[Federal Register Volume 69, Number 226 (Wednesday, November 24, 2004)]
[Proposed Rules]
[Pages 68285-68287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25971]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-124-FOR]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: We are reopening the public comment period on a proposed 
amendment to the Pennsylvania regulatory program (the ``Pennsylvania 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). Since the close of the comment period, Pennsylvania 
has provided explanatory information in response to two letters, as 
amended, we sent requesting clarification with regard to its proposed 
amendment. Pennsylvania has also withdrawn portions of its original 
amendment and has requested that we consider some existing statutes and 
regulatory provisions as part of the amendment. Pennsylvania has also 
indicated its intent to further revise portions of the amendment. We 
are accepting comments on the specific changes noted below only.

DATES: We will accept written comments on this proposal until 4 p.m., 
(local time) December 9, 2004.

[[Page 68286]]


ADDRESSES: You may submit comments, identified by PA-124-FOR, by any of 
the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#d6b1a4bfb3b1b3a496b9a5bba4b3f8b1b9a0"><span class="__cf_email__" data-cfemail="4f283d262a282a3d0f203c223d2a61282039">[email protected]</span></a>. Include PA-124-FOR in the 
subject line of the message.
    <bullet> Mail/Hand Delivery: George Rieger, Director, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market 
Streets, Harrisburg, Pennsylvania 17101.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the 
Pennsylvania program, this amendment, and all written comments received 
in response to this document at the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendment by contacting OSM's Pittsburgh 
Field Division.

George Rieger, Director, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, Harrisburg Transportation Center, 
Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania 
17101, E-mail: <a href="/cdn-cgi/l/email-protection#2e495c474b494b5c6e415d435c4b00494158"><span class="__cf_email__" data-cfemail="87e0f5eee2e0e2f5c7e8f4eaf5e2a9e0e8f1">[email protected]</span></a>, Telephone: (717) 782-4036.
Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, PO Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5103.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036, E-mail: <a href="/cdn-cgi/l/email-protection#e087928985878592a08f938d9285ce878f96"><span class="__cf_email__" data-cfemail="690e1b000c0e0c1b29061a041b0c470e061f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description of the Proposed Action
III. Public Comment Procedures

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Pennsylvania program on July 30, 1982. You can find background 
information on the Pennsylvania program, including the Secretary's 
findings, the disposition of comments, and conditions of approval of 
the Pennsylvania program in the July 30, 1982, Federal Register (47 FR 
33050). You can also find later actions concerning the Pennsylvania 
program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 
938.16.

II. Description of the Proposed Action

    By letter dated December 18, 1998 (Administrative Record No. PA 
853.01), the Pennsylvania Department of Environmental Protection 
(PADEP) submitted a proposed amendment to its program pursuant to 
various issues including bonding, remining and reclamation, postmining 
discharges, and water supply protection/replacement. The proposal 
included two documents: ``Provisions of Pennsylvania's Statute--Surface 
Mining Conservation and Reclamation Act--Submitted for Program 
Amendment'' and ``Provisions of Pennsylvania's Regulations--25 Pa. Code 
Chapters 86-90--Submitted for Program Amendment.''
    We announced receipt of the proposed amendment in the March 12, 
1999, Federal Register (64 FR 12269), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
April 12, 1999. Please refer to the March 12, 1999, Federal Register 
for additional background information. In the July 8, 1999, Federal 
Register (64 FR 36828), we reopened the comment period in response to a 
June 1, 1999, letter (Administrative Record No. PA 853.11) from PADEP 
regarding deletion of the definition of the term ``best professional 
judgment'' at 25 Pa. Code 87.202 and 25 Pa. Code 88.502, and the 
deletion of subsections 25 Pa. Code 87.207(b) and 25 Pa. Code 
88.507(b). The reopened comment period closed on July 23, 1999.
    By letters dated September 22, 1999 (Administrative Record No. PA 
853.14), and April 6, 2000 (Administrative Record No. PA 853.17), we 
requested clarification from Pennsylvania on various aspects of its 
amendment. In an October 3, 2002, letter to Pennsylvania 
(Administrative Record No. PA 853.22), we indicated that some of the 
issues in our September 22, 1999, and April 6, 2000, letters were no 
longer valid and that we were withdrawing our request for clarification 
of those issues. The conclusions in this letter were the result of our 
internal deliberations; we did not remove our request for clarification 
of these issues as the result of information from any other source. 
Since the issuance of the October 3, 2002, letter, we have had numerous 
meetings with Pennsylvania to discuss the items remaining from the 
September 22, 1999, and the April 6, 2000, letters.
    The meetings with Pennsylvania resulted in Pennsylvania providing 
information to us to clarify the meaning of various parts of its 
amendment. We prepared a document listing those clarifications and 
placed it in the administrative record (Administrative Record No. PA 
853.25). Copies of that document can be obtained from OSM's Harrisburg 
Office at the address noted above. The parts of Pennsylvania Surface 
Mining Conservation and Reclamation Act (PASMCRA) that we received 
clarifications on include: Sections 4(d); 4(d)(2); 4(g)(1) and (3); 
4.2(f)(2) and (3); 4.13; 18(a.1); and 18.9. We received clarifications 
from Pennsylvania on the following regulations at 25 Pa. Code Chapter 
86: Sections 86.151(c); 86.158(e) and (f); 86.168; 86.174(a); 86.252 
(definition of ``remining area''); 86.253(b)(2)-(4); and 86.354. 
Finally, we received clarifications from Pennsylvania on the following 
portions of 25 Pa. Code Chapter 87: 87.119(d) and (e). We are seeking 
comment on the clarifications PADEP provided to us of these sections.
    Additionally, Pennsylvania submitted two letters to us modifying 
the December 18, 1998, amendment. Those letters were dated December 23, 
2003 (Administrative Record No. PA 853.23), and April 13, 2004 
(Administrative Record No. PA 853.24).
    In the December 23, 2003, letter, Pennsylvania noted that in the 
1998 amendment submission it had proposed the removal of certain 
language in 25 Pa. Code Chapters 87-90 including: Sections 87.102; 
87.103; 87.207(b); 88.92; 88.93; 88.187; 88.188; 88.292; 88.293; 
88.507(b); 89.52; 89.53; 90.102; and 90.103 which provide effluent 
limits for discharges from areas disturbed by coal mining activities. 
In the 1998 amendment, Pennsylvania also requested the definition of 
the phrase, ``dry weather flow'' in 25 Pa. Code 87.1, 88.1, 89.5, and 
90.1 and the definition of the phrase, ``best professional judgment'' 
in Sections 87.202 and

[[Page 68287]]

88.502 be removed from the approved program. In the December 23, 2003, 
letter, Pennsylvania revised the 1998 amendment as submitted to retain, 
as part of its approved program, the above referenced regulations which 
provide effluent limits and the definitions of ``dry weather flow'' and 
``best professional judgment.'' Therefore, we consider those portions 
of the 1998 amendment submission as withdrawn and they will not be 
considered further in this rulemaking. No comments will be accepted 
with regard to these areas.
    Also in the December 23, 2003, letter Pennsylvania indicated that 
the 1998 program amendment had included Sections 4(g.1), 4(g.2), and 
4(g.3) of PASMCRA relating to minimal impact postmining discharges and 
the release of bonds on mine sites with discharges. Pennsylvania noted 
in that letter that since the definition of minimal impact postmining 
discharges and the regulations for postmining discharges were not 
included in the program amendment, it was requesting that these 
sections of PASMCRA be removed from the proposed amendment. 
Pennsylvania noted in the letter that it was intending to submit these 
sections along with the associated regulations as a separate program 
amendment. Therefore, these sections are also withdrawn and will not be 
considered further in this rulemaking. No comments will be accepted 
with regard to these areas.
    In the April 13, 2004, letter, Pennsylvania notified us that it 
wished to withdraw Section 18(a.4) of PASMCRA from consideration under 
the 1998 program amendment because the areas suitable for reclamation 
by remining program has not yet been developed. Therefore, this section 
will not be considered further in this rulemaking. No comments will be 
accepted with regard to these areas.
    Also in its April 13, 2004, letter Pennsylvania requested that we 
consider for approval Sections 4.10 and 4.11 of PASMCRA and the 
corresponding regulations at 25 Pa. Code Sections 86.251 through 
86.270. These sections of the statute and regulations provide for 
Pennsylvania's Remining Operators Assistance Program. This program 
provides incentives to operators to undertake reclamation and remining 
of abandoned mine lands and bond forfeiture sites. These provisions are 
now included in this rulemaking action and we are seeking comment with 
regard to these sections of PASMCRA and 25 Pa. Code Chapter 86.
    In the April 13, 2004, letter, and its attachment, Pennsylvania 
also notified us that it intends to address outstanding issues in this 
amendment relating to: De minimis cost increases for a replacement 
water supply; temporary replacement of water supply; waivers for water 
supply replacement; adequate versus equivalent water supply; operation 
and maintenance costs for replaced water supplies; financial guarantees 
to operators to reclaim abandoned mine lands through remining; and, 
operator cost recovery, through additional regulation changes. While 
Pennsylvania has indicated that it intends to further revise those 
portions of the pending package, it has not withdrawn those portions 
and has asked that we proceed with a decision. Since we received no 
changes or clarifications from the original amendment with regard to 
these areas, we are not reopening the comment period for them.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the information described above satisfies the 
applicable program approval criteria of 30 CFR 732.15. If we approve 
the amendment, it will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not necessarily consider or 
respond to your comments when developing the final rule if they are 
received after the close of the comment period (see DATES). We will 
make every attempt to log all comments into the administrative record, 
but comments delivered to an address other than the Harrisburg Office 
may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. PA-124-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Harrisburg Office at 
(717) 782-4036.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 9, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-25971 Filed 11-23-04; 8:45 am]
BILLING CODE 4310-05-P


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