Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39289

(1) Noncitizenship,

(2) Refusal under the provisions of

§ 51.70(a)(8),

(3) Refusal to grant a discretionary

exception under the emergency or

humanitarian relief provisions of

§ 51.71(c), or

(4) Refusal to grant a discretionary

exception from geographical limitations

of general applicability.

(b) The provisions of this subpart

shall otherwise constitute the

administrative remedies provided by the

Department to persons who are the

subjects of adverse action under

§§ 51.70, 51.71 or 51.72.

Dated: June 2, 2000.

Mary A. Ryan,

Assistant Secretary for Consular Affairs,

Department of State.

[FR Doc. 00–16089 Filed 6–23–00; 8:45 am]

BILLING CODE 4710–06–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 938

[PA–129–FOR]

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: OSM is approving an

amendment to the Pennsylvania

regulatory program (Pennsylvania

program) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA), 30 U.S.C. 1201 et seq., as

amended. The amendment revises

certain portions of 25 Pennsylvania

Code Chapter 86, Surface and

Underground Mining: General; Chapter

87, Surface Mining of Coal; Chapter 88,

Anthracite Coal; Chapter 89,

Underground Mining of Coal and Coal

Preparation Facilities; and Chapter 90,

Coal Refuse Disposal. The amendments

are intended to revise the Pennsylvania

program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: June 26, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert J. Biggi, Office of Surface Mining

Reclamation and Enforcement,

Harrisburg Field Office, Third Floor,

Suite 3C, Harrisburg Transportation

Center (Amtrack), 415 Market Street,

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 30, 1982, the Secretary of the

Interior conditionally approved the

Pennsylvania program. You can find

background on the Pennsylvania

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of the approval in

the July 30, 1982 Federal Register (47

FR 33079). Subsequent actions

concerning the regulatory program

amendments are codified at 30 CFR

938.11, 938.15 and 938.16.

II. Submission of the Amendment

By letter dated November 30, 1999

(Administrative Record No. PA–849.02),

the Pennsylvania Department of

Environmental Protection (PADEP)

submitted an amendment to its

approved permanent regulatory program

pursuant to the Federal regulations at 30

CFR 732.17(b). Pennsylvania did so as a

result of its Regulatory Basics Initiative

(RBI) intended to revise regulations

considered to be unclear, unnecessary

or more stringent than the

corresponding Federal regulation. The

proposed rulemaking was published in

the December 17, 1999 Federal Register

(64 FR 70644). The public comment

period closed on January 18, 2000. No

one requested to speak at a public

hearing, so no hearing was held.

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 amendments to

the Pennsylvania regulatory program.

Revisions not specifically discussed

below concern paragraph notations to

reflect organizational changes resulting

from this amendment.

PADEP is amending certain

provisions of 25 Pennsylvania Code,

Chapters 86 through 90, as follows:

Chapter 86, Surface and Underground

Coal Mining: General

Section 86.2 Scope

PADEP is correcting a grammatical

error by changing the word ‘‘specify’’ to

‘‘specifies’’ in the opening paragraph.

This is a non-substantive change that

does not require OSM approval.

Section 86.37 Criteria for Permit

Approval or Denial

PADEP is modifying subdivision

(a)(4) to assure activities proposed

under the application have been

designed to prevent material damage to

the hydrologic balance outside the

proposed permit area, while eliminating

the reference to damage to the

hydrologic balance within the permit

area, by adding the word ‘‘material’’

before ‘‘damage’’ and eliminating the

words ‘‘within and’’ before the word

‘‘outside’’. The Director finds that the

changes described above render

§ 86.37(a)(4) substantively identical to

and therefore no less effective than the

corresponding portion of the Federal

provision at 30 CFR 773.15(c)(5).

PADEP is modifying subdivision

(a)(6) regarding the effects of proposed

coal mining activities on properties

listed on or eligible for listing on the

National Register of Historic Places by

deleting the phrase ‘‘or eligible for

inclusion on’’ from the second sentence

and re-ordering the sentences. The first

two sentences of subdivision (6) now

state that ‘‘[t]he proposed activities will

not adversely affect any publicly owned

parks or places included on the National

Register of Historic Places, except as

provided for in Subchapter D. The effect

of the proposed coal mining activities

on properties listed on or eligible for

listing on the National Register of

Historic Places has been taken into

account by the Department’’. The

Director finds that the changes

described above render § 86.37(a)(6)

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 773.15(c)(3) and

761.11(c).

Section 86.40 Permit Terms

PADEP is modifying subsection (b) by

adding criteria under which the

Department may grant an extension of

time for commencement of mining

activities by adding the phrase ‘‘or if

there are conditions beyond the control

and without the fault or negligence of

the permittee.’’ The Director finds that

the changes described above are

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 773.19(e)(2)(ii).

Section 86.64 Right of Entry

PADEP is modifying this section by

adding additional criteria for

documenting right of entry by adding

the following sentence to subsection (a):

‘‘The description shall identify the

documents by type and date of

execution, identify the specific lands to

which the document pertains and

explain the legal rights claimed by the

applicant’’. Existing subdivisions (b)(1)

and (2) are eliminated and new

subdivisions (b)(1) through (3) are

added specifying the documents

39290 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations

required. New subsection (c) states that

‘‘[t]his section shall not be construed to

provide the Department with the

authority to adjudicate property rights

disputes’’. Existing subsection (c) is relettered as (d), new subdivision (d)(3) is

added to state that the requirements of

subsection (d) are in addition to the

requirements required by subsections (a)

and (b), and existing subsections (d) and

(e) are re-lettered as (e) and (f),

respectively. Subsection (f) is amended

to state that all information required in

§ 86.64 shall be made part of the permit

application. The Director finds that the

changes described above are

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 778.15(b) and (c),

except for subdivision (d)(3), which has

no Federal counterpart. However,

subdivision (d)(3) is not inconsistent

with 30 CFR 778.15, since it provides

that the right of entry requirements of

subsection (d), which also have no

Federal counterparts, are in addition to,

(and therefore do not supersede), the

requirements contained in subsections

(a) and (b). Also, the Director finds that

new subdivisions (b)(2) and (b)(3)

satisfy the required amendment at 30

CFR 938.16(ll), which is hereby

removed.

Section 86.70 Proof of Publication

PADEP is modifying this section to

require that a permit application to the

Department shall contain an intent to

publish, and a copy of the language to

appear in the public notice as well as a

copy of the advertisements or the

original notarized proof of publication.

The Director finds that the changes

described above are substantively

identical to and therefore no less

effective than the Federal Regulations at

30 CFR 778.13(a) and 778.21, except

that § 86.70 also requires a statement of

‘‘intent to publish,’’ which is not

required in the Federal regulations.

However, since this requirement is in

addition to the Federal requirements, it

is not inconsistent with the Federal

regulations.

Section 86.132 Definitions

PADEP is modifying the definition of

‘‘substantially disturb,’’ with respect to

coal exploration, by adding the word

‘‘significant’’ before ‘‘impact,’’ in order

to limit its application to coal

exploration activities that have a

significant impact on land, air or water

resources. The relevant portion of the

definition now reads ‘‘For purposes of

coal exploration, including, but not

limited to, to have a significant impact

upon land, air or water resources

* * *’’ (Emphasis added)

The Director finds that the change

described above brings the State’s

definition, which OSM previously

found to be substantively identical to its

Federal counterpart at 30 CFR 701.5 (58

FR 18149, 18151, April 8, 1993), into

conformity with the precise language of

the Federal definition.

Section 86.133 General Requirements

for Coal Exploration

PADEP is modifying subsection (e) to

include a metric tonnage equivalent to

the 250 ton limit for coal exploration

that may be allowed without a permit,

to change the words ‘‘less than’’ to ‘‘or

less,’’ and to change the words ‘‘or

more’’ to ‘‘more than.’’ The effect of the

changes is to allow the department to

waive the permitting requirement, to

enable coal properties testing and

analysis, where 250 tons (226 metric

tons) of coal or less are removed, but to

require a permit for the removal of more

than 250 tons (226 metric tons) of coal.

The Director finds that the changes do

not render § 86.133(e) less effective than

the Federal Regulations at 30 CFR

772.11 and 772.12. However, the

required amendment at 30 CFR

938.16(ccc) remains unsatisfied.

Section 86.134 Coal Exploration

Performance and Design Standards

PADEP is modifying this section by

eliminating existing subdivisions (2)

and (3) that required the person

conducting coal exploration to measure

environmental characteristics during the

operations and to limit vehicular traffic,

and adding new subdivision (2) that

states ‘‘Roads used for coal exploration

shall comply with the following: * * *’’

Existing subdivisions (4) and (5) are renumbered as (3) and (4), existing

subdivision (6), which requires

revegetation of areas disturbed by coal

exploration to be performed by the

person who conducts the exploration, or

by his agent, is eliminated and new

subdivision (5) is added as follows: ‘‘All

areas disturbed by coal exploration

activities shall be vegetated in a manner

that encourages prompt revegetation

and recovery of a diverse, effective and

permanent vegetative cover’’.

Additionally, existing subdivisions (7)

through (12) are re-numbered as (6)

through (11) respectively. The Director

finds that the changes described above

are substantively identical to and

therefore no less effective than their

Federal regulatory counterparts at 30

CFR 815.15(b) and (e).

Section 86.174 Standards for Release

of Bonds

PADEP is modifying subdivision

(b)(1) to clarify the standards for Stage

2 bond release by requiring that topsoil

and revegetation be successfully

completed in accordance with the

reclamation plan. The phrase ‘‘and the

standards for the success of revegetation

are met’’ is eliminated. The Director

finds that the change described above

renders subdivision (b)(1) substantively

identical to and therefore no less

effective than the corresponding Federal

regulatory language contained in the

Federal Regulations at 30 CFR

800.40(c)(2).

Chapter 87, Surface Mining of Coal

Section 87.1 Definitions

PADEP is adding, at new subsection

(x), a definition of ‘‘unmanaged natural

habitat.’’ The term is defined as idle

land which does not require a specific

management plan after the reclamation

and revegetation have been

accomplished. Although the Federal

Regulations do not have a direct

counterpart, the Director finds the

State’s definition to be consistent with

the definition of ‘‘undeveloped land or

no current use or land management’’ at

30 CFR 701.5.

Section 87.77 Protection of Public

Parks and Historic Places

PADEP is modifying subsection (a) by

specifying that the permit application

requirements to include protective

measures apply to publicly owned parks

or historic places that are listed on the

National Register of Historic Places, and

that may be adversely affected by the

proposed operations. The Director finds

that the changes described render the

introductory language of subsection (a)

substantively identical to and therefore

no less effective than the corresponding

introductory language contained in 30

CFR 780.31(a).

Section 87.93 Casing and Sealing of

Drilled Holes

PADEP is modifying subdivision

(a)(2) by requiring that exploration

holes, other drilled or boreholes, wells

or other exposed underground openings

be cased, sealed or otherwise managed

in order to ‘‘minimize,’’ rather than to

‘‘prevent to the maximum extent

possible,’’ damage to the prevailing

hydrologic balance. The Director finds

that this change renders subdivision

(a)(2) substantively identical to and

therefore no less effective than

corresponding language contained in

the Federal Regulations at 30 CFR

816.13.

PADEP is modifying subdivision

(e)(2)(iii) pertaining to when the

Department may approve lesser

distances for the barrier of undisturbed

earth, by deleting the existing language

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39291

and adding the following: ‘‘The

measures included in the permit to

minimize damage, destruction or

disruption of services pursuant to

§ 87.173(b) are implemented.’’ At

subsection (e), the minimum required

radius for the solid barrier of

undisturbed earth that must surround

oil and gas wells is now also being

expressed in meters, in addition to feet.

The Director finds that, while

subdivision (e)(2)(iii) has no direct

Federal counterpart, the proposed

amendments thereto do not render it

inconsistent with the Federal

Regulations at 30 CFR 816.13.

Section 87.97 Topsoil: Removal

PADEP is modifying subsection (c) by

including a metric conversion figure, in

centimeters, which corresponds to the

12 inch topsoil thickness threshold,

which if not in existence triggers the

requirement to remove, segregate,

conserve and replace a twelve inch layer

that includes topsoil and other

unconsolidated materials as the final

surface soil layer. A centimeter

measurement is also added for the 12-

inch thickness threshold for topsoil and

unconsolidated material combined,

which if not in existence triggers the

requirement to remove, segregate,

conserve and replace the topsoil and all

unconsolidated materials as the final

surface soil layer. These changes are

nonsubstantive in nature and do not

require OSM approval.

Subsection (f), which currently

pertains to ‘‘subsoil’’ substitution

requirements, is amended to pertain to

‘‘topsoil’’ substitution requirements.

The Director finds that this change

renders section 86.97 substantively

identical to and therefore no less

effective than the counterpart language

contained in the Federal Regulations at

30 CFR 816.22(b).

Section 87.101 Hydrologic Balance:

General Requirements

PADEP is modifying subsection (a),

which currently requires that surface

activities be planned and conducted to

‘‘prevent to the maximum extent

possible’’ disturbances to the prevailing

hydrologic balance in the permit and

adjacent area. As modified, subsection

(a) will require that surface activities be

planned and conducted to ‘‘minimize’’

such disturbances. This subsection is

further modified by the addition of a

requirement that surface mining

activities shall be planned and

conducted to prevent material damage

to the hydrologic balance outside the

permit area. Finally, the PADEP added

a provision allowing it to require

additional preventative, remedial, or

monitoring measures to assure that

material damage to the hydrologic

balance outside the permit area is

prevented. The Director finds that the

changes described above render

subsection (a) substantively identical to

and therefore no less effective than the

corresponding language contained in

the Federal Regulations at 30 CFR

816.41(a).

Section 87.106 Hydrologic Balance:

Sediment Control Measures

PADEP is modifying subdivision (1)

to require prevention of contributions of

sediment to streamflow or runoff to the

‘‘extent possible,’’ rather than to the

‘‘maximum extent possible,’’ by deleting

the word ‘‘maximum.’’ The Director

finds that this change renders

subdivision (1) substantively identical

to and therefore no less effective than

the corresponding language contained

in the Federal Regulations at 30 CFR

816.45(a)(1).

PADEP is also modifying subdivision

(3) by changing the language of the

requirement from ‘‘Prevent erosion to

the maximum extent possible’’ to

‘‘Minimize erosion to the extent

possible.’’ The Director finds that this

change renders subdivision (3)

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.45(a)(3).

Section 87.126 Use of Explosives:

Public Notice of Blasting Schedule

PADEP is modifying subsection (a) by

allowing publication of the blasting

schedule in a newspaper of general

circulation up to 30 days before

beginning a blasting program instead of

the existing 20 day period. The Director

finds that the change renders subsection

(a) substantively identical to and

therefore no less effective than the

Federal Regulations at 30 CFR

816.64(b)(1).

Section 87.127 Use of Explosives:

Surface Blasting Requirements

PADEP is modifying subdivision (f)(5)

by deleting the prohibition against

casting flyrock beyond the ‘‘line of

property owned or leased by the

permittee,’’ and by making the permit

boundary the limit beyond which

flyrock may not be cast. The Director

finds that the change renders

subdivision (f)(5) substantively identical

to and therefore no less effective than

the Federal Regulations at 30 CFR

816.67(c)(3).

Section 87.138 Protection of Fish,

Wildlife and Related Environmental

Values

PADEP is modifying this section to

require a person conducting surface

mining activities to, to the extent

possible using the best technology

currently available, minimize

disturbances and adverse impacts on

fish, wildlife and related environmental

values, locate and operate haul and

access roads to avoid or minimize

impacts to fish and wildlife or other

protected species, and to avoid

disturbance to, enhance where

practicable, or restore, habitats of

unusually high value for fish and

wildlife. Prior to these proposed

amendments, this section required that

activities use the best technology

currently available to prevent such

disturbances and adverse impacts. The

Director finds that the changes

described above render section 87.138

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.97(a) and

(e)(2), and to the portion of 30 CFR

816.97(f) that pertains to habitats of

unusually high value. PADEP is also

modifying subsection (b) by changing

the name of the Fish Commission to the

Fish and Boat Commission. As

modified, subsection (b) remains

substantively identical to and therefore

no less effective than the corresponding

language contained in the Federal

regulations at 30 CFR 816.97(b).

Section 87.144 Backfilling and

Grading: Final Slopes

PADEP is modifying subsection (c) by

deleting subdivisions (1) through (4)

enumerating requirements for terraces.

The Director finds that the deletions of

these subdivisions, which have no

Federal counterparts, do not render

subsection (c) less effective than the

Federal regulations at 30 CFR

816.102(g)(1). PADEP is also modifying

subsection (f) by eliminating specific

grading, preparation of overburden, and

placement of topsoil requirements

pertaining to placement in a direction

other than parallel when parallel

placement creates hazards to equipment

operators. The Director finds that the

deletion of these requirements, which

have no direct Federal counterparts,

does not render the state regulations less

effective than the Federal Regulations at

30 CFR 816.102(j).

Section 87.146 Regrading or

Stabilizing Rills and Gullies

PADEP is eliminating the existing

subsection and substituting the

following new subsections:

39292 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations

(a) Exposed surface areas shall be

protected and stabilized to effectively

control erosion and air pollution

attendant to erosion.

(b) Rills and gullies, which form in

areas that have been regraded and

topsoiled and which do one of the

following shall be filled, regraded and

otherwise stabilized:

(1) Disrupt the approved postmining

land use or the reestablishment of the

vegetative cover.

(2) Cause or contribute to a violation

of water quality standards for receiving

streams.

(c) For the areas listed in subsection

(b), the topsoil shall be replaced and the

areas shall be reseeded or replanted.

The Director finds that the changes

described above are substantively

identical to and therefore no less

effective than the Federal Regulations at

30 CFR 816.95(a) and (b).

Section 87.159 Postmining Land Use

PADEP is modifying subsection (b) by

eliminating subdivisions (3) and (4)

pertaining to land that has received

improper management or was changed

within 5 years of the beginning of

mining. These deleted subdivisions

have no Federal counterparts.

PADEP is also adding new

subdivision (c)(3) as follows: ‘‘The

proposed postmining land use is

reasonably likely to be achieved which

may be demonstrated by one or more of

the following or other similar criteria

* * *.’’ Criteria currently identified in

subdivisions (c)(3), (4), and (5) are relettered as (i), (ii) and (iii) respectively,

under new subdivision (c)(3).

PADEP is also eliminating

subdivision (c)(6) pertaining to

certification of plans for postmining

land use by a registered professional

engineer. This deleted subdivision has

no Federal counterparts pertaining to

postmining land uses in general.

Existing subdivisions (c)(7), (8) and (9)

are re-numbered as (c)(4), (5) and (6),

respectively. The Director finds that the

changes described above do not render

section 87.159 less effective than the

Federal Regulations at 30 CFR

816.133(b) and (c)(1).

Section 87.160 Haul Roads and Access

Roads

PADEP is modifying subsection (a) by

eliminating the phrase ‘‘prevent, to the

maximum extent possible’’, and

substituting the words ‘‘control or

prevent’’ prior to ‘‘erosion and

contributions of sediment to streams or

runoff * * *’’. The Director finds that

the changes described above render

subsection (a) substantively identical to

and therefore no less effective than the

corresponding language contained in

the Federal Regulations at 30 CFR

816.150(b)(1).

Section 87.166 Haul Roads and Access

Roads: Restoration

PADEP is modifying this section by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

‘‘as soon as practicable.’’

PADEP is also modifying subdivision

(4) by eliminating the requirement that

roadbeds be plowed. The subdivision

now reads ‘‘Roadbeds shall be ripped or

scarified.’’ The Director finds that the

changes described render section 87.166

substantively identical to and therefore

no less effective than the corresponding

language contained in the Federal

Regulations at 30 CFR 816.150(f) and

(f)(6).

Section 87.173 Support Facilities and

Utility Installations

PADEP is modifying subsection (a) by

eliminating criteria from the opening

paragraph and deleting subdivisions (1)

and (2). The deleted criteria have no

Federal regulatory counterparts. PADEP

is also adding new subdivisions (1) and

(2), which require that support facilities

be located, maintained and used in a

manner that:

(1) Prevents or controls erosion and

siltation, water pollution, and damage to

public or private property.

(2) To the extent possible using the

best technology currently available:

(i) Minimizes damage to fish, wildlife

and related environmental values.

(ii) Minimizes additional

contributions of suspended solids to

streamflow or runoff outside the permit

area. These contributions may not be in

excess of limitations of State or Federal

law.

The Director finds that the changes

described above render section 87.173

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.181(b).

Section 87.174 Steep Slope Operations

PADEP is eliminating subsection (g),

which prohibits construction of unlined

or unprotected drainage channels on

backfilled areas unless approved by the

PADEP as stable and not subject to

erosion. This subsection has no direct

Federal counterpart. The Director finds

that the deletion of subsection (g) does

not render section 87.174 less effective

than the Federal Regulations at 30 CFR

816.107.

Section 87.176 Auger Mining

PADEP is deleting subsection (d),

which prohibits auger mining to the rise

of the coal unless it is demonstrated to

the PADEP’s satisfaction that drainage

from the auger hole will not pose a

pollution threat to surface waters and

will comply with applicable effluent

standards. Subsection (d) has no direct

Federal counterpart. Existing subsection

(e) is re-lettered as (d), and contains

non-substantive changes in wording that

are intended to improve the clarity of

the subsection. The Director finds that

the changes described above do not

render section 87.176 less effective than

the Federal Regulations at 30 CFR

819.11.

Section 87.209 Criteria and Schedule

for Release of Bonds on Pollution

Abatement Areas of Remining

Operations

PADEP is modifying subsection (a),

which pertains to the first phase of

release of the bond for the pollution

abatement area, by raising the amount of

the bond that may be released from 50%

to 60%, where the operator has not

caused degradation of the baseline

pollution load at any time during a

period of six months prior to the bond

release request, and until bond release

is approved as shown by all ground and

surface water monitoring. PADEP is

modifying subsection (b), which

pertains to the second phase of release

of the bond for the pollution abatement

area, by deleting the phrase that allows

the additional release of up to 35% of

the amount of the bond and substituting

the phrase that additional funds can be

released, but that the Department will

retain an amount sufficient to cover the

cost to the Department of reestablishing

vegetation if completed by a third party.

Next, PADEP is also modifying

subdivision (b)(3)(ii)(A)(I) so that an

operator can receive approval for the

second phase of bond release where it

demonstrates that it has not caused

degradation of the baseline pollution

load for a period of twelve months prior

to the application for bond release and

until bond release is approved.

Finally, PADEP is modifying

subdivision (c)(4) pertaining to the

release of the remaining portion of the

bond by deleting the requirement to

measure the applicable liability period

from the date of release of the second

phase of the bond. The Director finds

that the changes described above do not

render section 87.209 less effective than

the general bond release criteria

contained in the Federal regulations at

30 CFR 800.40(c).

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39293

Chapter 88, Anthracite Coal

Section 88.1 Definitions

PADEP is adding, at new subsection

(x), a definition of ‘‘unmanaged natural

habitat.’’ The term is defined as idle

land which does not require a specific

management plan after the reclamation

and revegetation have been

accomplished. Although the Federal

Regulations do not have a direct

counterpart, the Director finds the

State’s definition to be consistent with

the definition of ‘‘undeveloped land or

no current use or land management’’ at

30 CFR 701.5.

Section 88.56 Protection of Public

Parks and Historic Places

PADEP is modifying subsection (a) by

specifying that the permit application

requirements to include protective

measures apply to publicly owned parks

or historic places that are listed on the

National Register of Historic Places, and

that may be adversely affected by the

proposed operations. The Director finds

that the changes described above render

the introductory language of subsection

(a) substantively identical to and

therefore no less effective than the

corresponding introductory language

contained in 30 CFR 780.31(a).

Section 88.83 Sealing of Drilled Holes:

General Requirements

PADEP is modifying subdivision

(a)(2) by requiring that exploration

holes, other drilled or boreholes, wells

or other exposed underground openings

be sealed or otherwise managed in order

to ‘‘minimize,’’ rather than to ‘‘prevent

to the maximum extent possible,’’

damage to the prevailing hydrologic

balance. PADEP is modifying

subdivision (e)(2)(iii) pertaining to

when the Department may approve

lesser distances for the barrier of

undisturbed earth, by deleting the

existing language and adding the

following: ‘‘The measures included in

the permit to minimize damage,

destruction or disruption of services are

implemented.’’ In subsection (e), the

minimum required radius for the solid

barrier of undisturbed earth that must

surround oil and gas wells is now also

being expressed in meters, in addition

to feet. In accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11, the

Director is approving these amendments

to the special permanent program

performance standards for anthracite

mines in Pennsylvania.

Section 88.91 Hydrologic Balance:

General Requirements

PADEP is modifying subsection (a),

which currently requires that surface

activities be planned and conducted to

‘‘prevent to the maximum extent

possible’’ disturbances to the prevailing

hydrologic balance in the permit and

adjacent area. As modified, subsection

(a) will require that surface activities be

planned and conducted to ‘‘minimize’’

such disturbances. This subsection is

further modified by the addition of a

requirement that surface mining

activities shall be planned and

conducted to prevent material damage

to the hydrologic balance outside the

permit area. Finally, the PADEP added

a provision allowing it to require

additional preventative, remedial, or

monitoring measures to assure that

material damage to the hydrologic

balance outside the permit area is

prevented. In accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11, the

Director is approving these amendments

to the special permanent program

performance standards for anthracite

mines in Pennsylvania.

Section 88.96 Hydrologic Balance:

Sediment Control Measures

PADEP is modifying subdivision (l) to

require prevention of contributions of

sediment to streamflow or runoff to the

‘‘extent possible,’’ rather than to the

‘‘maximum extent possible,’’ by deleting

the word ‘‘maximum.’’ PADEP is also

modifying subdivision (3) by changing

the language of the requirement from

‘‘Prevent erosion to the maximum extent

possible’’ to ‘‘Minimize erosion to the

extent possible.’’ In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving these

amendments to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.118 Backfilling and

Grading: Final Slopes

PADEP is modifying subsection (c) by

deleting subdivisions (1) through (4)

enumerating requirements for terraces.

PADEP is also modifying subsection (f)

by eliminating specific grading,

preparation of overburden, and

placement of topsoil requirements

pertaining to placement in a direction

other than parallel when parallel

placement creates hazards to equipment

operators. In accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11, the

Director is approving these amendments

to the special permanent program

performance standards for anthracite

mines in Pennsylvania.

Section 88.133 Postmining Land Use

PADEP is modifying subsection (a) by

deleting the reference to Subchapter E

(relating to coal exploration) and adding

the reference to Subchapter F (relating

to bonding and insurance requirements),

thereby clarifying that affected areas be

restored to conditions capable of

supporting the uses they were capable

of supporting prior to mining, or that

they be restored to higher or better uses,

prior to bond release. PADEP is also

modifying subsection (b) by eliminating

subdivisions (3) and (4) pertaining to

land that has received improper

management or was changed within 5

years of the beginning of mining.

PADEP is also adding new subdivision

(3) as follows: ‘‘The proposed

postmining land use is reasonably likely

to be achieved which may be

demonstrated by one or more of the

following or other similar criteria

* * *.’’ Criteria currently identified in

subdivisions (3) and (4) are re-lettered

as (i) and (ii), respectively, under new

subdivision (3). PADEP is also

eliminating subdivision (5) pertaining to

certification of plans for postmining

land use by a registered professional

engineer. Existing subdivisions (6), (7)

and (8) are re-numbered as (4), (5) and

(6), respectively. In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving these

amendments to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.138 Haul Roads and Access

Roads: General

PADEP is modifying subsection (a) by

eliminating the phrase ‘‘prevent, to the

maximum extent possible,’’ and

substituting the words ‘‘control or

prevent’’ prior to ‘‘erosion and

contributions of sediment to streams or

runoff * * *’’. In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.144 Haul Roads and Access

Roads: Restoration

PADEP is modifying this section by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

39294 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations

‘‘as soon as practicable.’’ In accordance

with section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.191 Hydrologic Balance:

Sediment Control Measures

PADEP is modifying subdivision (l) to

require prevention of contributions of

sediment to streamflow or runoff to the

‘‘extent possible,’’ rather than to the

‘‘maximum extent possible,’’ by deleting

the word ‘‘maximum.’’ PADEP is also

modifying subdivision (3) by changing

the language of the requirement from

‘‘Prevent erosion to the maximum extent

possible’’ to ‘‘Minimize erosion to the

extent possible.’’ In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving these

amendments to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.221 Postmining Land Use

PADEP is modifying subsection (b) by

eliminating subdivisions (3) and (4)

pertaining to land that has received

improper management or was changed

within 5 years of the beginning of

mining. PADEP is also adding new

subdivision (c)(3) as follows: ‘‘The

proposed postmining land use is

reasonably likely to be achieved which

may be demonstrated by one or more of

the following or other similar criteria.’’

Criteria currently identified in

subdivisions (3) and (4) are re-lettered

as (i) and (ii), respectively, under new

subdivision (3).

PADEP is also eliminating

subdivision (5) pertaining to

certification of plans for postmining

land use by a registered professional

engineer. Existing subdivisions (6), (7)

and (8) are re-numbered as (4), (5) and

(6), respectively. In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving these

amendments to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.231 Haul Roads and Access

Roads: General

PADEP is modifying subsection (a) by

eliminating the phrase ‘‘prevent, to the

maximum extent possible,’’ and

substituting the words ‘‘control or

prevent’’ prior to ‘‘erosion and

contributions of sediment to streams or

runoff * * *’’. In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.237 Haul Roads and Access

Roads: Restoration

PADEP is modifying this section by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

‘‘as soon as practicable.’’ In accordance

with section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.283 Sealing of Drilled

Holes: General Requirements

PADEP is modifying subdivision

(e)(2)(iii) pertaining to when the

Department may approve lesser

distances for the barrier of undisturbed

earth, by deleting the existing language

and adding the following: ‘‘The

measures included in the permit to

minimize damage, destruction or

disruption of services are

implemented.’’ In subsection (e), the

minimum required radius for the solid

barrier of undisturbed earth that must

surround oil and gas wells is now also

being expressed in meters, in addition

to feet. In accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11, the

Director is approving these amendments

to the special permanent program

performance standards for anthracite

mines in Pennsylvania.

Section 88.291 Hydrologic Balance:

General Requirements

PADEP is modifying subsection (a),

which currently requires that surface

activities be planned and conducted to

‘‘prevent to the maximum extent

possible’’ disturbances to the prevailing

hydrologic balance in the permit and

adjacent area. As modified, subsection

(a) will require that surface activities be

planned and conducted to ‘‘minimize’’

such disturbances. This subsection is

further modified by the addition of a

requirement that surface mining

activities shall be planned and

conducted to prevent material damage

to the hydrologic balance outside the

permit area. Finally, the PADEP added

a provision allowing it to require

additional preventative, remedial, or

monitoring measures to assure that

material damage to the hydrologic

balance outside the permit area is

prevented. In accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11, the

Director is approving these amendments

to the special permanent program

performance standards for anthracite

mines in Pennsylvania.

Section 88.296 Hydrologic Balance:

Sediment Control Measures

PADEP is modifying subdivision (l) to

require prevention of contributions of

sediment to streamflow or runoff to the

‘‘extent possible,’’ rather than to the

‘‘maximum extent possible,’’ by deleting

the word ‘‘maximum.’’ In accordance

with section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.334 Postdisposal Land Use

PADEP is modifying subsection (a) by

changing the reference from ‘‘this

section (bonds)’’ to ‘‘Chapter 86,

Subchapter F, (relating to bonding and

insurance requirements).’’

PADEP is modifying subsection (b) by

eliminating subdivisions (3) and (4)

pertaining to land that has received

improper management or was changed

within 5 years of the beginning of

mining.

PADEP is also modifying subdivision

(c)(1) by deleting the reference to

‘‘surface mining’’ and substituting ‘‘coal

refuse disposal.’’

PADEP is also adding new

subdivision (c)(3) as follows: ‘‘The

proposed postmining land use is

reasonably likely to be achieved which

may be demonstrated by one or more of

the following or other similar criteria.’’

Criteria currently identified in

subdivisions (3) and (4) are re-lettered

as (i) and (ii) respectively, under new

subdivision (3), and (i) is further

changed by deleting the reference to

‘‘surface mining’’ and substituting ‘‘coal

refuse disposal.’’

PADEP is also eliminating

subdivision (5) pertaining to

certification of plans for postdisposal

land use by a registered professional

engineer. Existing subdivisions (6), (7),

and (8) are re-numbered as (4), (5) and

(6), respectively. In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving these

amendments to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39295

Section 88.335 Haul Roads and Access

Roads: General

PADEP is modifying subsection (a) by

eliminating the phrase ‘‘prevent, to the

maximum extent possible,’’ and

substituting the words ‘‘control or

prevent’’ prior to ‘‘erosion and

contributions of sediment to streams or

runoff. * * *’’ In accordance with

section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.341 Haul Roads and Access

Roads: Restoration

PADEP is modifying this section by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

‘‘as soon as practicable.’’ In accordance

with section 529(a) of SMCRA and the

Federal regulations at 30 CFR 820.11,

the Director is approving this

amendment to the special permanent

program performance standards for

anthracite mines in Pennsylvania.

Section 88.492 Minimum

Requirements For Reclamation and

Operation Plan

PADEP is modifying subdivision (f)(1)

by specifying that the permit

application requirements to include

protective measures apply to publicly

owned parks or historic places that are

listed on the National Register of

Historic Places, and that may be

adversely affected by the proposed

operations. The Director finds that the

changes described above render the

introductory language of subsection (a)

substantively identical to and therefore

no less effective than the corresponding

introductory language contained in 30

CFR 780.31(a).

Section 88.509 Criteria and Schedule

for Release of Bonds on Pollution

Abatement Areas of Remining

Operations

PADEP is modifying subsection (a),

which pertains to the first phase of

release of the bond for the pollution

abatement area, by raising the amount of

the bond that may be released from 50%

to 60%, where the operator has not

caused degradation of the baseline

pollution load at any time during a

period of six months prior to the bond

release request, and until bond release

is approved as shown by all ground and

surface water monitoring. PADEP is

modifying subsection (b), which

pertains to the second phase of release

of the bond for the pollution abatement

area, by deleting the phrase that allows

the additional release of up to 35% of

the amount of the bond and substituting

the phrase that additional funds can be

released, but that the Department will

retain an amount sufficient to cover the

cost to the Department of reestablishing

vegetation if completed by a third party.

Next, PADEP is also modifying

subdivision (b)(3)(ii)(A)(I) so that an

operator can receive approval for the

second phase of bond release where it

demonstrates that it has not caused

degradation of the baseline pollution

load for a period of twelve months prior

to the application for bond release and

until bond release is approved.

Finally, PADEP is modifying

subdivision (c)(4) pertaining to the

release of the remaining portion of the

bond by deleting the requirement to

measure the applicable liability period

from the date of release of the second

phase of the bond. The Director finds

that the changes described above do not

render section 88.509 less effective than

the general bond release criteria

contained in the Federal regulations at

30 CFR 800.40(c).

Chapter 89, Underground Mining of

Coal and Coal Preparation Facilities

Section 89.38 Archaeological and

Historical Resources and Public Parks

PADEP is changing the title of this

section to Archaeological and historical

resources, public parks and publicly

owned parks.

PADEP is modifying subsection (b) by

specifying that the permit application

requirements to include protective

measures apply to publicly owned parks

or historic places that are listed on the

National Register of Historic Places, and

that may be adversely affected by the

proposed operations. The Director finds

that the changes described above render

the introductory language of subsection

(b) substantively identical to and

therefore no less effective than the

corresponding introductory language

contained in 30 CFR 784.17(a).

Section 89.65 Protection of Fish,

Wildlife and Related Environmental

Values

PADEP is modifying this section to

require a person conducting surface

mining activities to, to the extent

possible using the best technology

currently available, minimize

disturbances and adverse impacts on

fish, wildlife and related environmental

values, locate and operate haul and

access roads to avoid or minimize

impacts to fish and wildlife or other

protected species, and to avoid

disturbance to, enhance where

practicable, or restore, habitats of

unusually high value for fish and

wildlife. Prior to these proposed

amendments, this section required that

activities use the best technology

currently available to prevent such

disturbances and adverse impacts. The

Director finds that the changes

described above render section 89.65

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 817.97(a) and

(e)(2), and at the portion of 30 CFR

817.97(f) that pertains to habitats of

unusually high value.

Section 89.67 Support Facilities

PADEP is modifying subsection (a) by

eliminating criteria from the opening

paragraph and deleting subdivisions (1)

and (2). The deleted criteria have no

Federal regulatory counterparts. PADEP

is also adding new subdivisions (1) and

(2), which require that support facilities

be located, maintained and used in a

manner that:

(1) Prevents or controls erosion and

siltation, water pollution, and damage to

public or private property.

(2) To the extent possible using the

best technology currently available:

(i) Minimizes damage to fish, wildlife

and related environmental values.

(ii) Minimizes additional

contributions of suspended solids to

streamflow or runoff outside the permit

area. These contributions may not be in

excess of limitations of State or Federal

law.

The Director finds that the changes

described above render section 89.67

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 817.181(b).

Section 89.82 Protection of Fish,

Wildlife and Related Environmental

Values

PADEP is modifying this section to

require a person conducting surface

mining activities to, to the extent

possible using the best technology

currently available, minimize

disturbances and adverse impacts on

fish, wildlife and related environmental

values. Prior to this proposed

amendment, this section required that

activities use the best technology

currently available to prevent such

disturbances and adverse impacts. The

Director finds that the changes

described above render section 89.82

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 817.97(a).

39296 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations

PADEP is also modifying subsections

(b) and (e) by changing the name of the

Fish Commission to the Fish and Boat

Commission. As modified, subsections

(b) and (e) remain substantively

identical to and therefore no less

effective than the corresponding

language contained in the Federal

regulations at 30 CFR 817.97(b).

Section 89.87 Regrading or Stabilizing

Rills and Gullies

PADEP is eliminating the existing

subsections and substituting the

following new subsections:

(a) Exposed surface areas shall be

protected and stabilized to effectively

control erosion and air pollution

attendant to erosion.

(b) Rills and gullies, which form in

areas that have been regraded and

topsoiled and which do one of the

following shall be filled, regraded and

otherwise stabilized:

(1) Disrupt the approved postmining

land use or the reestablishment of the

vegetative cover.

(2) Cause or contribute to a violation

of water quality standards for receiving

streams.

(c) For the areas listed in subsection

(b), the topsoil shall be replaced and the

areas shall be reseeded or replanted.

The Director finds that the changes

described above are substantively

identical to and therefore no less

effective than the Federal Regulations at

30 CFR 817.95.

Section 89.88 Postmining Land Use

PADEP is modifying subsection (b) by

eliminating subdivisions (2) and (3)

pertaining to land that has received

improper management or was changed

within 5 years of the beginning of

mining. These deleted subdivisions

have no Federal counterparts.

PADEP is also adding new

subdivision (c)(2) as follows: ‘‘The

proposed postmining land use is

reasonably likely to be achieved which

may be demonstrated by one or more of

the following or other similar criteria.’’

The criteria, which are part of the

existing program, are now included in

subdivision (c)(2), following the abovequoted introductory sentence.

PADEP is also eliminating

subdivision (c)(3) pertaining to

certification of plans for postmining

land use by a registered professional

engineer. This deleted subdivision has

no Federal counterpart. Existing

subdivisions (c)(4), (5), (6) and (7) are

re-numbered as (c)(3), (4), (5) and (6),

respectively.

The Director finds that the changes

described above do not render section

89.88 less effective than the Federal

Regulations at 30 CFR 817.133(b) and

(c)(1).

Section 89.90 Restoration of Roads

PADEP is modifying subsection (a) by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

‘‘as soon as practicable.’’

PADEP is also modifying subdivision

(a)(4) by eliminating the requirement

that roadbeds be plowed. The

subdivision now reads ‘‘Roadbeds shall

be ripped or scarified.’’ The Director

finds that the changes described render

section 89.90 substantively identical to

and therefore no less effective than the

corresponding language contained in

the Federal Regulations at 30 CFR

817.150(f) and (f)(6).

Chapter 90, Coal Refuse Disposal

Section 90.1 Definitions

PADEP is adding, at new subsection

(x), a definition of ‘‘unmanaged natural

habitat.’’ The term is defined as idle

land which does not require a specific

management plan after the reclamation

and revegetation have been

accomplished. Although the Federal

Regulations do not have a direct

counterpart, the Director finds the

State’s definition to be consistent with

the definition of ‘‘undeveloped land or

no current use or land management’’ at

30 CFR 701.5.

Section 90.40 Protection of Public

Parks and Historic Places

PADEP is modifying subsection (a) by

specifying that the permit application

requirements to include protective

measures apply to publicly owned parks

or historic places that are listed on the

National Register of Historic Places, and

that may be adversely affected by the

proposed operations. The Director finds

that the changes described above render

the introductory language of subsection

(a) substantively identical to and

therefore no less effective than the

corresponding introductory language

contained in 30 CFR 780.31(a).

Section 90.93 Casing and Sealing of

Drilled Holes and Underground

Workings.

PADEP is modifying subsection (d) by

deleting the reference to the

requirements of the Gas Operations,

Well-Drilling, Petroleum and Coal

Mining Act (52 P.S. §§ 2101–2602) and

adding a reference to the Oil and Gas

Act (58 P.S. §§ 601.101–601.605). While

this subsection has no precise Federal

counterpart, the Director finds that the

change in statutory cross-references

does not render it inconsistent with the

Federal regulations at 30 CFR 816.13.

PADEP is modifying subdivision

(e)(2)(iii) pertaining to when the

Department may approve lesser

distances for the barrier of undisturbed

earth, by deleting the existing language

and adding the following: ‘‘The

measures included in the permit to

minimize damage, destruction or

disruption of services pursuant to

90.147(b) are implemented.’’ At

subsection (e), the minimum required

radius for the solid barrier of

undisturbed earth that must surround

oil and gas wells is now also being

expressed in meters, in addition to feet.

The Director finds that, while

subdivision (e)(2)(iii) has no direct

Federal counterpart, the proposed

amendments thereto do not render it

inconsistent with the Federal

Regulations at 30 CFR 816.13.

Section 90.97 Topsoil: Removal

PADEP is modifying subsection (c) by

including a metric conversion figure, in

centimeters, which corresponds to the

12 inch topsoil thickness threshold,

which if not in existence triggers the

requirement to remove, segregate,

conserve and replace a twelve inch layer

that includes topsoil and other

unconsolidated materials as the final

surface soil layer. A centimeter

measurement is also added for the 12-

inch thickness threshold for topsoil and

unconsolidated material combined,

which if not in existence triggers the

requirement to remove, segregate,

conserve and replace the topsoil and all

unconsolidated materials as the final

surface soil layer. These changes are

nonsubstantive in nature and do not

require OSM approval.

Subsection (f) is amended, at the end

of the second sentence, by deleting the

word ‘‘subsoil’’ and replacing it with the

word ‘‘topsoil.’’ The Director finds that

this change renders section 90.97

substantively identical to and therefore

no less effective than the counterpart

language contained in the Federal

Regulations at 30 CFR 816.22(b).

Section 90.101 Hydrologic Balance:

General Requirements

PADEP is modifying subsection (a),

which currently requires that surface

activities be planned and conducted to

‘‘prevent to the maximum extent

possible’’ disturbances to the prevailing

hydrologic balance in the permit and

adjacent area. As modified, subsection

(a) will require that surface activities be

planned and conducted to ‘‘minimize’’

such disturbances. This subsection is

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39297

further modified by the addition of a

requirement that surface mining

activities shall be planned and

conducted to prevent material damage

to the hydrologic balance outside the

permit area. Finally, the PADEP added

a provision allowing it to require

additional preventative, remedial, or

monitoring measures to assure that

material damage to the hydrologic

balance outside the permit area is

prevented. The Director finds that the

changes described above render

subsection (a) substantively identical to

and therefore no less effective than the

corresponding language contained in

the Federal Regulations at 30 CFR

816.41(a).

Section 90.106 Hydrologic Balance:

Erosion and Sedimentation Control

PADEP is modifying subdivision (a)(l)

to require prevention of contributions of

sediment to streamflow or runoff to the

‘‘extent possible,’’ rather than to the

‘‘maximum extent possible,’’ by deleting

the word ‘‘maximum.’’ The Director

finds that this change renders

subdivision (a)(1) substantively

identical to and therefore no less

effective than the corresponding

language contained in the Federal

Regulations at 30 CFR 816.45(a)(1).

PADEP is also modifying subdivision

(3) by changing the language of the

requirement from ‘‘Prevent erosion to

the maximum extent possible’’ to

‘‘Minimize erosion to the extent

possible.’’ The Director finds that this

change renders subdivision (3)

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.45(a)(3).

Section 90.134 Haul Roads and Access

Roads: General

PADEP is modifying subsection (a) by

eliminating the phrase ‘‘prevent, to the

maximum extent possible’’, and

substituting the words ‘‘control or

prevent’’ prior to ‘‘contributions of

sediment to streams or runoff * * *’’.

The Director finds that the changes

described above render subsection (a)

substantively identical to and therefore

no less effective than the corresponding

language contained in the Federal

Regulations at 30 CFR 816.150(b)(1),

with one exception. In amending this

subsection, the PADEP deleted any

requirement with respect to erosion.

Therefore, the Director is requiring that

Pennsylvania amend its performance

standards for coal refuse disposal to

require that haul roads and access roads

be designed, constructed and

maintained to control or prevent

erosion.

Section 90.140 Haul Roads and Access

Roads: Restoration

PADEP is modifying this section by

deleting the requirement that roads not

to be retained for the approved

postmining land use be reclaimed

‘‘immediately’’ after the road is no

longer needed for the associated surface

mining activities, and substituting a

requirement that such reclamation occur

‘‘as soon as practicable.’’

PADEP is also modifying subdivision

(4) by eliminating the requirement that

roadbeds be plowed. The subdivision

now reads ‘‘Roadbeds shall be ripped or

scarified.’’ The Director finds that the

changes described render section 90.140

substantively identical to and therefore

no less effective than the corresponding

language contained in the Federal

Regulations at 30 CFR 816.150(f) and

(f)(6).

Section 90.147 Support Facilities and

Utility Installations

PADEP is modifying subsection (a) by

eliminating criteria from the opening

paragraph and deleting subdivisions (1)

and (2). The deleted criteria have no

Federal regulatory counterparts. The

criteria to locate, maintain and use

buildings is now included in new

subdivisions (1), (2), (2)(i) and (2)(ii) as

follows:

(1) Prevents or controls erosion and

siltation, water pollution, and damage to

public or private property.

(2) To the extent possible using the

best technology currently available:

(i) Minimizes damage to fish, wildlife

and related environmental values.

(ii) Minimizes additional

contributions of suspended solids to

streamflow or runoff outside the permit

area. These contributions may not be in

excess of limitations of State or Federal

law.

The Director finds that the changes

described above render section 90.147

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.181(b).

Section 90.150 Protection of Fish,

Wildlife and Related Environmental

Values

PADEP is modifying this section to

require a person conducting surface

mining activities to, to the extent

possible using the best technology

currently available, minimize

disturbances and adverse impacts on

fish, wildlife and related environmental

values, locate and operate haul and

access roads to avoid or minimize

impacts to fish and wildlife or other

protected species, and to avoid

disturbance to, enhance where

practicable, or restore, habitats of

unusually high value for fish and

wildlife. Prior to these proposed

amendments, this section required that

activities use the best technology

currently available to prevent such

disturbances and adverse impacts. The

Director finds that the changes

described above render section 90.150

substantively identical to and therefore

no less effective than the Federal

Regulations at 30 CFR 816.97(a) and

(e)(2), and to the portion of 30 CFR

816.97(f) that pertains to habitats of

unusually high value. PADEP is also

modifying subsections (b) and (d) by

changing the name of the Fish

Commission to the Fish and Boat

Commission. As modified, subsections

(b) and (d) remain substantively

identical to and therefore no less

effective than the corresponding

language contained in the Federal

regulations at 30 CFR 816.97(b).

Section 90.166 Postdisposal Land Use

PADEP is modifying subsection (a) by

changing the reference from

‘‘Subchapter E (relating to coal

exploration)’’ to ‘‘Subchapter F (relating

to bonding and insurance

requirements).’’ The Director finds that

this change does not render subsection

(a) less effective than the corresponding

Federal regulations at 30 CFR

816.133(a).

PADEP is modifying subsection (b) by

eliminating subdivisions (3) and (4)

pertaining to land that has received

improper management or was changed

within 5 years of the beginning of

mining. These deleted subdivisions

have no Federal counterparts.

PADEP is also adding new

subdivision (c)(3) as follows: ‘‘The

proposed postmining land use is

reasonably likely to be achieved which

may be demonstrated by one or more of

the following or other similar criteria

* * *.’’ Criteria currently identified in

subdivisions (c)(3), (4), and (5) are relettered as (i), (ii) and (iii) respectively,

under new subdivision (c)(3).

PADEP is also eliminating

subdivision (c)(6) pertaining to

certification of plans for postdisposal

land use by a registered professional

engineer. This deleted subdivision has

no Federal counterpart. Existing

subdivisions (c)(7), (8) and (9) are renumbered as (c)(4), (5) and (6),

respectively. The Director finds that the

changes described above do not render

section 90.166 less effective than the

Federal Regulations at 30 CFR

816.133(b) and (c)(1).

39298 Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations

IV. Summary and Disposition of

Comments

Federal Agency Comments

On December 3, 1999, we asked for

comments from various Federal

agencies who may have an interest in

the Pennsylvania amendment.

(Administrative Record Number

849.03). We solicited comments in

accordance with section 503(b) of

SMCRA and 30 CFR 732.17(h)(11)(i) of

the Federal regulations. Two offices of

the Mine Safety and Health

Administration (MSHA) responded in

letters dated December 22, 1999 and

December 28, 1999 (Administrative

Record Numbers 849.06 and 849.07,

respectively). The only comment made

noted that the minimum static safety

factor of 1.3 is included in PA Chapters

87 and 88 for outslopes of a terrace

greater than 1v:2h–50%, whereas the

Federal Regulations at 30 CFR 77.215(h)

specify that the minimum factor should

be 1.5 for refuse piles. In response, the

Director notes that neither of the

Pennsylvania provisions cited by MSHA

pertains to refuse piles. Rather, the

provisions, at sections 87.144 and

88.118, contain general requirements for

backfilling and grading of bituminous

and anthracite surface coal mining

operations, respectively. Use of the 1.3

minimum static safety factor for such

operations is also provided for in the

Federal regulations at 30 CFR

816.102(a)(3). Regardless, Pennsylvania

is deleting both of these provisions in

this amendment, as discussed above.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). The

Director has determined that this

amendment contains no such provisions

and that EPA concurrence is therefore

unnecessary.

OSM did, however request comments

from EPA, and EPA responded in its

letter dated December 13, 1999

(Administrative Record Number

849.04). EPA commented that the

amendment contained slight wording

changes that appeared to lessen the

emphasis on preventing water quality

impacts. As examples, EPA noted that

Section 88.335, Haul Roads and Access

Roads, and Section 88.191, Hydrologic

Balance:Sediment Control Measures,

were revised to require that erosion be

controlled or prevented (88.335) and

minimized to the extent possible

(88.191), rather than prevented to the

maximum extent possible, as both

sections previously required. EPA also

noted, however, that its understanding

is that the actual requirements for

erosion and sedimentation control and

preventing water quality impacts will

not be reduced. As explained above in

the Director’s Findings, OSM approved

both sections in accordance with section

529(a) of SMCRA and the Federal

regulations at 30 CFR 820.11.

Public Comments

No comments were received in

response to our request for public

comments.

V. Director’s Decision

Based on the above findings, we are

approving the amendments to the

Pennsylvania regulatory program. The

required amendment at 30 CFR

938.16(ll) is being removed. However,

the Director is requiring that

Pennsylvania amend its performance

standards for coal refuse disposal to

require that haul roads and access roads

be designed, constructed and

maintained to control or prevent

erosion.

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.

VI. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulations.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 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

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed state regulatory program

provision does not constitute a major

federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget 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

Federal Register / Vol. 65, No. 123 / Monday, June 26, 2000 / Rules and Regulations 39299

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.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S. based enterprises to

compete with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation was not considered a major

rule.

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: June 12, 2000.

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:

§ 938.15 Approval of Pennsylvania

regulatory program amendments.

Original amendment submission

date Date of final publication Citation/description

*******

November 30, 1999 ....................... June 26, 2000 ................................ 25 Pa. Code 86.2, 86.37, 86.40, 86.64, 86.70, 86.132–86.134,

86.174, 87.1, 87.77, 87.93, 87.97, 87.101, 87.106, 87.126, 87.127,

87.138, 87.144, 87.146, 87.159, 87.160, 87.166, 87.173, 87.174,

87.176, 87.209, 88.1, 88.56, 88.83, 88.91, 88.96, 88.118, 88.133,

88.138, 88.144, 88.191, 88.221, 88.231, 88.237, 88.283, 88.291,

88.296, 88.334, 88.335, 88.341, 88.492, 88.509, 89.38, 89.65,

89.67, 89.82, 89.87, 89.88, 89.90, 90.1, 90.40, 90.93, 90.97,

90.101, 90.106, 90.134, 90.140, 90.147, 90.150, 90.166.

3. Section 938.16 is amended by

removing and reserving paragraph (ll)

and by adding paragraph (gggg) as

follows:

§ 938.16 Required regulatory program

amendments.

* * * * *

(ll) [Reserved]

* * * * *

(gggg) By August 25, 2000,

Pennsylvania shall amend its

performance standards for coal refuse

disposal, or provide a written

description of an amendment together

with a timetable for enactment which is

consistent with established

administrative or legislative procedures

in the state, to require that haul roads

and access roads be designed,

constructed and maintained to control

or prevent erosion.

[FR Doc. 00–16087 Filed 6–23–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01–00–145]

RIN 2115–AA97

Safety Zone: Fireworks Display, Pier

54, Hudson River, New York

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is

establishing a temporary safety zone for

a fireworks display located on the

Hudson River. This action is necessary

to provide for the safety of life on

navigable waters during the event. This

action is intended to restrict vessel

traffic in a portion of the Hudson River.

DATES: This rule is effective from 10

p.m. (e.s.t.), until 11:30 p.m. (e.s.t.) on

June 26, 2000.

ADDRESSES: Comments and material

received from the public, as well as

documents indicated in this preamble as

being available in the docket, are part of

docket (CGD01–00–145) and are

available for inspection or copying at

Coast Guard Activities New York, 212

Coast Guard Drive, room 204, Staten

Island, New York 10305, between 8 a.m.

and 3 p.m., Monday through Friday,

except Federal holidays. The telephone

number is (718) 354–4012.

FOR FURTHER INFORMATION CONTACT:

Lieutenant M. Day, Waterways

Oversight Branch, Coast Guard

Activities New York (718) 354–4012.

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of

proposed rulemaking (NPRM) for this

regulation. Under 5 U.S.C. 553(b)(8), the

Coast Guard finds that good cause exists

for not publishing an NPRM. Good

cause exists for not publishing an NPRM

due to the date the Application for

Approval of Marine Event was received,

there was insufficient time to draft and

publish an NPRM for the event. Further,

it is a local, community supported event

with minimal impact on the waterway,

vessels may still transit through the