[Federal Register Volume 62, Number 216 (Friday, November 7, 1997)]
[Rules and Regulations]
[Pages 60169-60177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29475]



[[Page 60169]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-113-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving, with certain exceptions, a proposed 
amendment to the Pennsylvania regulatory program (hereinafter referred 
to as the ``Pennsylvania program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Pennsylvania proposed revisions 
and additions to its rules pertain to: surface and underground mining 
definitions, incidental coal extraction, permit approval, permit 
renewal, coal exploration, bonding, permit applications, operation and 
reclamation plans, environmental protection standards, anthracite bank 
removal and reclamation standards, refuse removal standards, coal 
preparation facilities, underground mining erosion and sedimentation 
control standards, impoundments, subsidence control, and coal refuse 
disposal permit applications and performance standards. The amendment 
is intended to revise the Pennsylvania program to be consistent with 
the corresponding Federal regulations.

EFFECTIVE DATE: November 7, 1997.

FOR FURTHER INFORMATION CONTACT:
Robert J. Biggi, Director, Harrisburg Field Office, Harrisburg 
Transportation Center, Third Floor, Suite 3C, 4th and Market Streets, 
Harrisburg, PA 17101. Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Pennsylvania Program

    On July 31, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. Background information on the 
Pennsylvania program, including the Secretary's findings, and the 
disposition of comments, and the conditions of approval can be found in 
the July 31, 1982, Federal Register (47 FR 33050). Subsequent actions 
concerning conditions of approval and program amendments can be found 
at 30 CFR 938.11, 938.12, 938,15, and 938.16.

II. Submission of the Proposed Amendment

    By letter dated January 23, 1996 (Administrative Record No. PA-
838.00), Pennsylvania submitted a proposed amendment to its program 
pursuant to SMCRA in response to the required program amendments at 30 
CFR 938.16 (g) through (ii), with the exception of (h). Pennsylvania 
proposed to revise sections 86-90 of its Coal Mining Regulations 
(Regulatory Reform III).
    OSM announced receipt of the proposed amendment in the February 28, 
1996 Federal Register (61 FR 7446), and in the same document opened the 
public comment period and provided an opportunity for a public hearing 
on the adequacy of the proposed amendment. The public comment period 
closed on March 29, 1996.
    During its review of the amendment, OSM identified concerns 
relating to the following sections of Pennsylvania's regulations:

------------------------------------------------------------------------
                  Section                               Topic           
------------------------------------------------------------------------
86.5(i)3..................................  Administrative Review.      
86.5(m)...................................  Notification.               
No PA Counterpart.........................  Public Comment Period,      
                                             Inspections, Administrative
                                             Review.                    
86.55(j)..................................  Permit Renewal Applications.
87.108(c), 89.24(c), 90.108(c)............  Siltation Structures.       
88.105(b), 88.106(a), 88.201(b),            Water Monitoring.           
 88.202(a), 88.305(b), 88.306(a).                                       
88.321, 90.133............................  Noncoal Waste Disposal.     
87.125(a).................................  Preblast Survey.            
87.127(i).................................  Vibration Limit.            
No PA Counterpart.........................  Blast Monitoring.           
87.124(b).................................  Blasting Schedule.          
No PA Counterpart.........................  Blast Design.               
87.127(f).................................  Flyrock                     
87.129(4).................................   Blasting.                  
------------------------------------------------------------------------

    OSM notified Pennsylvania of these concerns by letter dated 
February 21, 1997. By letter dated March 28, 1997, Pennsylvania 
responded to OSM's concerns by submitting additional explanatory 
information and by proposing to make certain revisions to its 
regulations during its submission of Regulatory Reform IV. Because the 
additional information was explanatory in nature and did not constitute 
a major revision of the original submission, OSM did not reopen the 
comment period.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment. Revisions not specifically discussed below concern 
nonsubstantive wording changes, or revised cross-references and 
paragraph notations to reflect organizational changes resulting from 
this amendment.

A. Revisions to Pennsylvania's Regulations That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

--------------------------------------------------------------------------------------------------------------------------------------------------------
              State regulation                                     Subject                                         Federal counterpart                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
86.1.......................................  Definition--``MSHA''..............................  30 CFR 701.5.                                          
86.1.......................................  Definitions--``Cumulative Measurement Period,''...  .......................................................
                                             ``Cumulative Production,'' ``Cumulative Revenue,''  30 CFR 702.5.                                          
                                              ``Mining Area,'' ''Other Minerals.''.                                                                     
86.5(a)-(e)................................  Extraction of Coal................................  30 CFR 702.11 (a), (b), (d).                           
86.5(f)....................................  Public Availability of Information................  30 CFR 702.13.                                         
86.5(g)....................................  Application Requirements..........................  30 CFR 702.12.                                         
86.5(h) (excluding (h)(2)).................  Exemption Requirements............................  30 CFR 702.11(c), 702.14.                              
86.5(i)(1), (2)............................  Exemption Determination...........................  30 CFR 702.11(e)(1), (2).                              
86.5(j)(1)-(3).............................  Conditions of Exemption...........................  30 CFR 702.15(a)-(c).                                  
86.5(j)(4).................................  Reports...........................................  30 CFR 702.5(a)(2), 702.18.                            
86.5(k)....................................  Stockpiling.......................................  30 CFR 702.16.                                         

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86.5(l)....................................  Compliance Review.................................  30 CFR 702.17(a).                                      
86.5(n)....................................  Revocation........................................  30 CFR 702.17(c)(3).                                   
86.5(o)....................................  Enforcement.......................................  30 CFR 702.17(c)(2).                                   
86.55(g)(6)................................  Permit Renewal....................................  30 CFR 774.15(c)(iv).                                  
86.133(g)..................................  Coal Exploration..................................  30 CFR 815.15(g).                                      
86.156(b)..................................  Bonds.............................................  30 CFR 800.16(e)(1).                                   
86.175(b)(3)...............................  Bond Release......................................  30 CFR 800.40(c)(2).                                   
86.182(e)..................................  Bond Forfeiture...................................  30 CFR 800.50(b)(2).                                   
86.182(f)(1)...............................  Bond Forfeiture...................................  30 CFR 800.50(d)(1).                                   
87.46(b)(3)(i).............................  Surface Mines--Surface Water......................  30 CFR 780.21(b)(2).                                   
87.69(b)(4)................................  Hydrologic Balance................................  30 CFR 780.21(i), (j).                                 
87.127(e)(2)...............................  Explosives--Surface Blasting......................  30 CFR 816.67(b)(1).                                   
87.127(j)..................................  Explosives--Surface Blasting......................  30 CFR 816.67(d)(3).                                   
87.127(n)..................................  Explosives--Surface Blasting......................  30 CFR 816.67(d)(2)(i).                                
87.127(p)..................................  Explosives--Surface Blasting......................  30 CFR 816.67(d)(4).                                   
87.131(n)..................................  Disposal of Excess Spoil..........................  30 CFR 816.71(h)(2).                                   
87.135(a)..................................  Protection of Underground Mining..................  30 CFR 816.79.                                         
87.138(c)..................................  Protection of Fish, Wildlife and Related            30 CFR 816.97(c).                                      
                                              Environmental Values.                                                                                     
88.24(b)(4)(i).............................  Anthracite Coal Mining............................  30 CFR 780.22(b)(2)(ii), (iii).                        
88.24(b)(4)(ii)............................  Anthracite Coal Mining............................  30 CFR 780.22(d).                                      
88.26(b)(2)(i).............................  Anthracite--Surface Water.........................  30 CFR 780.21(b)(2).                                   
88.49(b)(2)................................  Anthracite--Hydrologic Balance....................  30 CFR 780.21(i).                                      
88.54......................................  Anthracite-Protection of Underground Mining.......  30 CFR 816.79.                                         
88.61(b)(1)................................  Anthracite-Prime Farmlands........................  30 CFR 785.17(c)(1).                                   
88.284.....................................  Anthracite-Sealing of Drilled Holes and             30 CFR 816.14.                                         
                                              Exploratory Openings.                                                                                     
88.491(d)(2)(A)............................  Anthracite--Surface Water.........................  30 CFR 780.21(b)(2).                                   
88.491(j)..................................  Anthracite--Permit Applications...................  30 CFR 780.15(c).                                      
88.492(d)(2)(iii)..........................  Anthracite-Ground and Surface Water Monitoring      30 CFR 780.21(i)(1), (j)(2).                           
                                              Plans.                                                                                                    
89.34(a)(1)(iii), (2)(i), (2)(ii)..........  Hydrology-Underground Mining And Coal Preparation   30 CFR 784.14(h), (b)(2), (i).                         
                                              Facilities.                                                                                               
89.82(d)...................................  Performance Standards.............................  30 CFR 817.97(c).                                      
89.172(b)..................................  Coal Preparation..................................  30 CFR 785.21(c).                                      
90.14(b)(3)(i).............................  Coal Refuse--Surface Water........................  30 CFR 780.21(b)(2).                                   
90.35(b)(3)................................  Ground and Surface Water Monitoring Plans.........  30 CFR 780.21(i)(1), (j)(2).                           
90.150(c)..................................  Protection of Fish, Wildlife and Related            30 CFR 816.97(c).                                      
                                              Environmental Values.                                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Because the above proposed revisions re identical in meaning to the 
corresponding Federal regulations, the Director finds that 
Pennsylvania's proposed rules are no less effective than the Federal 
rules.

B. Revisions to Pennsylvania's Regulations That Are Not Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

1. 86.1/87.1--Definitions
    Pennsylvania is proposing to amend the definition of ``surface 
mining activities'' to include the construction of a road or similar 
disturbance for any purpose related to a surface mining activity, 
including that of a moving or walking dragline or other equipment, or 
for the assembly or disassembly or staging of equipment. The Director 
finds that definition proposed by Pennsylvania is no less effective 
than the Federal definition at 30 CFR 700.5. The proposed revision also 
satisfies the required amendment at 30 CFR 938.16(g) which required 
Pennsylvania to amend its definition to make it clear that the 
construction of any road, or similar disturbance, shall be deemed a 
surface mining activity and will be regulated.
2. 86.5(h)(2)--Extraction of Coal
    Pennsylvania is proposing to require in this subsection that no 
request for an exemption will be approved unless the applicant can show 
that the coal to be produced will be from the geological stratum above 
the deepest stratum from which other minerals are extracted for 
purposes of bona fide sale or reasonable commercial use. The 
corresponding Federal regulation, at 30 CFR 702.14(a)(2), contains the 
same requirement, except that it allows the exemption to be approved if 
the coal to be produced is in the geological stratum lying above or 
below the deepest stratum from which other minerals are extracted. 
Because Pennsylvania limits the exemption allowance to where the coal 
is produced above the deepest stratum from which other minerals are 
extracted, it is more restrictive, and therefore more stringent, than 
its Federal counterpart. In accordance with section 505(b) of SMCRA (30 
U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.5(h)(2) 
is not inconsistent with SMCRA.
3. 86.5(I)(3)--Exemption Determinations
    Pennsylvania is proposing to permit a person who is adversely 
affected by the determination of exemption to file an appeal as 
provided by Chapter 21 of the regulations. The proposed regulation is 
substantively identical to the Federal regulations at 30 CFR 
702.11(f)(1). However, the Federal regulations at 30 CFR 702.11(f)(2) 
specify that such appeals shall not suspend the effect of that 
determination. In its letter dated March 28, 1997, Pennsylvania stated 
that appeals to the Environmental Hearing Board (EHB) under the 
provisions of Chapter 21 do not stay the effect of the Department of 
Environmental Protection`s (Department) actions. If an appellant wishes 
to stay the effect of such an action, the appellant must petition the 
EHB which, in turn, must issue a supersedeas. The Director finds the 
proposed Pennsylvania regulation no less effective than the Federal 
regulations, since Pennsylvania law provides, generally, that an appeal 
does not, by itself, suspend the effect of the decision appealed from.
4. 86.5(m)--Notification
    Pennsylvania is proposing to require that if the Department 
believes that a specific mining area was not exempt at the end of the 
previous reporting period, or is not exempt or cannot satisfy the 
exemption criteria at the end of the

[[Page 60171]]

current reporting period, it will notify the operator that the 
exemption may be revoked and explain the reasons. The exemption will be 
revoked unless the operator demonstrates within 30 days that the area 
in question should continue to be exempt. The operator and interested 
parties will be notified immediately of the revocation. The Federal 
regulations at 30 CFR 702.17(b) and (c)(1) have the same requirements. 
However, the Federal regulations also specify that if a decision is 
made not to revoke an exemption, the regulatory authority shall 
immediately notify the operator and intervenors. The Director finds 
that the proposed Pennsylvania regulation is less effective than the 
Federal regulations because it lacks this notification requirement. He 
is, therefore, requiring that Pennsylvania amend its program to include 
the notification requirement to operators and intervenors of a 
Department's decision not to revoke an exemption.
5. 86.55(i),(j)--Permit Renewals
    Pennsylvania is proposing at subsection (i) to allow a permittee to 
provide a written notice to the Department in lieu of a complete 
application if, after the permit expiration date, the remaining surface 
mining activities will consist solely of reclamation. The Department 
may renew the permit conditioned upon only reclamation activities 
occurring. A new permit is required if the permittee resumes coal 
extraction, preparation, or refuse disposal. At subsection (j), 
Pennsylvania is proposing to require that a permittee submit a renewal 
application if he has provided written notice in accordance with the 
terms of subsection (i) and determines prior to the permit expiration 
date that coal extraction, preparation, or refuse disposal will occur 
or treatment facilities will be required after the permit expiration 
date. The Federal regulations at 30 CFR 773.11(a) allow a permittee to 
forego permit renewal where only reclamation activities remain to be 
performed, but require that permit obligations continue until 
reclamation is complete. Subsection (i), as proposed, contains a 
similar provision, in that it provides that the permit will be renewed 
even where only reclamation obligations remain, but requires only a 
notice of renewal in such instances, rather than a complete renewal 
application, with public notice. Therefore, subsection (i) is no less 
effective than 30 CFR 773.11(a). However, the Federal regulations at 30 
CFR 774.15(b)(1) require that an application for permit renewal be 
submitted at least 120 days before expiration of the existing permit 
term. Pennsylvania's proposed revision at subsection (j) does not 
contain this provision. Therefore, the Director finds that it is less 
effective than the Federal regulations, and he is requiring that 
Pennsylvania amend its regulation to include the 120 day submittal 
requirement.
6. 86.134(8)--Coal Exploration
    Pennsylvania proposes to require that each coal exploration hole, 
borehole, well, or other underground opening created or encountered by 
exploration must meet the requirements of its program relating to 
preventing discharges from underground mines, and closing of 
underground mine openings. The Federal counterpart regulation, at 30 
CFR 815.15(g), contains these same requirements, except that it applies 
only to holes, etc., which are created during coal exploration, and not 
to holes encountered during coal exploration. As such, Pennsylvania's 
proposal is more inclusive, and therefore more stringent, than its 
Federal counterpart. In accordance with section 505(b) of SMCRA (30 
U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.134(8) 
is not inconsistent with SMCRA.
7. 86.182(f)(2)--Bond Forfeiture
    Pennsylvania is proposing to require that if the bond amount 
forfeited by the permittee is more than the amount necessary to 
complete the reclamation, the excess funds shall be used by the 
Department for certain prescribed purposes specified in subsection 
18(a) of the Pennsylvania Surface Mining Act. The Federal regulations 
at 30 CFR 800.50(d)(2) require the regulatory authority to return any 
unused funds to the party from whom they were collected. However, 
Pennsylvania considers the excess funds to be a penal bond and reserves 
the right to apply the funds to approved purposes. The Director finds 
that the proposed Pennsylvania revision is, in effect, more stringent 
than the Federal regulations. Therefore, in accordance with section 
505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), subsection 
86.182(f)(2) is not inconsistent with SMCRA.
8. 86.193(h)--Civil Penalties
    Pennsylvania is proposing to delete the provision that the 
Department may, when appropriate, assess a penalty against corporate 
officers, directors, or agents as an alternative to, or in combination 
with, other penalty actions. This provision currently appears in 
Pennsylvania's regulations at 86.195(a). The Director finds that the 
proposed deletion will not render the Pennsylvania program less 
effective than the Federal regulations at 30 CFR 846.12(a). However, 
the Director notes that Pennsylvania must still amend subsections 
86.195(a) and (b), or otherwise amend its program, as directed at 30 
CFR 938.16(eee).
9. 87.45(a)(4), 88.25(a)(4), 88.491(c)(1)(iv), 89.34(a)(1)(i), 
90.131(1)--Surface Coal Mines, Anthracite (General Provisions), 
Anthracite (Coal Preparation Facilities), Underground Coal Mines, Coal 
Refuse Disposal: Groundwater
    Pennsylvania is proposing to require that a permit applicant supply 
certain baseline information pertaining to groundwater, including water 
quality descriptions of total dissolved solids or specific conductance 
corrected to 25 degrees centigrade, pH, total iron, total manganese, 
alkalinity, acidity, and sulfates. The counterpart Federal regulations, 
at 30 CFR 780.21/784.14(b)(1), also require water quality descriptions, 
but do not specifically require descriptions of alkalinity, acidity or 
sulfates. As such, the Pennsylvania proposals are more stringent than 
their Federal counterparts. Therefore, in accordance with section 
505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), these 
Pennsylvania proposed amendments are not inconsistent with SMCRA.
10. 87.46(b)(c)(ix)--Surface Water Information: Surface Coal Mines/
88.26(b)(2)(ix)--Surface Water Information: Anthracite Surface Mines/
88.491(d)(2)(ii)(I), (J)--Surface Water Information: Anthracite 
Underground Mines/90.14(b)(3)(ix)--Surface Water Information--Coal 
Refuse Disposal
    Pennsylvania is proposing to require that a permit application 
include surface water information that specifies total aluminum in 
milligrams per liter. The Federal regulations at 30 CFR 780.21/
784.14(b)(2) do not include this provision but rather require minimum 
water quality descriptions which Pennsylvania's program already 
requires. Also, Pennsylvania is requiring other surface water 
information, as appropriate. The Federal regulations at 30 CFR 780.21/
784.14(b)(2) also do not include this provision. As such, the 
Pennsylvania proposals are more stringent than their Federal 
counterparts. Therefore, in accordance with section 505(b) of SMCRA (30 
U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed

[[Page 60172]]

amendments are not inconsistent with SMCRA.
11. 87.54(b)/87.65(b)--Maps, Cross Sections and Related Information: 
Surface Mines/88.31/88.44(b)--Maps and Plans: Anthracite Surface Mines/
88.492(j)(3)--Maps and Plans: Anthracite Underground Mines/90.21(b), 
90.46(3)--Maps and Plans: Coal Refuse Disposal
    Pennsylvania is proposing to require that qualified professional 
geologists also be registered in order to prepare and certify maps, 
plans, and cross sections. The corresponding Federal regulations, at 30 
CFR 779.25(b) (for 87.54(b) and 88.31(b)), 780.14(c) (for 87.65(b) and 
88.44(b)), and 784.23(c) (for 88.492(j)(3)), require only that the 
geologist be a professional. However, Pennsylvania may require, 
additionally, that the geologist be a registered professional. As such, 
the Pennsylvania proposals are more stringent than their Federal 
counterparts. Therefore, in accordance with section 505(b) of SMCRA (30 
U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed 
amendments are not inconsistent with SMCRA.
12. 87.69(b)(5)--Hydrologic Balance: Surface Mines/88.49(b)(3)--
Hydrologic Balance: Anthracite Surface Mines/88.492--Reclamation and 
Operation Plan: Anthracite
    Pennsylvania is proposing to require that the determination of 
probable hydrologic consequences (PHC) address the parameters measured 
in accordance with subsections 87.45, 87.46, 88.25, 88.26, and 88.491. 
The Federal regulations at 30 CFR 780.21(f)(2) require the PHC to be 
based upon baseline hydrologic information contained in the permit 
application. This baseline information is collected for the same ground 
and surface water parameters which are required to be measured pursuant 
to subsection 87.45, 87.46, 88.25 and 88.26. Therefore, the Director 
finds that the proposed Pennsylvania regulations are no less effective 
than the Federal regulations at 30 CFR 780.21(f).
13. 87.73--Dams, Ponds, Embankments, and Impoundments: Surface Mines/
90.111(7), 90.113(i), 90.120--Impoundments: Coal Refuse Disposal
    At subsection 87.73(c)(1), Pennsylvania is proposing to revise its 
requirements for detailed design plans for dams, ponds, embankments and 
impoundments. Engineers, when necessary, will obtain assistance from 
experts in related fields when preparing design plans for impoundments 
meeting or exceeding MSHA size classification or other specified 
criteria. For those impoundments not meeting the size classification or 
other criteria, the plan shall be prepared by a qualified engineer or 
land surveyor. The Federal regulations at 30 CFR 780.25(a) (2) and (3) 
have the same requirements. Therefore, the Director finds that the 
proposed Pennsylvania regulation is no less effective than the Federal 
regulations. The proposed revision also satisfies the required 
amendment at 30 CFR 938.16(s) which required Pennsylvania to clarify 
that all impoundments with a storage volume of 20 acre-feet or more 
must be designed by or under the direction of, and certified by, a 
qualified registered professional engineer with assistance from experts 
in related fields.
    At subsections 87.73(c)(4), 90.111(7) and 90.113(i), and at section 
90.120, Pennsylvania is proposing to prohibit the permanent retention 
of an impounding structure constructed of coal refuse or used to 
impound coal refuse unless it develops into a fill meeting the coal 
refuse disposal requirements of section 90.122. The Federal regulations 
at 30 CFR 816.84(b)(1) also prohibit permanent impoundments on coal 
refuse or coal refuse impounding structures, but contain no exceptions 
for the development of a fill. However, subsection 90.122(j) of 
Pennsylvania's regulations does prohibit the retention of permanent 
impoundments on a completed fill. By cross-referencing subsection 
90.122(j), these provisions contain the necessary prohibition of 
permanent impoundments. Therefore, the Director finds that the proposed 
Pennsylvania regulations are no less effective than the Federal 
regulations at 30 CFR 816.84(b)(1).
14. 87.102(a)--Effluent Standards: Surface Mines/88.92(a)--Effluent 
Standards: Anthracite Surface Mines/88.187(a)--Effluent Standards: 
Anthracite Bank Removal/88.292(a)--Effluent Standards: Anthracite 
Refuse Disposal/89.52(c)--Effluent Standards: Underground Mining and 
Coal Preparation Facilities/90.102(a)--Effluent Standards: Coal Refuse 
Disposal
    Pennsylvania is proposing to revise the instantaneous maximum level 
for manganese to 5.0 mg/l for its Group ``B'' effluent limitations, and 
to add instantaneous maximum discharge levels for manganese (5.0 mg/l) 
and suspended solids (90 mg/l) to its Group ``A'' effluent limitations. 
(Group ``A'' effluent limitations apply to pit water discharges in all 
types of weather, and to all other discharges in dry weather or during 
very low precipitation events. Group ``B'' effluent limitations apply 
to discharges, other than pit water, during precipitation events of up 
to 10 years and 24 hours.) The Director notes that the Clean Water Act 
effluent limitations applicable to coal mining operations, at 40 CFR 
Part 434, do not contain instantaneous maximum limits for manganese or 
suspended solids. Therefore, Pennsylvania's proposals are in addition 
to the requirements of the Clean Water ACt regulations. Also, the 
Director notes that the Environmental Protection Agency, in its letter 
of concurrence with this program amendment, stated that the addition of 
these instantaneous maximum limits will ``provide inspectors an 
enforceable compliance measure without the necessity of obtaining time 
consuming composite samples.'' (Administrative Record No. 838.08). 
There are no Federal counterparts in SMCRA or the Federal regulations 
promulgated thereunder to these proposed revisions. However, 30 CFR 
816/817.42 require that discharges of water from surface mining 
operations be made in compliance with, among other things, the effluent 
limitations contained in 40 CFR Part 434. Because the Environmental 
Protection Agency has concurred in the approval of this amendment, the 
Director finds that the proposed Pennsylvania revisions are consistent 
with the Federal regulations at 30 CFR 816/817.42.
15. 87.108(c)--Sedimentation Ponds: Surface Coal Mines/89.24(c)--
Sedimentation Ponds: Underground Mines and Coal Preparation Facilities/
90.108(c)--Sedimentation Ponds: Coal Refuse Disposal
    Pennsylvania is proposing to require that sedimentation ponds be 
maintained until the disturbed area has been stabilized and revegetated 
and removal is approved by the Department. The ponds may not be removed 
sooner than 2 years after the last augmented seeding, unless the 
Department finds that the disturbed area has been sufficiently 
revegetated and stabilized. Pennsylvania is also proposing to delete 
the references to ``other treatment facilities.'' This deletion is 
presumably proposed because the Pennsylvania regulations, at sections 
87.108, 89.24 and 90.108, require all drainage to be passed through 
sedimentation ponds, rather than through ``other treatment 
facilities.'' Therefore, the deletion is approved to the extent that 
``other treatment facilities'' are not permitted to be used to treat 
surface drainage. However, the Federal regulations at 30

[[Page 60173]]

CFR 816/817.46(b)(5) prohibit the removal of siltation structures 
sooner than 2 years after the last augmented seeding.
    Because Pennsylvania's proposal includes an exception to this 
requirement, the Director finds that the proposed Pennsylvania revision 
is less effective than the Federal regulations. He is also requiring 
that Pennsylvania amend its regulation to require, without exception, 
that sedimentation ponds, where used, and other treatment facilities, 
if used, cannot be removed sooner than 2 years after the last augmented 
seeding.
16. 87.112--Hydrologic Balance: Surface Mines/88.102--Hydrologic 
Balance: Anthracite Surface Mines/88.197--Hydrologic Balance: 
Anthracite Bank Removal/88.302--Hydrologic Balance: Anthracite Refuse 
Disposal/89.101 and 112--Impoundments: Underground Mines/90.112--
Hydrologic Balance: Coal Refuse Disposal
    At subsections 87.112(b), 88.102(b), 88.197(b), 88.302(b), 89.112, 
and 90.112(b), Pennsylvania is proposing to require a minimum static 
safety factor of 1.3 for dams, ponds, embankments, and impoundments. At 
subsections 87.112(b)(1) and 89.101(a), Pennsylvania is proposing to 
require that impoundments that meet or exceed MSHA size classification 
of 30 CFR 77.216(a) be designed and certified by a qualified registered 
professional engineer with assistance, as necessary, from experts in 
related fields. Impoundments not meeting or exceeding MSHA size 
classification are to be designed and certified by a qualified 
registered professional engineer or land surveyor. Each impoundment 
shall be certified that it has been constructed and is being maintained 
as designed in accordance with the approved plan and performance 
standards. At subsection 90.112(b)(1), Pennsylvania is proposing to 
require that each impoundment be certified that it has been constructed 
or is being maintained as designed in accordance with applicable 
performance standards. The Federal regulations at 30 CFR 780.25/
784.16(a)(2), and (3) specify the design, certification, and stability 
requirements for impoundments. The Federal regulations at 816/
817.49(a)(4)(ii) contain the 1.3 static safety factor requirement for 
impoundments not meeting the size or other criteria of 30 CFR 
77.216(a). The Director finds that the proposed Pennsylvania revisions 
are substantively identical to these requirements in the Federal 
regulations. The proposed revision also satisfies two required 
amendments. At 30 CFR 938.16(t), Pennsylvania was required to ensure 
that all impoundments which meet or exceed the MSHA size classification 
are designed and certified by or under the direction of a qualified 
registered professional engineer. At 30 CFR 938.16(u), Pennsylvania was 
required to ensure that all impoundments be certified that they have 
been constructed and are being maintained as designed in accordance 
with the approved plan and performance standards.
    At subsections 87.112(d) and 89.101(b), Pennsylvania is proposing 
to require that impoundments that meet or exceed the MSHA size 
classification or other criteria of 30 CFR 77.216(a) be inspected and 
certified by a qualified registered professional engineer. Impoundments 
not meeting or exceeding the MSHA size classification or criteria are 
to be inspected during construction and certified after construction 
and annually thereafter by a qualified registered professional engineer 
or land surveyor until removal of the structure or release of the 
performance bond. The engineer or surveyor must be experienced in the 
construction of impoundments. The Federal regulations at 30 CFR 816/
817.49(a)(11) contain these same inspection requirements for 
impoundments. Therefore, the Director finds that the proposed 
Pennsylvania revisions are substantively identical to these 
requirements in the Federal regulations.
    At subsections 87.112(f), 89.101(d), and 90.112(f), Pennsylvania is 
proposing to clarify that it will consider MSHA's review for 
impoundments. It will, however, review impoundments as required under 
subsection (a). The Director finds that the proposed Pennsylvania 
revision is substantively identical to the Federal regulations at 30 
CFR 780.25/784.16(c)(2), pertaining to reclamation plans for 
impoundments. The proposed revision also satisfies the required 
amendment at 30 CFR 938.16(v) which allows Pennsylvania to consider 
MSHA's action on plans for impoundments but requires it to make its own 
findings with respect thereto.
17. 87.116--Hydrologic Balance: Groundwater Monitoring--Surface Mines/
87.117--Hydrologic Balance: Surface Water Monitoring--Surface Mines/
88.105--Hydrologic Balance: Groundwater Monitoring--Anthracite Mines/
88.106--Hydrologic Balance: Surface Water Monitoring--Anthracite 
Surface Mines/88.201--Hydrologic Balance: Groundwater Monitoring--
Anthracite Bank Removal/88.202--Hydrologic Balance: Surface Water 
Monitoring--Anthracite Bank Removal/88.305--Hydrologic Balance: 
Groundwater Monitoring--Anthracite Refuse Disposal/88.306--Hydrologic 
Balance: Surface Water Monitoring--Anthracite Refuse Disposal/90.115--
Hydrologic Balance: Groundwater Information--Coal Refuse Disposal 
Performance Standards/90.116--Hydrologic Balance: Surface Water 
Monitoring--Coal Refuse Disposal Performance Standards
    At subsections 87.116(b), 88.105(b), 88.201(b), 88.305(b), 
90.115(b), 87.117(a), 88.106(a), 88.202(a), 88.306(a), and 90.116(a), 
Pennsylvania is proposing to identify the minimum monitoring 
requirements for groundwater and surface water. These monitoring 
requirements include: total dissolved solids or specific conductance 
corrected to 25 degrees C, pH, acidity, alkalinity, total iron, total 
manganese, sulfates, and water levels. The information is to be 
reported to the Department every 3 months for each location. At 
87.116(d), 88.105(d), 88.201(d), 88.305(d), 90.115(d), 87.117(b), 
88.106(b), 88.202(b), 88.306(b), and 90.116(b), the Department is 
authorized to require monitoring and reporting more frequently than 
every 3 months and to monitor additional parameters beyond the minimum 
specified in this section. The Director finds that Pennsylvania's 
revisions contain the same requirements, and are therefore 
substantively identical to, the Federal regulations at 30 CFR 780.21 
(i) and (j), pertaining to ground and surface water monitoring, except 
that the Federal regulations do not require the monitoring of acidity, 
alkalinity, or sulfates. As such, the Pennsylvania proposals are more 
stringent than their Federal counterparts. Therefore, in accordance 
with section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), 
these Pennsylvania proposed amendments are not inconsistent with SMCRA.
18. 87.127--Use of Explosives: Blasting
    At subsection (h), Pennsylvania is proposing to require that 
maximum

[[Page 60174]]

peak particle velocity may not exceed the values approved in the blast 
plan. It also includes frequency of vibration as a factor that the 
Department may consider in reducing the maximum peak particle velocity 
allowed. The Director finds that the proposed revision is no less 
effective than the Federal regulations at 30 CFR 816.67(d)(1) and 
(d)(5) pertaining to ground vibrations. The proposed revision also 
satisfies the required amendment at 30 CFR 938.16(y) which required 
Pennsylvania to ensure that all structures in the vicinity of the 
blasting area be protected from damage by establishing maximum 
allowable limits on the ground vibration.
    At subsection (i)(2), Pennsylvania is proposing to exempt from 
maximum peak particle velocity limitations those structures located on 
the permit area when the owner and lessee, if leased to another party, 
of the structure have each signed a waiver releasing the vibration 
limit. The Federal regulations at 30 CFR 816.67(e)(1) and (2) exempt 
those structures outside the permit area owned by the permittee and not 
leased, or owned and leased with a written wavier by the leasee. The 
Federal peak particle velocity limitations do not apply, however, to 
structures inside the permit area. In its letter dated March 28, 1997, 
Pennsylvania states that while OSM's general provisions pertaining to 
the prevention of the adverse effects of explosives apply only to 
damage outside the permit area, Pennsylvania allows a waiver of 
vibration limits inside the permit area only, where the Federal peak 
particle velocity limitations do not apply anyway. Pennsylvania does 
not permit waivers outside the permit area and, as such, provides 
additional protection against damage. Therefore, the Director finds 
that the proposed revision is not inconsistent with SMCRA.
    At subsection (k), Pennsylvania is proposing to require that a 
seismograph record become part of the blast record within 30 days after 
it obtained. It shall be analyzed by a qualified independent party. The 
Director notes that the proposed revisions adds requirements not 
contained in the Federal regulations at 30 CFR 816.67(d)(2) which 
require seismograph records for each blast. However, these additional 
provisions are consistent with the Federal requirement to keep a 
seismographic record and, therefore, can be approved.
19. 87.129(4)--Use of Explosives: Blasting Records
    Pennsylvania is proposing to require that the blast record include 
the direction and distance, in feet, to the nearest public building and 
other structures. The Federal regulations at 30 CFR 816.68(d) require 
only that the blast record include the direction and distance, in feet, 
from the nearest blasting hole to the nearest dwelling, public 
building, school, church, community or institutional building outside 
the permit area. However, as noted in Finding 18, above, Pennsylvania 
applies its air blast and ground vibration standards to buildings 
within the permit area as well as outside the permit area. As such, 
Pennsylvania's program is more stringent than the Federal regulations. 
In order to be consistent with its own requirements, Pennsylvania has 
amended its blast record provisions to include the direction and 
distance to the nearest building, regardless of whether the building is 
located within or outside of the permit area. In accordance with 
section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), this 
proposed amendment is not inconsistent with SMCRA.
20. 87.136--Disposal of Noncoal Wastes: Surface Mines/88.321--Disposal 
of Noncoal Wastes: Anthracite Refuse Disposal/89.63--Disposal of 
Noncoal Wastes: Underground Mining and Coal Preparation Facilities/
90.133--Disposal of Noncoal Wastes: Coal Refuse Disposal
    Pennsylvania is proposing to require that noncoal wastes be 
disposed of or temporarily stored in accordance with the Solid Waste 
Management Act and related regulations. This requirement is no less 
effective than the Federal regulations at 30 CFR 816/817.89(b), which 
provides for final disposal of noncoal wastes in a State approved solid 
waste disposal area. However, sections 88.321 and 90.133 state that 
waste materials with low ignition points may not be deposited on or 
near a coal refuse disposal pile. The Federal regulation at 30 CFR 
816.89(c) does not permit any noncoal waste to be deposited in a refuse 
pile or impounding structure. Pennsylvania's prohibition applies only 
to its listed materials and other waste materials with low ignition 
points. Therefore, the Director finds that the proposed Pennsylvania 
revisions to sections 88.321 and 90.133 are less effective than the 
Federal regulation. He is also requiring that Pennsylvania amend its 
program to prohibit any noncoal waste from being deposited in a refuse 
pile or impounding structure.
21. 88.105(c)--Groundwater Monitoring: Anthracite Mines/88.201(c)--
Groundwater Monitoring: Anthracite Bank Removal/88.305(c)--Groundwater 
Monitoring: Anthracite Refuse Disposal
    Pennsylvania is proposing to permit the Department to require the 
operator to conduct additional hydrologic tests to demonstrate 
compliance with the groundwater monitoring sections of the regulations. 
The Federal regulations at 30 CFR 780.21(b)(3) require this additional 
testing where the PHC determination indicates that adverse impacts may 
occur to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of surface or 
ground water supplies. Therefore, subsections 88.105(c), 88.201(c) and 
88.305(c) are less effective in that they merely allow, but do not 
require, additional testing as appropriate, and the Director is 
requiring Pennsylvania to amend its program to require such additional 
hydrologic testing whenever the PHC determination indicates that 
adverse impacts may occur to the hydrologic balance, or that acid-
forming or toxic-forming material is present that may result in the 
contamination of surface or ground water supplies.
22. 88.381(c)(7)--Coal Preparation Facilities
    Pennsylvania is proposing to require that an application include 
monitoring plans and that surface and ground water information, as well 
as monitoring plans, be presented in accordance with its regulations 
pertaining to ground and surface water information. There is no direct 
Federal counterpart to this proposed amendment. However, the Director 
finds that the proposed Pennsylvania revision is consistent with the 
Federal regulation at 30 CFR 785.21, which requires that an operator 
obtain a permit to operate a coal preparation plant outside the permit 
area for a specific mine, and that the permit demonstrate that the 
applicant will comply with the performance standards at 30 CFR Part 
827, which standards include the requirement to comply with the Federal 
regulations at 30 CFR 816.41, pertaining to protection of the 
hydrologic balance.
23. 89.142(a)(6)(vii)--Maps: Underground Mines and Coal Preparation 
Facilities
    Pennsylvania is proposing to require that maps identify major 
electric transmission lines by name or numerical reference. While there 
is no direct Federal counterpart to this requirement, the Director 
finds that the

[[Page 60175]]

proposed Pennsylvania revision is consistent with the Federal 
regulations at 30 CFR 783.24(e), pertaining to permit application maps, 
which requires that such maps show the location of major electric 
transmission lines and pipelines.
24. 89.143(b)(3)(i)(B)--Performance Standards: Underground Mines and 
Coal Preparation Facilities
    Pennsylvania is proposing to require that a pillar lying partially 
within the support area be considered part of the support area and be 
consistent with the other support pillars in size and pattern. While 
this provision has no direct Federal counterpart, the Director finds 
that it is consistent with the Federal regulations at 30 CFR 
784.20(b)(5), pertaining to subsidence control plans, which allows 
operators the option of leaving pillars of coal in order to prevent or 
minimize subsidence.
25. 90.39(e)--Impoundments: Coal Refuse Disposal
    Pennsylvania is proposing to require that permit application plans 
provide for the removal of impoundments constructed of or used to 
impound coal refuse as part of site reclamation. The Director finds 
that the proposed Pennsylvania revision is no less effective than the 
Federal regulations at 30 CFR 816/817.84(b)(1) which prohibit the 
permanent retention of such structures.
26. 90.122--Coal Refuse Disposal
    Pennsylvania is proposing, at subsection (j), to delete all 
exceptions to the prohibition against retaining permanent impoundments 
or depressions in a completed coal refuse disposal fill. The Director 
finds that this deletion renders subsection 90.122(j) no less effective 
than the Federal regulations at 30 CFR 816.84(b)(1), which prohibits 
the retention of permanent impounding structures constructed of coal 
mine waste or intended to impound coal mine waste.
27. 90.130--Coal Refuse Dams: Coal Refuse Disposal
    Pennsylvania is proposing to delete the provision prohibiting the 
permanent retention of coal refuse dams as part of the approved 
postmining landuse. However, because the structures must comply with 
subsection 90.122(j), which contains the prohibition, the Director 
finds that the proposed Pennsylvania revision is no less effective than 
the Federal regulation at 30 CFR 816.84(b)(1).

C. Revisions to Pennsylvania's Regulations With No Corresponding 
Federal Regulations

1. 77.3(b)--Relationship to Coal Mining
    Pennsylvania is proposing to add the provision that the incidental 
extraction of coal under subsection (a) will conform to section 86.5 
pertaining to extraction of coal incidental to noncoal surface mining. 
There is no Federal counterpart to this provision. However, the 
Director finds that the proposed regulation is not inconsistent with 
the requirements of SMCRA and the Federal regulations, which do contain 
counterparts to the requirements of section 86.5.
2. 86.37(b)--Permits
    Pennsylvania is proposing to prohibit an incremental phase approval 
of a permit if the Department has already issued an incremental phases 
approval for the area to another permittee, except for an area used for 
access or haul roads. There is no Federal counterpart to this 
provision. However, incremental phase approvals of permits are already 
included in Pennsylvania's approved program, in this same subsection. 
Therefore, the Director finds that the proposed revision does not 
render the Pennsylvania program inconsistent with the requirements of 
SMCRA or the Federal regulations.
3. 86.55(c)--Permit Renewals
    Pennsylvania is proposing to require that if a permittee provides a 
written notice under section (i) pertaining to permits conditioned upon 
only reclamation activity being performed, the notice shall be filed 
with the Department at least 180 days before the expiration date of the 
permit. There is no direct Federal counterpart to this provision. 
However, the Director finds that the proposed revision is consistent 
with the Federal regulations at 30 CFR 773.11(a), which allows 
permittees to forego obtaining permit renewals where only reclamation 
activities remain to be performed.
4. 87.92(g)--Signs and Markers: Surface Mines/88.82(c)--Signs and 
Markers: Anthracite Mines/88.182(b)--Signs and Markers: Anthracite Bank 
Removal/88.282(c)--Signs and Markers: Anthracite Refuse Removal/
89.51(h)--Signs and Markers: Underground Mining and Coal Preparation 
Plans/90.92(g)--Signs and Markers: Coal Refuse Disposal
    Pennsylvania is proposing to require that ground and surface water 
monitoring locations and sampling points used to obtain background 
information be clearly marked and identified. The requirement may be 
waived if the monitoring locations or sampling points are obvious or if 
marking would be objectionable for aesthetic reasons. The Federal 
regulations at 30 CFR 816/817.11 do not contain this requirement. 
However, the Director finds that the proposed revisions, which are in 
addition to the requirements of the Federal regulations, are not 
inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30 
U.S.C. 1255(b)), and 30 CFR 730.11(b).
5. 87.93(d)--Casing and Sealing of Drilled Holes: Surface Mines/
88.83(d)--Sealing of Drilled Holes: Anthracite Mines/88.283(d)--Sealing 
of Drilled Holes--Anthracite Refuse Removal/89.141(d)(4)(ii)--
Subsidence Control: Underground Mines
    Pennsylvania is proposing to require that gas and oil wells be 
sealed in accordance with the Oil and Gas Act (58 P.S.sections 601.101-
601.605). The Federal regulations at 30 CFR 816/817.13 do not contain 
this requirement. However, the Director finds that the proposed 
revisions are in addition to those requirements, and are therefore not 
inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30 
U.S.C. 1255(b)), and 30 CFR 730.11(b).
6. 89.144(a)--Public Notice: Underground Mines and Coal Preparation 
Facilities
    Pennsylvania is proposing to require that coal operators provide 
the Department with a copy of the required notice of intention to mine 
and return receipt or, if applicable, evidence that the notice was not 
accepted or deliverable. The Federal regulations contain no direct 
counterpart requirement. However, the Director finds that the proposed 
revision is consistent with the Federal regulations at 30 CFR 817.122, 
which requires notification to all owners of surface property overlying 
the proposed underground mining operation of the intent to mine.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received, and because no one requested an opportunity to speak at a 
public hearing, no hearing was held.

[[Page 60176]]

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Pennsylvania program. The U.S. 
Department of Labor, Mine Safety and Health Administration (District 1) 
and the U.S. Department of the Interior, Fish and Wildlife Service 
concurred without comment. The U.S. Department of Labor, Mine Safety 
and Health Administration (District 2) commented that while 
Pennsylvania's proposed regulations do not permit impounding structures 
constructed of coal refuse or used to impound coal refuse to be 
retained permanently, 30 CFR Parts 75 and 77 do not have the same 
prohibition. The Director notes that Pennsylvania's revisions comply 
with and are no less effective than the Federal regulations at 30 CFR 
816/817.84(b)(1).

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.).
    On January 25, 1996, OSM solicited EPA's concurrence with the 
proposed amendment. On March 14, 1996, EPA gave its written concurrence 
(Administrative Record No. PA-838.08).

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP. None were received.

V. Director's Decision

    Based on the above findings, the Director approves with certain 
exceptions and additional requirements, the proposed amendment as 
submitted by Pennsylvania on January 23, 1996. He is also requiring 
that Pennsylvania amend its program to make the following changes. At 
86.5(m), Pennsylvania must provide for notification of the operator and 
any intervenors of a decision not to revoke an exemption. At 86.55(j), 
Pennsylvania must require that any applications for permit renewal be 
submitted at least 120 days before the permit expiration date. At 
87.108(c), 89.24(c), and 90.108(c), Pennsylvania must require, without 
exception, that sedimentation ponds cannot be removed sooner than two 
years after the last augmented seeding. If sedimentation ponds are not 
always deemed to be the best technology currently available, any 
``other treatment facilities'' used must also remain in place for at 
least two years after the last augmented seeding. At 88.105(c), 
88.201(c), and 88.305(c), Pennsylvania must require additional 
hydrologic testing whenever the PHC determination indicates that 
adverse impacts may occur to the hydrologic balance, or that acid-
forming or toxic-forming material is present that may result in the 
contamination of surface or ground water supplies. At 88.321 and 
90.133, Pennsylvania must require that no noncoal waste be deposited in 
a coal refuse pile or impounding structure. Pennsylvania must also 
provide counterparts to the Federal regulations at 30 CFR 
702.15(d),(e),(f), and 702.17(c)(2), and (c)(3). The Federal 
regulations require that authorized representatives have the right to 
enter operations conducting incidental coal extraction and that 
administrative reviews of the State's determinations be provided.
    The Director is removing the following required amendments at 30 
CFR 938.16 because they have been satisfied by revisions contained in 
this submission.

Required Amendment Removed/State Regulation That Satisfies 
Requirement

30 CFR 938.16(g)..........................  86/87.1.                    
30 CFR 938.16(l)..........................  86.156(b).                  
30 CFR 938.16(q)..........................  86.182(e).                  
30 CFR 938.16(s)..........................  87.73(c)(1).                
30 CFR 938.16(t)..........................  87.112(b)(1), 89.101(a).    
30 CFR 938.16(u)..........................  87.112(b)(1), 90.112(b)(1). 
30 CFR 938.16(v)..........................  87.112(f), 89.101(d),       
                                             90.112(f).                 
30 CFR 938.16(x)..........................  87.127(e)(2).               
30 CFR 938.16(y)..........................  87.127(h).                  
30 CFR 938.16(z)..........................  87.127(j).                  
30 CFR 938.16(aa).........................  87.127(n).                  
30 CFR 938.16(bb).........................  87.131(n).                  
30 CFR 938.16(cc).........................  87.135(a).                  
30 CFR 938.16(dd).........................  87.138(c), 89.82(d),        
                                             90.150(c).                 
30 CFR 938.16(ee).........................  88.24(b)(4)(i).             
30 CFR 938.16(ff).........................  88.61(b)(1).                
30 CFR 938.16(gg).........................  88.491(j).                  
30 CFR 938.16(ii).........................  89.34(a)(2)(ii).            
30 CFR 938.16(jj).........................  86.172(b).                  
30 CFR 938.16(ddd)........................  86.133(g).                  
                                                                        

    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
938.16 that, within 60 days of the publication of this final rule, 
Pennsylvania must either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Pennsylvania's established administrative or 
legislative procedures.
    The Federal regulations at 30 CFR Part 938, codifying decisions 
concerning the Pennsylvania program, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decisions

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Pennsylvania program, the Director will recognize only 
the statutes, regulations other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Pennsylvania of only 
such provisions.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732,15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments

[[Page 60177]]

submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.


    Dated: October 15, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 938--PENNSYLVANIA

    1. The authority citation for Part 938 continues to read as 
follows:


    Authority: 30 U.S.C. 1201 et seq.

    2. Section 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

------------------------------------------------------------------------
  Original amendment submission      Date of final         Citation/    
              date                    publication         description   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
January 23, 1995................  November 7, 1997..  Chapters 86       
                                                       through 90.      
------------------------------------------------------------------------

    3. Section 938.16 is amended by removing and reserving paragraphs 
(g), (l), (q), (s), (t), (u), (v), (x), (y), (z), (aa), (bb), (cc), 
(dd), (ee), (ff), (gg), (ii), (jj), and (ddd); and by adding paragraphs 
(ppp) through (uuu) to read as follows:


Sec. 938.16   Required regulatory program amendments.

* * * * *
    (ppp) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to section 86.5(m), or otherwise amend its program, to 
provide for notification of the operator and any intervenors of a 
decision not to revoke an exemption.
    (qqq) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to subsection 86.55(j), or otherwise amend its program, to 
require that any applications for permit renewal be submitted at least 
120 days before the permit expiration date.
    (rrr) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to subsections 87.108(c), 89.24(c), and 90.108(c), or 
otherwise amend its program, to require, without exception, that 
sedimentation ponds cannot be removed sooner than two years after the 
last augmented seeding.
    (sss) By January 6, 1998, Pennsylvania shall submit proposed 
amendments to subsections 88.105(c), 88.201(c) and 88.305(c), or 
otherwise amend its program, to require additional hydrologic testing 
whenever the PHC determination indicates that adverse impacts may occur 
to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of surface or 
ground water supplies.
    (ttt) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to sections 88.321 and 90.133, or otherwise amend its 
program, to require that no noncoal waste be deposited in a coal refuse 
pile or impounding structure.
    (uuu) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to provide counterparts to the Federal regulations at 30 CFR 
702.15 (d), (e), (f) and 702.17 (c)(2) and (c)(3) to require that 
authorized representatives have the right to enter operations 
conducting incidental coal extraction and that administrative reviews 
of the State's determinations be conducted.

[FR Doc. 97-29475 Filed 11-6-97; 8:45 am]
BILLING CODE 4310-05-M