[Federal Register Volume 63, Number 167 (Friday, August 28, 1998)]
[Proposed Rules]
[Pages 45973-45975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23242]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-123-FOR]
Pennsylvania Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing the receipt of 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 proposed amendment (Administrative
Record Number PA 837.80) revises the Pennsylvania program to
incorporate changes made to address required amendments to the
Pennsylvania program that are identified in OSM's approval of
Pennsylvania's coal refuse disposal amendment on April 22, 1998 (63 FR
19802). The amendment is intended to revise the Pennsylvania program to
be consistent with SMCRA and the Federal regulations.
DATES: Written comments must be received on or before the close of
business on September 28, 1998. If requested, a public hearing on the
proposed amendments will be held on September 22, 1998. Requests to
present oral testimony at the hearing must be received on or before the
close of business on September 14, 1998.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Robert J. Biggi, Director, Harrisburg
Field Office at the address shown below.
Copies of the Pennsylvania program, the proposed amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document will be available for public
review at the addresses listed below during normal business hours,
Monday through Friday, excluding holidays. Each requestor may receive
one free copy of the proposed amendment by contacting OSM's Harrisburg
Field Office. Any disabled individual who has need for a special
accommodation to attend a public hearing should contact the individual
listed unde 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.
Pennsylvania Department of Environmental Protection, Bureau of
Mining and Reclamation, Room 209 Executive House, 2nd and Chestnut
Streets, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone:
(717) 787-5103.
FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg
Field Office, (717) 782-4036.
SUPPLEMENTARY INFORMATION:
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. Discussion of Amendment
By letter dated September 14, 1995 (Administrative Record Number PA
[[Page 45974]]
837.01), Pennsylvania submitted an amendment to the Pennsylvania
program. The amending language is contained in Pennsylvania House Bill
1075 and was enacted into Pennsylvania law as Act 1994-114. The
amendments changed Pennsylvania's Coal Refuse Disposal Act (of
September 24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980
(P.L. 807, No. 154)) to provide authorization for refuse disposal in
areas previously affected by mining which contain pollutional
discharges. OSM approved the amendments, with certain exceptions, on
April 22, 1998 (63 FR 19802-19821). The April 22, 1998, notice
contained seven required regulatory program amendments codified at 30
CFR 938.16 paragraphs (vvv) through (bbbb). On June 15, 1998 (63 FR
32615-32616), OSM corrected an inadvertent omission of a phrase at 30
CFR 938.16 paragraphs (vvv) through (bbbb), concerning the required
Pennsylvania regulatory program amendments published in the April 22,
1998, Federal Register notice at pages 19820-19821.
By letter dated May 22, 1998 (Administrative Record Number PA
837.72) Pennsylvania responded to the required regulatory program
amendments codified at 30 CFR 938.16 (vvv) through (bbbb) by submitting
three items: (1) Written clarifications relating to each of the
required regulatory program amendments; (2) the draft text of a notice
to be published in the Pennsylvania Bulletin intended to address one of
the required amendments; and (3) a legal opinion from the Pennsylvania
Department of Environmental Protection (DEP) legal counsel confirming
the DEP's authority to implement the necessary change.
By letter dated July 15, 1998 (Administrative Record Number PA
837.74) OSM responded to DEP's May 22, 1998, letter and stated that the
clarifications can only be incorporated into the approved Pennsylvania
program through formal rulemaking.
By letter dated August 17, 1998 (Administrative Record Number (PA
837.80)), the DEP requested that OSM process the DEP's May 22, 1998,
letter as a program amendment.
The proposed amendments are as follows:
Required amendment codified at 30 CFR 938.16(vvv)
The meaning of the term ``excess soil and related material'' as
used in the definition ``coal refuse disposal activities'' in
Section 3 of the Coal Refuse Disposal Control Act (CRDCA) is
clarified to mean the rock, clay or other materials located
immediately above or below a coal seam and which are extracted from
a coal mine during the process of mining coal. The term does not
include topsoil or subsoil. This clarification will be incorporated
in regulations as they are developed.
Required amendment codified at 30 CFR 938.16(www)
The Department has considered OSM's discussion relating to
variances on stream buffer zones. The Department's application of
variance provisions has previously been directed to ensuring that
coal refuse disposal activities within stream buffer zones would not
cause or contribute to the violation of State or Federal water
quality standards, and would not adversely affect water quality and
quantity, or other environmental resources of the stream. The
Department notes that any coal refuse disposal activity is likely to
cause some type of impact and that some impacts can be tolerated.
OSM interprets an adverse impact as one that exceeds the allowable
limits, that is, one that will not be tolerated. The Department's
interpretation of ``significant adverse impact'' is the same as
OSM's interpretation of ``adverse impact;'' in both cases, it is an
impact that will not be tolerated because it exceeds the allowable
limits. The Department distinguishes between impacts that are
tolerable and those that are not through its use of the word
``significant.'' However, the Department recognizes that differences
in terminology may cause confusion and will therefore suspend use of
the term ``significant,'' even though, in practice, the same
protections will continue to be afforded. Consequently, when
granting a variance, the Department will not implement the word
``significant'' in Sec. 6.1(h)(5) of the CRDCA, as it pertains to
granting of variances to the 100-foot stream buffer zone. Under
Sec. 15.1 of CRDCA, the Department has the authority to suspend
implementation of any provision of the CRDCA found to be
inconsistent with federal law by OSM. By notice scheduled to be
published in the Pennsylvania Bulletin on May 30, 1998, and in
accordance with Sec. 15.1 of the CRDCA, the Department will confirm
that it has suspended implementation of the word ``significant'' on
the basis of the Secretary of the United States Department of the
Interior's finding that the word ``significant'' was inconsistent
with federal law. The Department reaffirms that it will only
authorize variances to conduct coal refuse disposal activities
within stream buffer zones if the activities will not cause or
contribute to the violation of State or Federal water quality
standards, and will not adversely affect water quality and quantity,
or other environmental resources of the stream. This clarification
will be incorporated in regulations as they are developed.
In the May 30, 1998, Pennsylvania Bulletin (Vol. 28, No. 22)
Pennsylvania announced that the DEP suspended, in accordance with
Sec. 15.1 of the Coal Refuse Disposal Act (52 P.S. Sec. 90.65a), the
implementation of the word ``significant'' found in Sec. 6.1(h)(5) of
the Coal Refuse Disposal Act. Also included in the DEP's May 22, 1998,
submittal is a memorandum dated May 19, 1998, from the Chief Council of
the DEP. In that memorandum, the Chief Counsel stated that the
``Department [DEP] has the legal authority to suspend implementation of
the word `significant' and to clarify to OSM how the Department will
interpret and implement the Act 114 amendments as part of its approved
program. The Department's interpretations are consistent with the
law.''
Required amendment codified at 30 CFR 938.16(xxx)
The Department clarifies that preexisting discharges which are
encountered must be treated to the effluent standards of 25 Pa. Code
Sec. 90.102. This clarification will be incorporated in regulations
governing Section 6.2 of the CRDCA as they are developed.
Required amendment codified at 30 CFR 938.16(yyy)
The Department clarifies that subsection 6.2(h) of the CRDCA
pertains to preexisting discharges which are not encountered. This
clarification will be incorporated in regulations as they are
developed.
Required amendment codified at 30 CFR 938.16(zzz)
The Department clarifies that the revegetation standards of
subsection 6.2(k) of the CRDCA are limited to areas previously
disturbed by mining and which were not reclaimed to Pennsylvania's
reclamation standards. This clarification will be incorporated in
regulations as they are developed.
Required amendment codified at 30 CFR 938.16(aaaa)
The Department clarifies that under subsection 6.2(l) of the
CRDCA, a special authorization for coal refuse disposal operations
will not be granted when such an authorization would result in the
site being reclaimed to lesser standards than could be achieved if
the monies paid into the Surface Mining Conservation and Reclamation
Fund, as a result of a prior forfeiture on the area, were used to
reclaim the site to the standards approved in the original permit
under which the bond monies were forfeited. This clarification will
be incorporated in regulations as they are developed.
Required amendment codified at 30 CFR 938.16(bbbb)
The Department clarifies that the Department will implement
Section 6.3 of the CRDCA in a manner no less effective than 30 CFR
Sec. 785.13 and no less stringent than Section 711 of the Surface
Mining Control and Reclamation Act and clarifies that experimental
practices will only be approved as part of the normal permit
approval process and only for departure from the environmental
protection performance standards, and that each experimental
practice must receive the approval of the Secretary of the United
States Department of Interior. This clarification will be
incorporated in regulations as they are developed.
[[Page 45975]]
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is now
seeking comments on the proposed amendments to the Pennsylvania program
that were submitted on May 22, 1998. Comments should address whether
the proposed amendments satisfy the applicable program approval
criteria of 30 CFR 732.15. If the amendments are deemed adequate, they
will become part of the Pennsylvania program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this notice, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the OSM Harrisburg Field Office
will not necessarily be considered in the final rulemaking or included
in the administrative record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by the close of
business on September 14, 1998. If no one requests an opportunity to
testify at the public hearing, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart 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: August 21, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-23242 Filed 8-27-98; 8:45 am]
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