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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement 

          - 30 CFR Part 938 
          - [PA-124-FOR] 

# AGENCY:

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

# ACTION:

Proposed rule; reopening of public comment period. 

# 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 Pennsylvania has also withdrawn portions of its original amendment and has requested that we consider some existing statutes and regulatory provisions as part of the amendment.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. 

      ( print page 68286)    

# ADDRESSES:

You may submit comments, identified by PA-124-FOR, by any of the following methods: 
      - E-mail: grieger@osmre.gov.                          Include PA-124-FOR in the subject line of the message.                     
      - 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.
      - 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:                         *grieger@osmre.gov,*                         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:                         *grieger@osmre.gov.*

# 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                           ( print 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