR Doc. 98-10632 Filed 4-21-98; 8:45 am]
BILLING CODE 4310-05-M
