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[Federal Register Volume 63, Number 77 (Wednesday, April 22, 1998)]
[Rules and Regulations]
[Pages 19802-19821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10632]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-112-FOR]

Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendments.

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SUMMARY: OSM is approving, with certain exceptions, a proposed 
amendment to the Pennsylvania permanent regulatory program (hereinafter 
referred to as the Pennsylvania program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The amendment revises the 
Pennsylvania program to incorporate changes made by Pennsylvania House 
Bill 1075 and subsequent Pennsylvania law Act 1994-114. The amendment 
is intended to provide special authorization for coal refuse disposal 
in areas previously affected by mining which contain pollutional 
discharges.

EFFECTIVE DATE: April 22, 1998.

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

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 31, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. Background information on the 
Pennsylvania program including the Secretary's findings, the 
disposition of comments, and a detailed explanation of the conditions 
of approval of the Pennsylvania program can be found in the July 30, 
1982, Federal Register (47 FR 33050). Subsequent actions concerning the 
conditions of approval and program amendments are identified at 30 CFR 
938.11, 938.12, 938.15 and 938.16.

II. Submission of the Amendment

    By letter dated September 14, 1995 (Administrative Record Number PA 
837.01), Pennsylvania submitted an amendment to the Pennsylvania 
program. The amending language is contained in Pennsylvania House Bill 
1075 and was enacted into Pennsylvania law as Act 1994-124. The 
amendments change Pennsylvania's Coal Refuse Disposal Act (of September 
24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980 (P.L. 
807, No. 154)) to provide for authorization for refuse disposal in 
areas previously affected by mining which contain pollutional

[[Page 19803]]

discharges. The proposed amendments are modeled after Pennsylvania's 
approved program rules at Chapter 87, Subchapter F. (87.201) and 
Chapter 88, Subchapter G. (88.501). These subchapters allow previously 
affected sites with pollutional discharges to be reaffected provided 
the pollution abatement plan will result in a reduction of the baseline 
pollution load and represents best technology economically achievable.
    The proposed amendment was published in the October 16, 1995, 
Federal Register (60 FR 53565), and in the same notice, OSM opened the 
public comment period and provided opportunity for a public hearing on 
the adequacy of the proposed amendment. The comment period closed on 
November 15, 1995. A public hearing was held on December 5, 1995.

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 to the Pennsylvania program.
    The standards by which the proposed amendments will be evaluated 
are as follows. Section 503(a) of SMCRA provides that State regulatory 
program laws must be in accordance with the requirements of SMCRA, and 
that State regulatory program rules must be consistent with the 
regulations issued pursuant to SMCRA. The terms ``in accordance with'' 
and ``consistent with'' are defined at 30 CFR 730.5. With regard to 
SMCRA, the proposed State laws and rules must be no less stringent 
than, meet the minimum requirements of, and include all applicable 
provisions of SMCRA. With regard to the implementing Federal 
regulations, the proposed State laws and rules must be no less 
effective than the Federal regulations in meeting the requirements of 
SMCRA. The Director's findings are discussed below.

1. Section 1  Findings and Declaration of Policy

    This section is amended by adding policy statements that clarify 
Pennsylvania's rationale for authorizing coal refuse disposal on areas 
previously affected by mining which contain pollutional discharges. 
While there is no direct Federal counterpart to the added policy 
statements regarding coal refuse disposal, the Director finds that 
Pennsylvania's rationale for encouraging coal mining activities that 
will result in the improvement of previously mined areas with 
preexisting pollutional discharges is reasonable and not inconsistent 
with SMCRA at section 102 concerning the purposes of SMCRA.

2. Section 3  Definitions

    This section is amended to provide definitions for the following 
terms: ``Abatement plan,'' ``Actual improvement,'' ``Baseline pollution 
load,'' ``Best technology,'' ``Coal refuse disposal activities,'' 
``Pollution abatement area,'' and ``Public recreational impoundment.'' 
Two of these definitions, ``Coal refuse disposal activities'' and 
``Public recreational impoundment,'' are new to the Pennsylvania 
program, while the others are similar to approved definitions at 
Chapters 87.202 and 88.502 concerning remining areas with pollutional 
discharges. The proposed definitions will apply to section 6.2 of 
Pennsylvania's Act 1994-114.
    ``Abatement plan'' is defined as any individual technique or 
combination of techniques, the implementation of which will result in 
reduction of the baseline pollution load. The Director finds that this 
language is identical in substance to the definition of ``abatement 
plan'' contained in 25 Pa. Code Secs. 87.202 and 88.502, which were 
approved by OSM as part of Pennsylvania's standards for treatment of 
preexisting discharges on remined areas. See 51 FR 5997, February 19, 
1986.
    ``Actual improvement'' is defined as the reduction of the baseline 
pollution load resulting from the implementation of the approved 
abatement plan except that any reduction of the baseline pollution load 
achieved by water treatment may not be considered as actual 
improvement: Provided, however, that treatment approved by the 
department of the coal refuse before, during or after placement in the 
coal refuse disposal area shall not be considered to be water 
treatment. This definition, except for the proviso which is new, is 
identical in substance to definitions at 25 Pa. Code Secs. 87.202 and 
88.502, which were approved by OSM as part of Pennsylvania's standards 
for treatment for preexisting discharges on remined areas. See 51 FR 
5997, February 19, 1986.
    ``Baseline pollution load'' is defined to mean the characterization 
of the pollutional material being discharged from or on the pollution 
abatement area, described in terms of mass discharge for each parameter 
deemed relevant by Pennsylvania, including seasonal variations and 
variations in response to precipitation events. This proposal is 
identical in substance to the definition of ``baseline pollution load'' 
found at 25 Pa. Code Secs. 87.202 and 88.502, which was approved by OSM 
as part of Pennsylvania's standards for treatment of preexisting 
discharges on remined areas. See 51 FR 5997, February 19, 1986.
    ``Best technology'' is defined to mean measures and practices which 
will abate or ameliorate, to the maximum extent possible, discharges 
from or on the pollution abatement area. This proposal is identical in 
substance to the definition of ``best technology'' found at 25 Pa. Code 
Secs. 87.202 and 88.502, which was approved by OSM as part of 
Pennsylvania's standards for treatment of preexisting discharges on 
remined areas. See 51 FR 5997, February 19, 1986.
    ``Coal refuse disposal activities'' is defined to mean the storage, 
dumping or disposal of any waste coal, rock, shale, slurry, culm, gob, 
boney, slate, clay, underground development wastes, coal processing 
wastes, excess soil and related materials, associated with or near a 
coal seam, which are either brought above ground or otherwise removed 
from a coal mine in the process of mining coal or which are separated 
from coal during the cleaning or preparation operations. The term shall 
not include the removal or storage or overburden from surface mining 
activities.
    The proposed State definition includes two terms, ``coal mine 
waste'' and ``underground development waste,'' which are defined in the 
Federal regulations at 30 CFR 701.5. The Federal regulations define 
``underground development waste'' to include waste-rock, mixtures of 
coal, shale, claystone, siltstone, sandstone, limestone, or related 
materials that are excavated, moved and disposed of from underground 
workings in connection with underground mining activities. The proposed 
State definition concerns the disposal of materials similar to those 
listed in the Federal definition of underground development waste. The 
Federal regulations define ``coal processing waste'' as ``earth 
materials which are separated and wasted from the product coal during 
cleaning, concentrating, or other processing or preparation of coal.'' 
The State also limits the definition of ``coal refuse disposal 
activities'' by clarifying that overburden from surface mining 
activities is not included. That is, only materials separated from coal 
during cleaning or preparation and materials derived from underground 
workings are included under the definition of coal refuse disposal 
activities. The proposed definition is unclear, however, in its use of 
the term ``excess soil and related materials.''

[[Page 19804]]

    The remaining terms of the definition do not have Federal 
counterparts, but the Director finds that this proposed definition is 
not inconsistent with SMCRA and the Federal regulations in general, and 
is consistent with the Federal definitions of ``coal mine waste'' and 
``underground development waste,'' except for the reference to ``excess 
soil and related materials.'' Therefore, the Director is requiring that 
Pennsylvania further amend its program to clarify the meaning of the 
term ``excess soil and related materials.''
    ``Pollution abatement area'' means that part of the permit area 
which is causing or contributing to the baseline pollution load, which 
shall include adjacent and nearby areas that must be affected to bring 
about significant improvement of the baseline pollution load and which 
may include the immediate location of the discharges.
    This proposed definition is identical in substance to the 
definition of ``pollution abatement area'' found at 25 Pa. Code 
Secs. 87.202 and 88.502, which was approved by OSM as part of 
Pennsylvania's standards for treatment of preexisting discharges on 
remined areas. See 51 FR 5997, February 19, 1986.
    ``Public recreational impoundment'' is defined to mean a closed 
basin, naturally formed or artificially built, which is dammed or 
excavated for the retention of water and which is owned, rented or 
leased by the Federal Government, the Commonwealth or a political 
subdivision of the Commonwealth and which is used for swimming, 
boating, water skiing, hunting, fishing, skating or other similar 
activities. There is no direct Federal counterpart to this definition. 
The Director finds, however, that the proposed definition is consistent 
with the definition of ``impoundment'' contained in the Federal 
regulations at 30 CFR 701.5, and is not inconsistent with any other 
provision of SMCRA or the Federal regulations.

3. Section 3.2  Powers and Duties of the Environmental Quality Board

    New subsection (b) requires Pennsylvania's Environmental Quality 
Board (EQB) to enact regulations to implement Section 6.2 (concerning 
coal refuse disposal activities on previously affected areas). Proposed 
Section 3.2(b) also provides that the new regulations to be developed 
to implement Section 6.2 must be consistent with the requirements of 
section 301(p) of the Federal Water Pollution Control Act and the State 
remining regulations for surface coal mining activities.
    To the extent that the proposed provision requires the EQB to adopt 
implementing coal refuse disposal regulations, the Director finds the 
proposed language to be consistent with SMCRA section 503(a)(7) 
concerning authority of State regulatory programs to enact rules and 
regulations to carry out the provisions of SMCRA.
    The remaining portion of this provision, pertaining to the Federal 
Water Pollution Control Act, is outside the scope of SMCRA and its 
implementing regulations. Therefore, the Director's approval of this 
remaining portion is unnecessary.

4. Section 4.1  Site Selection

    This new section is added to establish the criteria for selecting 
sites for coal refuse disposal. Subsection (a) provides that preferred 
sites shall be used for coal refuse disposal unless the applicant 
demonstrates to the regulatory authority that another site is more 
suitable based on engineering, geology, economics, transportation 
systems and social factors and is not adverse to the public interest. 
Where, however, the adverse environmental impacts of the preferred site 
clearly outweigh the public benefits, the site shall not be considered 
a preferred site. A preferred site is one of the following:
    (1) A watershed polluted by acid mine drainage.
    (2) A watershed containing an unreclaimed surface mine but which 
has no mining discharge.
    (3) A watershed containing an unreclaimed surface mine with 
discharges that could be improved by the proposed coal refuse disposal 
operation.
    (4) Unreclaimed coal refuse disposal piles that could be improved 
by the proposed coal refuse disposal operation.
    (5) Other unreclaimed areas previously affected by mining 
activities.
    There is no direct Federal counterpart to the proposed State 
language. However, the establishment of criteria to be used for 
selecting sites for coal refuse disposal is not itself inconsistent 
with the intent of SMCRA. SMCRA at sections 102(d) and 102(h) 
encourages both sound coal mining operations that protect the 
environment, and the reclamation of mined areas left without adequate 
reclamation prior to the enactment of SMCRA on August 3, 1977. The 
proposed criteria are reasonable, not inconsistent with the provisions 
of SMCRA, and will likely encourage the reclamation of environmentally 
damaged lands. The Director finds, therefore, that subsection (a) can 
be approved.
    Subsection (b) provides that, except if the site is a preferred 
site, coal refuse disposal shall not occur on prime farmland; in sites 
known to contain Federal threatened or endangered plants or animals or 
State threatened or endangered animals; in watersheds designated as 
exceptional value under 25 PA Code Chapter 93 (relating to water 
quality standards); in areas hydrologically connected to and which 
contribute at least five percent of the drainage to wetlands designated 
as exceptional value under 25 Pa. Code Chapter 105 (relating to dam 
safety and waterway management) unless a larger percentage is approved 
by the department in consultation with the Pennsylvania Fish and Boat 
Commission; and, in watersheds less than four square miles in area 
upstream of the intake of public water supplies or the upstream limit 
of public recreational impoundments.
    By letter to the U.S. Environmental Protection Agency (EPA) dated 
March 8, 1996 (Administrative Record Number PA 837.59), the State 
explained the intent and limitations of proposed subsection 4.1(b). The 
State explained that while section 4.1(b) does not prohibit coal refuse 
disposal in sites known to contain Federal threatened or endangered 
plants or animals, neither does it, by itself, authorize disposal in 
such areas. That is, in order to receive authorization to conduct coal 
refuse disposal operations on preferred sites (whether or not the sites 
contain threatened or endangered species), a coal refuse disposal 
permit must be obtained in accordance with the Pennsylvania program's 
permitting process. All coal refuse disposal permit applications must 
comply with Chapter 86 (regulations that apply to all coal mining 
activities) and Chapter 90 (regulations that apply to coal refuse 
disposal operations). One element of the permit review process, the 
State letter explained, is that a determination must be made that the 
coal refuse disposal activity will comply with Secs. 86.37(a)(15) and 
90.150(d), regulations that require compliance with the Federal 
Endangered Species Act.
    Therefore, proposed subsection 4.1(b) categorically prohibits the 
disposal of coal refuse on non-preferred sites known to contain Federal 
threatened or endangered plants or animals or State threatened or 
endangered animals. If the proposed coal refuse disposal site is a 
preferred site, coal refuse disposal on the site may be possible, but 
only after a finding by the State that the proposed coal refuse 
disposal permit application is in compliance with Secs. 86.37(a)(15) 
and 90.150(d) concerning endangered

[[Page 19805]]

species. These Pennsylvania program provisions are approved 
counterparts to the Federal regulations at 30 CFR 773.15(c)(10) and 
816/817.97(b), respectively.
    By letter dated January 27, 1997 (Administrative Record Number PA-
837.61), PADEP submitted a copy of its revised Coal Refuse Disposal 
Program Guidance. The draft guidance was subsequently revised on April 
1, 1997 (Administrative Record Number PA-837.65). The guidance document 
was finalized and made effective dated February 23, 1998 
(Administrative Record Number PA-837.68). The Coal Refuse Disposal 
Program Guidance is intended to further clarify what PADEP stated in 
its March 8, 1996, letter concerning the implementation of proposed 
Sec. 4.1(b). The Coal Refuse Disposal Program Guidance specifically 
clarifies the intended implementation of Sec. 4.1(b) related to 
threatened or endangered species. Pennsylvania's policy concerning the 
implementation of Sec. 4.1(b) is as follows:

    With respect to preferred sites, the Department will not approve 
(via the site selection process) or permit (via the permitting 
process) a site that is known or likely to contain federally listed 
threatened or endangered species, unless the Department concludes 
and the U.S. Fish and Wildlife Service concurs that the proposed 
activity is not likely to adversely affect federally listed 
threatened or endangered species or result in the ``take'' of 
federally listed threatened or endangered species in violation of 
Section 9 of the Endangered Species Act.

    The Federal regulations at 30 CFR 816/817.97 concerning the 
protection of fish and wildlife and related values, require the 
minimization of disturbance and adverse impacts and enhancement where 
practicable, and consultations with State and Federal fish and wildlife 
resource agencies. For example, 30 CFR 816/817.97(b) provides that no 
mining activity, including disposal of coal refuse, shall be conducted 
which is likely to jeopardize the continued existence of listed 
endangered or threatened species, or which is likely to result in the 
destruction or adverse modification of designated critical habitats of 
such species in violation of the Endangered Species Act of 1973, as 
amended. 30 CFR 780.16/784.21(a)(1) provide that the scope and level of 
detail of fish and wildlife information to be provided in the permit 
application shall be determined by the regulatory authority in 
consultation with State and Federal agencies with responsibilities for 
fish and wildlife.
    By letter dated July 18, 1996 (Administrative Record Number PA 
837.60) the U.S. Fish and Wildlife Service (USFWS) stated that OSM has 
received no incidental take statement from the USFWS exempting OSM from 
the ``take'' prohibitions of Sec. 9 of the Endangered Species Act. 
USFWS also noted that no consultations on Pennsylvania's coal mining 
program, including the delegation of the program to the State by OSM, 
or amendments to the State's mining law or regulations, have occurred 
between USFWS and OSM. USFWS concluded, therefore, that there are no 
legal means by which OSM or the State can issue a mining permit which 
would allow for the take of a Federally listed species. USFWS further 
concluded that both OSM and the State must interpret the permitting 
provision in Pennsylvania's mining regulations at 25 Pa. Code 
Sec. 86.37(a)(15) (relating to Federally listed species) to mean that 
no proposed activity may be permitted by the State which ``may affect'' 
threatened or endangered species, or result in the ``take'' of 
threatened or endangered species in violation of Sec. 9 of the 
Endangered Species Act.
    However, by letter dated April 7, 1998 (Administrative Record 
Number PA 837.70) the USFWS concluded, after informal consultations 
with OSM, Pennsylvania, and the EPA, and after reviewing the State's 
Coal Refuse Disposal Program Guidance, that OSM approval of the 
amendments which are the subject of this rulemaking is not likely to 
adversely affect federally listed species in Pennsylvania. See the 
Agency Comments section below for a complete discussion of the USFWS 
comments.
    There is no direct Federal counterpart to the proposed provision. 
However, based on the information discussed above (including the 
State's Coal Refuse Disposal Guidance quoted above, and the concurrence 
letter from the USFWS), the Director finds that the proposed site 
selection provision at subsection 4.1(b) is not inconsistent with the 
Federal regulations. The Director is approving subsection 4.1(b), 
however, only to the following extent:
    With respect to preferred sites, the State will not approve (via 
the Site Selection process) or permit (via requirements in Chapters 86 
or 90) a site that is known or likely to contain Federally listed 
threatened or endangered species, unless the State demonstrates and the 
USFWS concurs that the proposed activity is not likely to adversely 
affect Federally listed threatened or endangered species or results in 
the ``take'' of Federally listed or endangered species in violation of 
Section 9 of the Endangered Species Act.
    Further, Sec. 86.37(a)(15) of the Pennsylvania program concerning 
criteria for permit approval or denial, shall still apply to all 
permits, including coal refuse disposal operations on preferred sites. 
Section 86.37(a)(15) provides the following:

    A permit or revised permit application will not be approved 
unless the application affirmatively demonstrates and the Department 
finds, in writing, on the basis of the information in the 
application or from information otherwise available, which is 
documented in the approval, and made available to the applicant, 
that the following exist: * * * (15) The proposed activities would 
not affect the continued existence of endangered or threatened 
species or result in the destruction or adverse modification of 
their critical habitat as determined under the Endangered Species 
Act of 1973 (16 U.S.C.A. Secs. 1531-1544).

    In Sec. 86.37(a)(15), the phrase ``would not affect the continued 
existence of'' will be interpreted by OSM and Pennsylvania to mean that 
no mining activity may be permitted by the State which ``may affect'' 
threatened or endangered species unless the USFWS concurs that the 
proposed activity is not likely to adversely affect Federally listed 
threatened or endangered species or result in the ``take'' of Federally 
listed threatened or endangered species in violation of Section 9 of 
the Endangered Species Act.
    The Director also notes that Sec. 87.50, Sec. 88.33, Sec. 89.74, 
and Sec. 90.18 (concerning Fish and Wildlife Resource Information 
related to Surface Mining; Anthracite Coal; Underground Mining of Coal 
and Coal Preparation Facilities; and Coal Refuse Disposal, 
respectively) still apply to all permits. In order to ensure that 
accurate and adequate information is obtained to make permit decisions 
with respect to Federally listed species, and to ensure compliance with 
Sec. 86.37(a)(15) as interpreted above, review of certain permits by 
USFWS is necessary to ensure that proposed permits (i.e., new, revised, 
and renewal) are ``not likely to adversely affect'' threatened or 
endangered species. At least annually, the USFWS will provide a listing 
of those geographic areas (e.g., counties) in Pennsylvania which have 
known or likely occurrences of Federally listed species. The PADEP 
shall provide the USFWS's Pennsylvania Field Office with copies of 
proposed mining permits for review as part of the normal permit review 
process. The USFWS will provide preliminary endangered species comments 
to the State, with copies of those comments to OSM. Prior to 
publication in the Pennsylvania Bulletin, the State shall resolve with 
the USFWS all concerns related to

[[Page 19806]]

threatened and endangered species to ensure that Federally listed 
species are not likely to be adversely affected by the proposed action. 
This review mechanism will allow for concurrent review by the natural 
resource agencies, and will also minimize the number of permits to be 
sent by the State and reviewed by the USFWS.
    The Director also notes that Sec. 90.150 (c) and (d) concerning 
protection of fish, wildlife, and related environmental values 
continues to apply to all coal refuse disposal permits.
    Subsection 4.1(c) requires the identification of alternative sites 
that were considered within a one mile radius for new refuse disposal 
areas that support existing mining. Where there are no preferred sites 
within a one mile radius or where the applicant demonstrates that a 
nonpreferred site is more suitable, the applicant shall demonstrate the 
basis for the exclusion of other sites, and shall demonstrate the 
suitability of the recommended site. Where the adverse environmental 
impacts of the proposed site clearly outweigh the public benefits, the 
State shall not approve the site.
    The Federal regulations at 30 CFR 816/817.81 through 816/817.84 
authorize the storage of coal mine waste (at 30 CFR 817.81 and 817.84) 
on permitted areas. The storage of coal mine waste can result in large 
storage structures of potentially hazardous materials, and the Federal 
regulations provide specific provisions to assure that such storage 
facilities are constructed in an environmentally sound manner. 
Pennsylvania has, at Chapter 90, approved counterparts the Federal 
regulations concerning the storage of coal refuse.
    While the proposed Pennsylvania provision provides some incentive 
to use preferred sites (i.e., environmentally damaged sites) that are 
close to the existing mining operations, it does not require the use of 
preferred sites. This is not inconsistent with the Federal regulations 
if the State authorizes the placement of coal refuse storage piles on 
permitted areas and in accordance with the rules at Chapter 90 
concerning coal refuse disposal. There is nothing in the proposed State 
language that nullifies the applicability of Chapter 90.
    The proposed State provision requires a demonstration of site 
suitability on the basis of several factors, including environmental 
factors. Any such demonstration of environmental suitability must, of 
course, consider factors such as protection of the hydrologic balance 
and threatened or endangered species as required by the Federal 
regulations and the counterpart Pennsylvania rules. The Director notes 
that there is nothing in the proposed language that would negate the 
applicability of these approved State rules.
    Because Pennsylvania will continue to apply the provisions of 25 
Pa. Code Chapter 90, which correspond to the Federal regulations at 30 
CFR 816/817.81 through 816/817.84, to the disposal of all coal refuse, 
the Director finds that the proposed revisions are not inconsistent 
with SMCRA or the Federal regulations.
    Subsection (d) requires the identification, within a 25 square mile 
area (about a three-mile radius), of alternative sites that were 
considered, and the basis for their consideration, as new refuse 
disposal areas that support proposed new coal mining activity. Where 
there are no preferred sites within the 25-square mile area or the 
applicant demonstrates that a nonpreferred site is more suitable, this 
provision requires a demonstration of the basis for the exclusion of 
other sites, and a demonstration, based on reasonably available data, 
that the proposed site is more suitable. Where the adverse 
environmental impacts of the proposed site clearly outweigh the public 
benefits, the site will not be approved.
    There are no direct Federal counterparts to these proposed site 
selection criteria. However, the Director finds that the proposed 
revisions are not inconsistent with SMCRA or the Federal regulations, 
since Pennsylvania will continue to apply the state counterparts to the 
Federal requirements, at 30 CFR 816/817.81 through 816/817.84, to the 
disposal of all coal refuse.
    Subsection (e) provides that the alternatives analyses required by 
section 4.1 satisfies the Dam Safety and Encroachments Act (November 
26, 1978 (P.L. 1375, No. 325)). Since the Dam Safety and Encroachments 
Act is outside the scope of the approved State program, the Director's 
approval of subsection (e) is not necessary.

5. Section 6.1  Designating Areas Unsuitable for Coal Refuse Disposal

    a. Subsection (h)(5) is amended to provide for a variance to the 
100-foot stream buffer zone provision for coal refuse disposal. This 
provision provides for a demonstration by the operator that the 
variance will not result in significant adverse hydrologic or water 
quality impacts. This provision also provides for public notice of the 
requested variance, a public hearing concerning the application for a 
variance, the consideration of comments submitted by the Pennsylvania 
Fish and Boat Commission, and a written finding by the regulatory 
authority that specifies the methods and techniques that must be 
employed to prevent or mitigate adverse impacts.
    While SMCRA itself is silent concerning stream buffer zones, a 100-
foot stream buffer zone and variances thereto are authorized at 30 CFR 
816/817.57(a). Such stream buffer zone variances are authorized 
provided: (1) The regulatory authority finds that the mining activities 
will not cause or contribute to the violation of water quality 
standards, and will not adversely affect the water quantity and quality 
or other environmental resources of the stream; and (2) any stream 
diversions will comply with 30 CFR 817.43 concerning diversions.
    The criteria for the variance as proposed in subsection (h)(5) are 
less effective than the criteria contained in 30 CFR 816/817.57. 
Specifically, the proposed term, ``significant'' renders the proposal 
less effective because it is a lesser standard than the Federal 
requirement that the proposed activities will not cause or contribute 
to the violation of water quality standards, and will not adversely 
affect the water quantity and quality or other environmental resources 
of the stream. That is, whereas the Federal regulations prohibit any 
adverse effects on water quality and quantity, or on other 
environmental resources of the stream, the proposed regulations only 
prohibit ``significant'' adverse impacts.
    Therefore, the Director is approving subsection (h)(5) only to the 
extent that it authorizes stream buffer zone variances for coal refuse 
disposal activities that will not cause or contribute to the violation 
of water quality standards, and will not adversely affect the water 
quantity and quality or other environmental resources of the stream. In 
effect, the Director is not approving the term ``significant.'' Also, 
the Director is requiring Pennsylvania to amend its program to 
authorize stream buffer zone variances for coal refuse disposal 
activities only where such activities will not cause or contribute to 
the violation of applicable State or Federal water quality standards, 
and will not adversely affect water quality and quantity, or other 
environmental resources of the stream.
    Subsection 6.1(h)(5) also requires public notice in two newspapers 
of general circulation in the area of the proposed variance for two 
successive weeks. This notice would be in addition to the public notice 
required by Sec. 86.31 concerning public notices of filing of permit 
applications, and is consistent

[[Page 19807]]

with the notice required for steam buffer zone variance applications, 
at 25 Pa. Code Sec. 86.102(12).
    The remaining portions of subsection 6.1(h)(5), pertaining to 
written orders, public hearings, and consideration of comments by the 
Pennsylvania Fish and Boat Commission, have no Federal counterparts. 
However, since they are in addition to the public notice requirements 
for stream buffer zone variance applications, at 26 Pa. Code 
Sec. 86.102(12), the Director finds that they are not inconsistent with 
SMCRA or the Federal regulations.
    Subsection 6.1(i) is added to provide that all new coal refuse 
disposal areas shall include a system to prevent adverse impacts to 
surface and ground water and to prevent precipitation from contacting 
the coal refuse.
    The system for preventing precipitation from contacting the coal 
refuse shall be installed: as phases of the coal refuse disposal area 
reach capacity; as specified in the permit; when the operator 
temporarily ceases operation of the coal refuse disposal area for a 
period in excess of ninety days unless the State, for reasons of a 
labor strike or business necessity, approves a longer period that shall 
not exceed one year, or when the operator permanently ceases operation 
of the coal refuse disposal area. The system shall allow for 
revegetation and the prevention of erosion.
    The proposed language requiring installation of a system to prevent 
adverse impacts to surface and ground water and to prevent 
precipitation from contacting the coal refuse has several counterparts 
in SMCRA. For example, SMCRA Sec. 515(b)(11), concerning surface 
disposal of mine wastes, provides that such wastes shall be placed in 
designated areas and compacted in layers with the use of incombustible 
and impervious materials if necessary. SMCRA Sec. 515(b)(10), 
concerning protection of the hydrologic balance, requires the avoidance 
of acid or other toxic mine drainage. SMCRA Sec. 515(b)(14) requires 
that acid-forming and toxic-forming materials be treated or buried and 
compacted or otherwise deposited in a manner designed to prevent 
contamination of ground or surface waters.
    Despite the fact that the proposed language allows delays in 
completing the installation of the preventive system for reasons such 
as strikes and business necessity, the State rules at Chapter 90 
concerning coal refuse disposal operations continue to apply at all 
times without delay. For example, Sec. 90.122 continues to provide that 
coal refuse disposal areas shall be maintained to ensure that the 
leachate and surface runoff from the permit area will not degrade 
surface water or groundwater, or exceed the effluent limitations of 
Sec. 90.102.
    The Director finds the proposed language is consistent with SMCRA 
Sec. 515(b)(10) concerning protection of the hydrologic balance, and 30 
CFR 816/817.81(a)(1) concerning coal mine waste, protection of surface 
and groundwater from leachate and surface water runoff.

6. Section 6.2  Coal Refuse Disposal Activities on Previously Affected 
Areas

    This is a new section. Subsection (a) provides that a special 
authorization may be requested to engage in coal refuse disposal 
activities on areas with preexisting pollutional discharges resulting 
from previous mining. This subsection also provides that all of the 
provisions of Pennsylvania's Coal Refuse Disposal Act (P.L. 1040, No. 
318, September 24, 1968 and amended October 10, 1980 (P.L. 807. No. 
154)) apply to special authorizations to conduct coal refuse disposal 
activities on areas with preexisting pollutional discharges, except as 
modified by this new section 6.2.
    Subsection (b) provides the criteria under which the State may 
grant a special authorization to engage in such coal refuse disposal. 
The State may grant the special authorization if such special 
authorization is part of:
    (1) A permit issued under section 4 of the State's Coal Refuse 
Disposal Act, except for permit transfers after the effective date of 
this section, if the request is made at the time of submittal of a 
permit application or prior to a State decision to issue or deny that 
permit; or
    (2) A permit revision pursuant to State regulation, but only if the 
operator affirmatively demonstrates to the satisfaction of the State 
that:
    (i) The operator has discovered pollutional discharges within the 
permit area that came into existence after its permit application was 
approved;
    (ii) The operator has not caused or contributed to the pollutional 
discharges;
    (iii) The proposed pollution abatement area is not hydrologically 
connected to any area where coal refuse disposal activities have been 
conducted pursuant to the permit;
    (iv) The operator has not affected the proposed pollution abatement 
area by coal refuse disposal activities; and
    (v) The State has not granted a bonding authorization and coal 
refuse disposal approval for the area.
    Subsection (c) provides that the State may not grant a special 
authorization unless the operator seeking a special authorization for 
coal refuse disposal demonstrates all of the following:
    (1) Neither the operator nor any officer, principal shareholder, 
agent, partner, associate, parent corporation, subsidiary or affiliate, 
sister corporation, contractor or subcontractor or any related party:
    (i) Has any legal responsibility or liability as an operator under 
section 315 of the Pennsylvania Act of June 22, 1937 (P.L. 1987, No. 
394), known as ``The Clean Stream Law,'' for treating the pollutional 
discharges from or on the proposed pollution abatement area; or
    (ii) Has any statutory responsibility or liability for reclaiming 
the proposed pollution abatement area.
    (2) The proposed pollution abatement plan will result in a 
significant reduction of the baseline pollution load and represents 
best technology.
    (3) The land within the proposed pollution abatement area can be 
reclaimed.
    (4) The coal refuse disposal activities on the proposed pollution 
abatement area will not cause any additional surface water pollution or 
groundwater degradation.
    (5) The coal refuse disposal activities on permitted areas other 
than the proposed pollution abatement area will not cause any surface 
water pollution or groundwater degradation.
    (6) There are one or more preexisting pollutional discharges from 
or on the pollution abatement area.
    (7) All requirements of Pennsylvania's Coal Refuse Disposal Control 
Act and its implementing rules that are not inconsistent with section 
6.2 have been met.
    Subsection (d) provides that a special authorization may be denied 
if granting it will or is likely to affect any legal responsibility or 
liability for abating the pollutional discharges from or near the 
pollution abatement area.
    Subsection (e) provides that, except as specifically modified by 
section 6.2, an operator requesting special authorization shall comply 
with the permit application requirements of sections 4 and 5 of 
Pennsylvania's currently approved Coal Refuse Disposal Act. The 
operator must also provide additional information as required by the 
State, relating to delineation of the pollution abatement area 
(including the location of preexisting discharges), a description of 
the hydrologic balance of the pollution abatement area (including water 
quality and quantity monitoring data), and a

[[Page 19808]]

description of the abatement plan that represents best technology.
    Subsection (f) provides that an operator who is granted a special 
authorization shall implement the approved water quality and quantity 
monitoring program and abatement plan, notify the State immediately 
prior to the completion of each step of the abatement plan, and provide 
progress reports to the State within 30 days after the completion of 
each step of the abatement program in a manner described by the State.
    The proposed special authorizations must comply with 40 CFR part 
434 concerning performance standards for coal mining point source 
discharges, and with Sec. 301(p) of the Federal Water Pollution Control 
Act (33 U.S.C. 1311(p)) concerning modified permits for coal remining 
operations. The effluent limitation standards will be identified 
jointly by the EPA and the State on a permit-by-permit basis during the 
development of the National Pollutant Discharge Elimination System 
(NPDES) permit. The Director notes that the EPA has provided its 
concurrence with the proposed amendments. See the Environmental 
Protection Agency section below for a discussion of all EPA comments 
and conditions on their approval of these amendments. The Director 
finds that the proposed provisions at Section 6.2(a) through (f) have 
no Federal counterparts. However, the Director finds that these 
subsections are not inconsistent with SMCRA and can be approved, 
provided that nothing in this approval authorizes the State to adopt 
revised effluent limitations without approval by the EPA pursuant to 
the Clean Water Act.
    Subsection (g)(1) specifies that an operator granted special 
authorization under section 6.2 shall be responsible for the treatment 
of discharges in the following manner:
    (i) Except for preexisting discharges which are not encountered 
during coal refuse disposal activities or the implementation of the 
abatement plan, the operator shall comply with all applicable 
regulations of the State.
    (ii) The operator shall treat preexisting discharges which are not 
encountered during coal refuse disposal activities or implementation of 
the abatement plan to meet the baseline pollution load when the 
baseline pollution load is exceeded according to the following 
schedule:
    (A) Prior to final bond release, if the operator is in compliance 
with the pollution abatement plan, where the State demonstrates that 
the operator has caused the baseline pollution load to be exceeded; the 
State shall have the burden of proving that the operator caused the 
baseline pollution load to be exceeded;
    (B) Prior to final bond release, if the operator is not in 
compliance with the pollution abatement plan, unless the operator 
affirmatively demonstrates that the reason for exceeding the baseline 
pollution load is a cause other than the operator's coal refuse 
disposal and abatement activities; and
    (C) Subsequent to final bond release where the department 
demonstrates that the operator has caused the baseline pollution load 
to be exceeded; the department shall have the burden of proving that 
the operator caused the baseline pollution load to be exceeded.
    Subsection (g)(1)(ii)(A) allocates the burden of proof in a manner 
which, at first blush, appears to be inconsistent with the Federal 
regulations at 43 CFR 4.1171(b).
    That Federal provision states that ``the ultimate burden of 
persuasion shall rest with the applicant for review'' of any notice of 
violation or cessation order. In addition, the legislative history of 
SMCRA clearly states that the applicant for review of a notice or order 
carries the ultimate burden of proof in the administrative review 
proceeding. S. Rep. No. 128, 95th Cong., 1st Sess. 93 (1977). However, 
this proposal shifts the burden of proof to the State Regulatory 
Authority only where it issues an enforcement action for exceeding the 
baseline pollution load for a preexisting, unencountered discharge. As 
noted below, the EPA states in its concurrence that discharges 
unaffected by and diverted around or piped under fills (not 
encountered) would not be subject to the effluent guidelines at 40 CFR 
part 434--subpart B. Because these preexisting unencountered discharges 
are not subject to the requirements of 40 CFR part 434, they are 
likewise not regulated under 30 CFR 816/817.42. Moreover, since it 
proposes to regulate pollutional discharges and take enforcement 
actions in a manner which is beyond the scope of, but not inconsistent 
with, SMCRA, Pennsylvania is free to allocate the burden of proof in 
administrative review proceedings of such enforcement actions in a 
different manner than is provided for in 43 CFR 4.1171(b). Therefore, 
subsection (g)(1)(ii)(A) can be approved.
    Subsection (g)(2) provides that an allegation that the operator 
caused the baseline pollution load to be exceeded under subclause (ii) 
of clause (1) shall not prohibit the State from issuing, renewing or 
amending the operator's license and permits or approving a bond release 
until a final administrative determination has been made of such 
alleged violation.
    This subsection is no less stringent than SMCRA, so long as it 
applies only to bond releases for permits other than the permit for 
which the allegation of exceeding the baseline pollution load is 
pending. If it were interpreted to allow bond release on the permit for 
which the allegation is pending, subsection (g)(2) would be less 
stringent than section 519(c)(3) of SMCRA, 30 U.S.C. 1269(c)(3), which 
allows a final bond release only after all reclamation requirements of 
SMCRA have been met. However, subsection 6.2(j)(3) of this amendment, 
discussed below, prohibits final bond release of special authorization 
permits where the operator has caused the baseline pollution load to be 
exceeded after phase two of bond release, or within five years of the 
discontinuance of treatment of a preexisting, unencountered discharge. 
As such, any allegation that the operator caused the baseline pollution 
load to be exceeded would, in accordance with subsection 6.2(j)(3), 
prevent final bond release until the allegation is found to be untrue. 
Therefore, subsection (g)(2) is approved to the extent that it applies 
to final bond releases on permits other than the permit for which the 
allegation that the baseline pollution load has been exceeded is 
pending.
    Subsection (g)(3) provides that, for this subsection, the term 
``encountered'' shall not be construed to mean diversions of surface 
water and shallow groundwater flow from areas undisturbed by the 
implementation of the abatement plan which would otherwise drain into 
the affected area, provided such diversions are designed, operated and 
maintained in accordance with all applicable regulations of the State.
    The Federal regulations at 30 CFR 816/817.42 require that mining 
operations (including coal refuse disposal operations) comply with all 
applicable State and Federal water quality laws and regulations and 
with the effluent limitations for coal mining promulgated by EPA and 
set forth in 40 CFR part 434. In order to approve Pennsylvania's 
program amendment, OSM is required to obtain the concurrence of the EPA 
in accordance with Sec. 503(b) of SMCRA. On September 20, 1995, OSM 
requested the concurrence of the EPA with respect to those aspects of 
the amendment which relate to air or water quality standards 
promulgated under the authority of the Clean Water Act.
    In a letter to OSM dated January 30, 1997 (Administrative Record 
Number

[[Page 19809]]

PA-837.63), EPA conditionally concurred with the proposed Pennsylvania 
amendment (see Environmental Protection Agency section below for a 
complete discussion of EPA comments). The EPA provided five conditions 
for its concurrence with the proposed amendments.
    The EPA stated that to emphasize its concern over in-stream refuse 
disposal, EPA concurrence is conditioned on the following: a.) PADEP 
notification to EPA within 30 days of receipt of a joint SMCRA/NPDES 
permit application for an in-stream refuse disposal project, and b.) 
PADEP submittal to EPA of any joint SMCRA/NPDES application or permit 
information which EPA specifically requests for an effective review.
    The EPA stated that it will not object to PADEP issuance of an 
NPDES permit for proposed in-stream refuse disposal facilities if (1) 
compliance with Section 404 permit requirements is assured; (2) there 
are no feasible alternatives to the coal refuse disposal, protection of 
existing and designated downstream aquatic life and uses is assured, 
and provisions are established for adequate mitigation.
    Where discharges from refuse disposal activities would cause or 
contribute to an exceedance of water quality standards, the NPDES 
permit must contain water quality-based effluent limitations in 
compliance with 40 CFR 122.44(d). Adequate monitoring and analysis of 
the background water quality of the receiving stream must be done prior 
to permit issuance and as part of the permit development process. The 
EPA also stated that appropriate measures must be planned and 
implemented for coal refuse disposal facilities which will prevent long 
term acid drainage after closure.
    The proposed statutory revisions adopted by the State comply with 
EPA's determination regarding the treatment level required under 
Federal law for unencountered discharges. The proposed standards 
regarding treatment levels for discharges that are encountered are the 
applicable regulations of the department (Sec. 90.102 Hydrologic 
balance: water quality standards, effluent limitations and best 
management practices). The Director notes that EPA review of all permit 
applications related to in-stream refuse disposal and other permit 
applications identified by the EPA will help assure that the proposed 
coal refuse disposal operations in Pennsylvania will meet the 
requirements of the Clean Water Act.
    In addition, EPA recommended that proposed disposal of potentially 
acidic refuse in valley fills on non-impacted (virgin) areas be subject 
to reviews under individual Sec. 404 permits, rather than coverage 
under the nationwide 404 permit.
    The EPA has clarified that its understanding of Sec. 6.2(g)(1)(i) 
is that coal refuse disposal operations that encounter a preexisting 
discharge shall comply with the effluent limitations that will be 
described in the NPDES permit, and which will be consistent with the 
effluent guideline limitations for coal preparation plants and 
associated areas as identified at 40 CFR Part 434--Subpart B. However, 
the EPA notes that discharges unaffected by and diverted around or 
piped under fills (not encountered) would not be subject to the 
effluent guidelines at 40 CFR Part 434--Subpart B. Such discharges that 
are not encountered shall meet the baseline pollution load standard as 
defined at Sec. 3(1.3), and shall be treated in accordance with the 
provisions at Sec. 6.2(g)(1)(ii). The EPA will, as part of its review 
of all NPDES permits related to in-stream refuse disposal and other 
permits, help assure that adequate monitoring and analysis of the 
background water quality of the receiving stream will be done prior to 
permit issuance. In addition, the EPA will be able to provide guidance 
to the State to help assure the prevention of long term acid drainage 
after closure.
    The Director notes that the proposed provisions at 
Sec. 6.2(g)(1)(ii) address the possibility that coal refuse disposal 
operations (or implementation of the abatement plan) may cause the 
baseline pollution load to be exceeded. As a consequence of exceeding 
the baseline pollution load, the operator must comply with the proposed 
provisions at Sec. 6.2(g). The Director recognizes the possibility that 
such coal refuse disposal operations (or implementation of the 
abatement plan) could affect a preexisting discharge to such a degree 
that, in effect, the operations have ``encountered'' that discharge. In 
such a circumstance (i.e., a discharge is encountered) an operator 
would be required to treat the preexisting discharge not to baseline, 
but to the applicable Pennsylvania water quality standards at Chapter 
90.102. Proposed Sec. 6.2(g)(1)(i) provides that for preexisting 
discharges that are encountered, the operator shall comply with all 
applicable regulations of the department.
    The Director also recognizes the difficulty and complexity of 
making such a determination. By necessity, these determinations would 
have to be made by the State on a case-by-case basis after a thorough 
analysis of the circumstances and variables involved.
    For example, under the proposed provisions, coal refuse may be 
placed upon a preexisting coal refuse deposit with a pre-existing 
pollutional discharge. Under such circumstances, the surface of the 
pre-existing coal refuse deposit may be prepared (modified) to accept 
deposition of a new coal refuse deposit so that the resulting deposit 
is stable. The surface preparation activities on the pre-existing 
deposit will not, of itself, be considered an ``encounter'' of the pre-
existing pollutional discharge.
    During coal refuse disposal operations, pollutional discharges from 
the pre-existing coal refuse deposit that is being buried under the new 
coal refuse deposit, will be treated to baseline standards. Pollutional 
discharges flowing from the newly placed coal refuse that lies above 
the pre-existing coal refuse deposit will be subject to the State 
effluent standards for disposal operations at Chapter 90, subchapter D 
at 90.102. However, if during its inspections of the operations, it 
becomes apparent to the State that pollutional waters from the new coal 
refuse disposal fill are co-mingling with (i.e., encountering) the 
pollutional discharge from the pre-existing coal refuse deposit, then 
the State must apply the effluent limitations at Chapter 90, subchapter 
D at 90.102 to the pre-existing discharge, as well as to the ``new'' 
discharge, rather than the baseline pollution load standard.
    With the exceptions noted above for subsections (g)(1)(ii)(A) and 
(g)(2), the Director finds that 6.2(g) is consistent with the 
requirements of the Federal regulations at 30 CFR 816/817.42, provided 
that nothing in this approval authorizes the State to adopt revised 
effluent limitations without approval by the EPA pursuant to the Clean 
Water Act.
    Subsection (h) provides that an operator who is required to treat 
preexisting discharges under subsection (g) will be allowed to 
discontinue preexisting discharges when the operator demonstrates that 
all of the conditions identified below have been satisfied.
    (1) The baseline pollution load is no longer being exceeded as 
shown by all ground and surface water monitoring;
    (2) All requirements of the permit and the special authorization 
have been or are being met;
    (3) The operator has implemented each step of the abatement plan as 
approved in the authorization; and
    (4) The operator did not cause or allow any additional surface 
water pollution or groundwater degradation

[[Page 19810]]

by reaffecting the pollution abatement area.
    The Director notes that the proposed language at subsection 6.2(h) 
could be misinterpreted. The proposed language in the first sentence of 
this subsection which states that ``an operator required to treat 
preexisting discharges under subsection (g) will be allowed to 
discontinue treating . . .'' is unclear. Subsection 6.2(g) pertains to 
both discharges that are encountered and those that are not 
encountered, and the treatment standards are different for each.
    The Director interprets the proposed language in the first sentence 
of Sec. 6.2(h) to pertain only to subsection 6.2(g)(1)(ii), which 
governs discharges that are not encountered. Therefore, the Director is 
approving the proposed provision to the extent that it provides that an 
operator may only discontinue treating preexisting discharges that are 
not encountered when the operator demonstrates that the ``baseline'' 
pollution load is no longer being exceeded. Preexisting discharges that 
are encountered must be treated to the State water quality standards at 
Chapter 90, subchapter D at 90.102. Also, the Director is requiring 
that the State further amend the Pennsylvania program to clarify that 
Subsection 6.2(h) of the Coal Refuse Disposal Act pertains to 
preexisting discharges that are not encountered.
    Subsection (i) provides that if any condition set forth in 
subsection 6.2(g) occurs after discontinuance of treatment under 
subsection 6.2(h), the operator shall reinstitute treatment in 
accordance with subsection 6.2(g). An operator who reinstitutes 
treatment under this subsection shall be allowed to discontinue 
treatment if the requirements of subsection 6.2(h) are met. This 
provision will help assure that treatment will be restarted as 
necessary to comply with the provisions of subsection 6.2(g).
    To the extent that subsection 6.2(g), (h), and (i) are applied as 
discussed in this finding, the Director finds that the proposed 
provisions are not inconsistent with SMCRA, and are consistent with the 
Federal regulations at 30 CFR 816/817.42. The Director is making this 
finding with the understanding that the regulations to be developed by 
Pennsylvania to implement Section 6.2 (as is required by the proposed 
provisions at Section 3.2(b) of the Coal Refuse Disposal Act) will 
clarify that preexisting discharges that are encountered must be 
treated to the State effluent standards at Chapter 90, subchapter D at 
90.102.
    Subsection (j) provides that for pollution abatement areas subject 
to a grant of special authorization under subsection 6.2, the operator 
shall comply with all requirements relating to bonds set forth in 
section 6 of Pennsylvania's existing Coal Refuse Disposal Act, except 
that the criteria and schedule for release of bonds shall be as 
follows:
    (1) Up to fifty-percent of the amount of bond if the operator 
demonstrates that:
    (i) All activities were conducted in accordance with all applicable 
requirements;
    (ii) The operator has satisfactorily completed installing the water 
impermeable cover, grading, planting and drainage control in accordance 
with the approved abatement plan;
    (iii) The operator has properly implemented each step of the 
approved abatement plan;
    (iv) The operator has not caused the baseline pollution load to be 
exceeded for a period of a minimum of six months prior to the submittal 
of a request for bond release and until the bond release is approved as 
shown by all ground and surface water monitoring; and
    (v) The operator has not caused or contributed to any ground or 
surface water pollution by reaffecting the pollution abatement area.
    (2) Up to an additional thirty-five percent of the amount of bond 
if the operator demonstrates that:
    (i) The operator has replaced topsoil, completed final grading and 
achieved successful vegetation in accordance with the approved 
reclamation plan;
    (ii) The operator has not caused or contributed to any ground or 
surface water pollution by reaffecting the pollution abatement area; 
and
    (iii) The operator has achieved the actual improvement of the 
baseline pollution load described in the abatement plan and shown by 
all ground and surface water monitoring for the period of time provided 
in the abatement plan, or has achieved all of the following:
    (A) At a minimum, the operator has not caused the baseline 
pollution load to be exceeded as shown by all ground and surface water 
monitoring for a period of twelve months from the date of initial bond 
release under clause (1) or from the date of discontinuance of 
treatment under subsection 6.2(h).
    (B) The operator has conducted all measures provided in the 
abatement plan and any additional measures specified by the State in 
writing at the time of initial bond release under clause (1).
    (C) The operator has caused aesthetic or other environmental 
improvements and the elimination of public health and safety problems 
by engaging in coal refuse disposal activities and reaffecting the 
pollution abatement area.
    (D) The operator has stabilized the pollution abatement area.
    (3) The remaining amount of bond if the operator demonstrates that:
    (i) The operator has not caused the baseline pollution load to be 
exceeded from the time of bond release under clause (2) or, if 
treatment has been initiated any time after release of the bond, for a 
period of five years from the date of discontinuance of treatment under 
subsection 6.2(h); and
    (ii) The applicable liability period of section 6 has expired and 
the operator has successfully completed all coal refuse disposal and 
reclamation activities.
    In accordance with the Federal regulations at 30 CFR 800.40, the 
State's amendment provides for Phase I bond release after the 
completion of refuse placement and grading; Phase II bond release after 
revegation has been established; and Phase III bond release after the 
expiration of the extended liability period.
    In addition, the State's bond release provisions establish special 
criteria to ensure that final bond release will not be granted unless 
the operator at a minimum, is satisfying the effluent limitations 
established by PADEP and approved by EPA for areas with preexisting 
pollutional discharges, the operator has fully implemented the approved 
abatement and reclamation plan and the operator has not caused 
degradation of the baseline pollution load for a specified period of 
time.
    Therefore, the Director finds that proposed Sec. 6.2(j) provides 
sufficient guarantees to ensure that final release of the bond will not 
occur until the operation has satisfied the water quality standards 
established by EPA and met all other reclamation requirements that 
apply to any surface mining operation. The Director finds subsection 
(j) to be no less effective than the Federal bond release standards at 
30 CFR 800.40.
    Subsection 6.2(k) sets forth the standard of successful 
revegetation for reclamation plans approved as part of a special 
authorization. The proposed standard of successful revegetation shall 
be, as a minimum, the establishment of ground cover of living plants 
not less than can be supported by the best available topsoil or other 
suitable material in the reaffected area, shall not be less than ground 
cover existing before disturbance and shall be adequate to control 
erosion: Provided,

[[Page 19811]]

however, that the State may require that the standard of success comply 
with section 5(c) and (e) of the current Coal Refuse Disposal Act where 
it determines compliance is integral to the proposed pollution 
abatement plan.
    The Director finds proposed subsection (k) to be consistent with 30 
CFR 816.115(b)(5), except as noted below. The Federal provision at 
816.116(b)(5) provides the minimum revegetation standards for areas 
that were previously disturbed by mining, and that were not reclaimed 
to the requirements of Subchapter K (performance standards). The 
proposed State provision, however, lacks the requirement that to 
qualify for the revegetation standards, the area that was previously 
disturbed by mining must not have been reclaimed to the State's 
performance standards. To be no less effective than 816.116(b)(5), the 
State needs to limit the application of the proposed standards to areas 
that were previously disturbed by mining and that were not reclaimed to 
the State reclamation standards.
    Therefore, the Director is approving subsection (k) only to the 
extent that it is applicable to areas previously disturbed by mining 
that were not reclaimed to the standards of the Pennsylvania program. 
In addition, the Director is requiring that the State further amend the 
Pennsylvania program to be no less effective than 30 CFR 816.116(b)(5), 
by limiting the application of the revegetation standards under 
Subsection 6.2(k) of its Coal Refuse Disposal Act, to areas that were 
previously disturbed by mining and that were not reclaimed to the 
State's reclamation standards.
    Subsection 6.2(l) provides that forfeited funds in the Surface 
Mining Conservation and Reclamation Fund (Fund) shall be applied as a 
credit to the bond required for a special authorization. In addition, 
special authorization areas shall be exempt from permit reclamation 
fees.
    The Director notes that any forfeited Fund moneys to be used would 
have originally come from a form of bond which is approved under the 
Pennsylvania program. As such, the use of these forfeited Fund moneys 
to ``rebond'' the site is not, per se, inconsistent with section 509 of 
SMCRA, 30 U.S.C. 1259, and 30 CFR 800.12, pertaining to the requirement 
of a performance bond and the acceptable forms thereof. However, if the 
forfeited moneys for a particular site are sufficient to perform all 
outstanding reclamation obligations for the site, then the site should 
not be reclaimed to lesser reclamation standards under a special 
authorization. For example, if the forfeited moneys in the Fund were 
used to reclaim the site, and that reclamation would result in the 
elimination of a pollutional discharge or revegetation of the site to 
the level required to support the land use approved in the original 
permit, then it would be inappropriate and a loss to the environment to 
reclaim the site to lesser standards under special authorization. Under 
these circumstances, the State should not approve the special 
authorization.
    The Director finds that the proposed provisions, concerning the use 
of previously forfeited funds in establishing an appropriate bond 
amount for a special authorization area, are not inconsistent with the 
Federal forfeiture of bond provisions with the following exception. The 
Director is approving 6.2(l) to the extent that the PADEP will not 
approve a special authorization when such an authorization would result 
in the site being reclaimed to lesser standards than could be achieved 
if the forfeited bond moneys were used to reclaim the site to the 
standards approved in the original permit under which the bond moneys 
were forfeited. In addition, the Director is requiring that the State 
further amend the Pennsylvania program to clarify that under Subsection 
6.2(l) of its Coal Refuse Disposal Act, a special authorization for 
coal refuse disposal operations will not be granted, when such an 
authorization would result in the site being reclaimed to lesser 
standards than could be achieved if the moneys paid into the Fund, as a 
result of a prior forfeiture on the area, were used to reclaim the site 
to the standards approved to the original permit under which the bond 
moneys were forfeited.
    Subsection (m) provides that an operator granted special 
authorization under section 6.2 shall be permanently relieved from the 
requirements of subsection 6.2(g) and the act of June 22, 1937 (P.L. 
1987, No. 394), known as ``The Clean Streams Law,'' for all preexisting 
discharges, identified in subsection 6.2(e), to the extent of the 
baseline pollution load if the operator complies with the terms and 
conditions of the pollution abatement plan and the baseline pollution 
load has not been exceeded at the time of final bond release. Relief of 
liability under this subsection shall not act or be construed to 
relieve any person other than the operator granted special 
authorization from liability for the preexisting discharge; nor shall 
it be construed to relieve the operator granted special authorization 
from liability under subsection 6.2(g)(1)(ii) if the baseline pollution 
is exceeded.
    As discussed above in the finding for Section 6.2(g), the Director 
has determined that, with the exceptions noted for subsections 
(g)(1)(ii)(A) and (g)(2), proposed Section 6.2(g) is consistent with 
the requirements of the Federal regulations at 30 CFR 816/817.42 
concerning water quality standards and effluent limitations. Under the 
proposed provisions, an operator with a special authorization would be 
required to comply with the Pennsylvania program performance standards 
for all preexisting pollutional discharges encountered by their 
operations and for all new pollutional discharges resulting from their 
operations, and to treat preexisting pollutional discharges in 
accordance with subsection 6.2(g). However, upon final bond release 
under subsection 6.2(j), an operator granted a special authorization 
would no longer be responsible for the preexisting pollutional 
discharges identified in the special authorization. To qualify, the 
operator with a special authorization must have complied with the terms 
and conditions of the pollution abatement plan and the provisions of 
Subsection 6.2(g) concerning the exceedence of the baseline pollution 
load.
    As further discussed in the finding for Subsection 6.2(g), the EPA 
has concluded that discharges unaffected by and diverted around or 
piped under fills (not encountered) would not be subject to the 
effluent guidelines at 40 CFR part 434--subpart B. Such discharges that 
are not encountered shall meet the baseline pollution load standard as 
defined at Sec. 3(1.3), and shall be treated in accordance with the 
provisions at Sec. 6.2(g)(1)(ii). The Director finds, therefore, that 
the proposed subsection 6.2(m) is not inconsistent with the Federal 
regulations at 30 CFR 816.42 concerning water quality standards and 
effluent limitations.

7. Section 6.3  Experimental Practices

    This new section sets forth criteria established to encourage 
advances in coal refuse disposal practices and advance technology or 
practices that will enhance environmental protection with respect to 
coal refuse disposal activities, and authorizes the State to grant 
permits approving experimental practices and demonstration projects. 
The State may grant such permits if:
    (1) The environmental protection provided will be potentially more 
protective or at least as protective as required by this act and State 
regulations;

[[Page 19812]]

    (2) The coal refuse disposal activities approved under the permits 
are not larger or more numerous than necessary to determine the 
effectiveness and economic feasibility of the experimental practices or 
demonstration projects; and
    (3) The experimental practices or demonstration projects do not 
reduce the protection afforded public health and safety below that 
provided by this act and state regulations.
    SMCRA section 711 provides that the regulatory authority may, with 
approval by the Secretary, authorize departures in individual cases on 
an experimental basis from the environmental protection performance 
standards of sections 515 and 516 of SMCRA. The proposed provisions are 
substantively identical to the provisions of SMCRA section 711 
concerning experimental practices, except that they are silent 
concerning the requirement to obtain approval from the Secretary for 
each experimental practice, and do not clarify that such practices are 
only approved as part of the normal permit approval process and only 
for departures from the environmental protection performance standards. 
The Director notes that the Pennsylvania rules developed to implement 
these provisions must be consistent with and no less effective than the 
Federal regulations at 30 CFR 785.13 concerning experimental practices 
mining.
    The Director is approving the proposed amendments concerning 
experimental practices. In addition, the Director is requiring that the 
State further amend the Pennsylvania program by adding implementing 
rules no less effective than 30 CFR 785.13, and no less stringent than 
SMCRA Section 711 and which clarify that experimental practices are 
only approved as part of the normal permit approval process and only 
for departures from the environmental protection performance standards, 
and that each experimental practice receive the approval of the 
Secretary.

8. Section 15.1  Suspension of Implementation of Certain Provisions

    This new provision provides for the suspension of any provision of 
Act 1994-114 found to be inconsistent with SMCRA or section 402 of the 
Federal Water Pollution Control Act (FWPCA) (62 Stat. 1155, 33 U.S.C. 
section 1251 et seq.). This new provision also provides that the State 
shall develop a regulatory program and program amendments under SMCRA 
and the FWPCA that are consistent with the requirements of section 
301(p) of the FWPCA and the State remining regulations for surface 
mining activities. The Director finds the proposed language to be 
consistent with SMCRA section 503(a)(7) concerning State programs, and 
with the Federal regulations at 30 CFR 732.17 concerning State program 
amendments.

IV. Summary and Disposition of Comments

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. Fish and Wildlife Service (USFWS) expressed concern that 
the proposed amendments at Sec. 4.1(b) concerning site selection, may 
lead to adverse impacts on Federally listed threatened or endangered 
species in violation of the Federal Endangered Species Act of 1973 (87 
Stat. 884, as amended; 16 U.S.C. 1531 et seq.). Specifically, the 
concern is with language at Sec. 4.1(b) which states, ``Except if it is 
a preferred site, coal refuse disposal shall not occur * * * in sites 
known to contain Federal threatened or endangered plants or animals.'' 
USFWS interpreted the quoted language as allowing the disposal of coal 
refuse on preferred sites known to contain Federally listed endangered 
or threatened species. USFWS believed that such activity would 
reasonably be expected to adversely affect threatened and endangered 
species.
    The USFWS comment stated that OSM has received no incidental take 
statement from the USFWS exempting OSM from the ``take'' prohibitions 
of Sec. 9 of the Endangered Species Act, 16 U.S.C. Sec. 1538. USFWS 
also noted that no consultations on Pennsylvania's coal mining program, 
including the delegation of the program to the State by OSM, or 
amendments to the State's mining law or regulations, have occurred 
between USFWS and OSM. USFWS concluded, therefore, that there are no 
legal means by which OSM or the State can issue a mining permit which 
would allow for the take of a Federally listed species. USFWS further 
concluded that both OSM and the State must interpret the permitting 
provision in Pennsylvania's mining regulations at 25 Pa. Code 
Sec. 86.37(a)(15) (relating to Federally listed species) to mean that 
no proposed activity may be permitted by the State which ``may affect'' 
threatened or endangered species, or result in the ``take'' of 
threatened or endangered species in violation of Sec. 9 of the 
Endangered Species Act.
    In a letter dated March 8, 1996 (Administrative Record Number PA 
837.59) the Pennsylvania Department of Environmental Protection (PADEP) 
attempted to address the concerns raised regarding Sec. 4.1(b). PADEP 
stated that Sec. 4.1(b) is part of a site selection process that is 
separate and in addition to the approved permitting process.
    That is, the proposed amendments must be read in concert with the 
requirements of the existing Pennsylvania program. Specifically, 
Sec. 4.1(b) prohibits refuse disposal on non preferred sites. The State 
also contends that, while Sec. 4.1(b) does not prohibit nor does it by 
itself authorize coal refuse disposal on preferred sites known to 
contain Federally listed species, a proposed permit for coal refuse 
disposal on preferred sites must also comply with all the applicable 
permitting statutes and regulations. Consequently, coal refuse disposal 
activities on preferred sites must comply with Sec. 86.37(a)(15) and 
Sec. 90.150(d). Section 86.37(a)(15) specifically prohibits the PADEP 
from issuing a permit to conduct coal mining activities if the proposed 
activities would violate the Federal Endangered Species Act. Section 
90.150(d) prohibits coal refuse disposal activities which are likely to 
jeopardize the continued existence of endangered or threatened species, 
or which are likely to destroy or adversely modify the designated 
critical habitats of such endangered or threatened species.
    Despite the State's assurances described above, the USFWS stated 
that it does not agree that the PADEP's March 8, 1996, letter 
adequately supports a conclusion that the proposed amendments are ``not 
likely to adversely affect'' threatened or endangered species. As a 
remedy, USFWS recommended that PADEP revise the State's Coal Refuse 
Disposal Policy (see Finding 4 above). After reviewing the final Policy 
Guidance document, USFWS agreed that the revised Policy, in conjunction 
with OSM's interpretation of the Endangered Species Act protections 
already contained in Pennsylvania's program, adequately clarify the 
requirements to comply with the Federal Endangered Species Act and has 
provided its concurrence with the proposed amendments (Administrative 
Record Number PA-837.70).
    In addition, however, the USFWS indicated that the site selection 
criteria at Sec. 4.1 (c) and (d) are weak in that they too easily allow 
a company to select non-preferred sites based on criteria such as 
environmental, economic, technical, transportation, and social factors. 
The result, USFWS predicted,

[[Page 19813]]

will be that using ``previously affected areas'' will be a rare 
occurrence (Administrative Record Number PA-837.15).
    In response, the Director notes that neither SMCRA nor the Federal 
regulations contain site selection criteria which distinguish between 
``preferred'' (previously mined) sites and ``alternate'' (undisturbed) 
sites. So long as Pennsylvania also continues to apply its State 
program counterparts to the Federal regulations governing coal refuse 
disposal, and imposes these site selection criteria as additional 
requirements, the criteria constitute more stringent environmental 
controls, which are not inconsistent with SMCRA or the Federal 
regulations. See SMCRA Section 505(b), 30 U.S.C. Sec. 1255(b).
    The USFWS's Clean Water Act comments concern the proposed variance 
to the 100-foot stream buffer zone provision at Sec. 6.1(h)(5). The 
USFWS stated that the removal of the buffer zone would allow the use of 
valley fills, and this would result in the violation of EPA's 
antidegradation policy at 40 CFR 131.12(a)(1) which provides that 
existing uses of the waters of the United States, and the water quality 
necessary to protect that use, must be maintained and protected. The 
USFWS asserted that valley fills will result in the elimination of 
perennial streams with their aquatic communities and their nutrients 
and food organisms. Therefore, the filling of valleys with coal refuse 
would eliminate existing uses, thereby violating 40 CFR 131.12(a)(1).
    In response, the Director notes that the EPA has provided its 
conditional concurrence with this proposed amendment. Condition number 
one is that EPA will review all applications for in-stream coal refuse 
disposal projects. Condition number two is that EPA will not object to 
the issuance of a permit for in-stream coal refuse disposal if, among 
other things, the existing uses of the stream will be protected. See 
EPA concurrence section, below.
    The U.S. Department of Labor, Mine Safety and Health Administrative 
(MSHA) commented on language at Sec. 1 of the proposed amendments 
concerning the State's perception that a few large coal refuse disposal 
areas would be better than numerous small coal refuse disposal sites. 
MSHA stated agreement with the language as long as refuse piles are 
constructed properly. The Director agrees that proper construction of 
refuse piles is essential, and notes that nothing in the proposed 
provisions limits the applicability of the approved State provisions 
concerning the construction of coal refuse piles at Pa. Code Chapter 
90.

Public Comments

    A public comment period and opportunity to request a public hearing 
was announced in the October 16, 1995, Federal Register (60 FR 53565). 
The comment period closed on November 15, 1995. A public hearing was 
held on December 5, 1995. The public comments received and the 
Director's responses are presented below.
1. Definition of ``Coal Refuse Disposal Activities''
    One commenter asserted that this definition is over broad and 
appears to include excess spoil under the definition. In response, the 
Director notes that the proposed definition specifically excludes the 
removal or storage of overburden from surface mining operations. The 
Federal regulations at 30 CFR 701.5 define ``spoil'' to mean overburden 
from surface coal mining operations. Therefore, the proposed definition 
is not inconsistent with the Federal definition.
    The commenter also asserted that the definition is over broad in 
that it would allow topsoil and overburden to be handled and disposed 
of as coal refuse material, because the definition includes ``excess 
soil and related materials.'' In response, the Director agrees that 
neither overburden nor topsoil may be handled or disposed of as though 
it were coal refuse, and notes that in Finding 2 above, he is requiring 
the State to add regulations that clarify the meaning of the term 
``excess soil and related materials.''
2. Threatened or Endangered Species
    Numerous commenters object to the provision at Sec. 4.1(b) that 
would allow coal refuse disposal in preferred sites that are known to 
contain prime farmlands or Federal threatened or endangered plants or 
animals or State threatened or endangered animals. The commenters 
stated that the proposed provision would violate section 9 of the 
Endangered Species Act, 16 U.S.C. 1538, and 30 CFR 817.97 concerning 
protection of fish, wildlife, and related environmental values.
    Neither 16 U.S.C. 1538 nor 30 CFR 817.97 address prime farmland, so 
the Director disagrees with the commenter that coal refuse disposal on 
prime farmlands violates those provisions
    As discussed above in Finding 4, while Sec. 4.1(b) does not 
prohibit coal refuse disposal in sites known to contain Federal 
threatened or endangered species, it does not, by itself, authorize 
disposal in such areas either. What Sec. 4.1(b) does, is allow for the 
possibility of coal refuse disposal in such areas if all the 
Pennsylvania program provisions concerning threatened or endangered 
species are complied with. This includes compliance with Sec. 90.150(d) 
which provides that coal refuse disposal activities may not be 
conducted which are likely to jeopardize the continued existence of 
threatened or endangered species. Moreover, in response to comments 
from the USFWS, Pennsylvania has clarified the intent and 
implementation of the proposed provision by revising its coal refuse 
disposal policy. Specifically, the policy revisions clarify that coal 
refuse disposal must meet the permitting requirements of 25 PA Code 
Chapters 86 and 90. Both of these chapters have provisions that require 
compliance with the Federal Endangered Species Act.
    Finally, the Director notes that the USFWS now agrees that OSM 
approval of this proposed amendment is not likely to adversely affect 
Federally listed endangered and threatened species in Pennsylvania, 
given the adoption of the amended State policy document and the 
interpretation, set forth in Finding 4, of Pennsylvania's existing 
program requirements pertaining to endangered and threatened species.
3. Variance to Stream Buffer Zones
    Numerous commenters object to the provision at Sec. 6.1(h)(5) that 
allows a variance to the 100-foot stream buffer zone provision. 
Specifically, commenters stated that the variance violates the 
regulations of the Clean Water Act at 40 CFR 131.12, which provides for 
the protection of existing instream water uses and the water quality 
necessary to protect existing uses, and 30 CFR 715.17(d), which allows 
stream channel diversions only if they comply with both State and 
Federal statutes and regulations.
    The commenters also argue that OSM approval of Sec. 6.1(h)(5) would 
violate Section 702(a) of SMCRA, 30 U.S.C. 1292(a), which requires that 
SMCRA not be construed to supersede, amend, modify or repeal certain 
other Federal statutes, including the Federal Water Pollution Control 
Act.
    In response, the Director notes that the Federal regulations at 30 
CFR 816/817.57 authorize variances to stream buffer zones, and the 
approved Pennsylvania rules at Sec. 86.102(12) currently contain 
provisions authorizing variances to stream buffer zones. Therefore, 
variances to the 100-foot buffer zone are permitted. Also, the EPA has 
conditioned its concurrence with this amendment on numerous grounds,

[[Page 19814]]

including a requirement that it review any applications for in-stream 
disposal of coal refuse. Furthermore, EPA has stated that it will 
object to the issuance of any such permit application if it does not 
provide for protection of the existing uses of the stream. See EPA 
concurrence section, below.
    However, as discussed in Finding 5, above, the Director is not 
approving Sec. 6.1(h)(5) to the extent that it authorizes stream buffer 
zones variances so long as the coal refuse disposal activities will not 
cause ``significant'' adverse hydrologic or water quality impacts. 
Also, the Director is requiring Pennsylvania to amend its program to 
authorize stream buffer zone variances for coal refuse disposal 
activities only where such activities will not cause or contribute to 
the violation of applicable State or Federal water quality standards, 
and will not adversely affect water quality and quantity, or other 
environmental resources of the stream.
    Some commenters also stated that the two-week public notice 
requirement is less effective than the Federal four-week requirement at 
30 CFR 773.13(a). The Director disagrees. As discussed in Finding 5 
above, the proposed two-week newspaper notice is in addition to the 
four-week newspaper notice required by the approved program at 
Sec. 86.31(a).
    One commenter asserted that allowing the placement of mine wastes 
within 100 feet of streams would likely pose a violation of Sec. 404 of 
the Clean Water Act, which prohibits fills in waters of the United 
States, including wetlands. In response, the Director notes that the 
EPA has provided its conditional concurrence with the proposed 
amendment; See the EPA concurrence section below, Condition #1. Under 
40 CFR Sec. 123.24(d)(6) and the 1991 Memorandum of Agreement (MOA) 
between EPA and PADEP, EPA has the authority to review and comment on 
draft National Pollutant Discharge Elimination System (NPDES) permits 
for all coal mining activities, including refuse disposal. As part of 
the MOA, EPA waived review of routine mining permit applications. 
However, EPA will now review all permit applications that involve in-
stream refuse disposal, and other permit applications as identified by 
the EPA to the PADEP.
    The EPA review of all permit applications related to in-stream 
refuse disposal and other permit applications identified by the EPA 
will help assure that the proposed coal refuse disposal in Pennsylvania 
will meet the requirements of the Clean Water Act. In addition, the EPA 
condition will provide the EPA with the appropriate mechanism to 
monitor situations where potentially acidic refuse might be placed in 
valley fills on non-impacted areas. This will ensure that the EPA and 
the U.S. Army Corps of Engineers will have an opportunity to determine 
whether the proposed filling activity should be subject to reviews 
under individual Section 404 permits (see EPA concurrence section 
below, EPA Comment #2). The Director will continue to coordinate with 
EPA to understand how EPA has implemented this condition of its 
approval.
    Numerous commenters stated that the practice of enclosing streams 
in pipes under coal refuse valley fills would violate the Federal 
provisions at 40 CFR 131.12 concerning the protection of existing 
instream water uses and wetlands. In response, the Director notes that 
the EPA has provided its conditional concurrence with the proposed 
amendment. Condition number one provides for EPA review of all proposed 
in-stream coal refuse disposal operations, while condition number two 
provides that EPA will not object to the approval of any such operation 
only if it is convinced that the existing uses of the stream will be 
protected (see the EPA concurrence section, below).
4. Identification of Alternative Sites--Mileage Standard
    One commenter noted that the siting of new coal refuse areas is 
barely constrained under Sec. 4.1(c), since the applicant is allowed to 
choose a site on the basis of factors entirely unrelated to the 
geologic and hydrologic suitability of the site, including such factors 
as ``economic'' and ``social'' factors. The commenter further stated 
that any attempt to interject a cost-benefit analysis into the site 
suitability requirements of 30 CFR 816 and 817 concerning disposal of 
coal refuse and siting and construction of valley and head-of-hollow 
fills must be rejected, to the extent that it attempts to waive any of 
those requirements.
    The Director agrees. To be no less effective than the Federal 
requirements concerning coal mine waste disposal, the proposed siting 
considerations (such as ``economic'' and ``social'' factors) must be in 
addition to, rather than in place of the site suitability requirements 
of 30 CFR parts 816 and 817. The proposed language at Sec. 4.1(c) does 
not, however, prevent the application of the approved State provisions 
that are counterparts to the Federal requirements concerning coal 
refuse disposal. Therefore, the proposed site selection criteria do not 
render the Pennsylvania program less effective than the Federal 
regulations.
    Several commenters stated that the one mile radius criterion does 
little to encourage coal refuse disposal on preferred sites. In 
response, the Director notes that neither SMCRA nor the Federal 
regulations require coal refuse disposal operations to be placed on 
``preferred'' sites, as that term is defined in Sec. 4.1(a) of this 
amendment. Therefore, the site selection criteria contained in 
Sec. 4.1(c) are applied in addition to Pennsylvania's State program 
counterparts to the Federal coal refuse disposal regulations at 30 CFR 
816/817.81 through 816/817.84. As supplementary measures, the site 
selection criteria are not inconsistent with SMCRA or the Federal 
regulations.
5. Preventing Adverse Impacts to Surface and Groundwater
    One commenter stated that Sec. 6.1(i), which provides for a system 
to prevent adverse impacts on the hydrologic balance, should be in 
addition to any other specific design, location and operational 
requirements contained in 30 CFR 816/817 relating to coal waste and 
coal refuse disposal. The Director agrees. The Pennsylvania regulations 
at Chapter 90, Subchapter D. continue to provide the performance 
standards for coal refuse disposal, to which the proposed provision at 
Subsection 6.1(i) adds an additional requirement.
    The commenter further stated that there is no basis for deferring 
reclamation and final cover on each lift of a coal refuse disposal area 
for the extended period of time provided in Subsection 6.1(i), and to 
the extent that toxic or acid-forming material is present, such 
material must be immediately isolated from water to prevent AMD. The 
Director understands the commenter's concern with this comment and 
notes that despite the provision's authorization of a deferral in 
completing the system to prevent adverse hydrologic impacts, as noted 
above in Finding 5, the State regulations at Chapter 90 concerning coal 
refuse disposal continue to apply, and without delay. For example, 
Sec. 90.122 continues to provide that coal refuse disposal areas shall 
be maintained to ensure that the leachate and surface runoff from the 
permit area will not degrade surface water or groundwater, or exceed 
the effluent limits of Sec. 90.102.
6. Alternate Effluent Limitations
    One commenter stated that the proposed amendments (under Sec. 6.2) 
are not consistent with the 1992 Energy Policy Act amendments, or the 
alternate effluent limitations of Sec. 301(p) of the Clean Water Act, 
because the amendments appear to inappropriately

[[Page 19815]]

authorize the disposal of coal refuse materials under relaxed water 
quality standards and relaxed reclamation and bonding responsibility.
    In response, the Director notes that as discussed above in Finding 
6, the EPA has given its concurrence (with conditions) of the proposed 
amendments. See the EPA section below for information on all EPA 
comments and conditions. The proposed amendment distinguishes between 
preexisting discharges that are encountered by the proposed operation, 
and discharges that are not encountered. The EPA also recognizes such a 
distinction. In its concurrence with the proposed amendments, the EPA 
stated that the proposed amendments at Sec. 6.2(g)(1)(i) require that 
discharges resulting from any refuse disposal activities, including 
instream valley fills, must comply with PADEP regulations that include 
the same effluent limitations as described in NPDES effluent guideline 
regulations for coal preparation plants and associated areas (40 CFR 
434--Subpart B). EPA also stated that ``[u]naffected water diverted 
around or piped under fills would not be subject to effluent guideline 
regulations under 40 CFR 434. That is, EPA is concurring with the 
proposed State provisions at Sec. 6.2(g)(1)(ii) that authorize the 
treatment of discharges that are not encountered to the ``baseline 
pollution load'' and not to the State regulatory counterpart to 40 CFR 
434.
    Therefore, it is OSM's understanding that proposed 
Sec. 6.2(g)(1)(ii) is not, as the commenter asserts, over broad and is 
not inconsistent with Section 301(p) of the Clean Water Act.
    EPA's involvement in the Pennsylvania permitting process for coal 
refuse disposal operations will help assure compliance with the 
provisions of the Clean Water Act.
    The EPA will assist the State in identifying the appropriate 
effluent limitation standards on a permit-by-permit basis during the 
development of NPDES permit.
    With regard to the commenter's reference to the 1992 Energy Policy 
Act, the Director notes that the Pennsylvania amendment does not 
propose to alter or diminish the ``land reclamation'' or bond release 
standards imposed under SMCRA, with one exception. At subsection 
6.2(k), Pennsylvania proposes to allow operators with special 
authorizations to revegetate the sites merely by establishing ground 
cover which is not less than that existing before disturbance, so long 
as said ground cover is adequate to control erosion. As noted above in 
Finding 6, the Director is approving subsection (k) only to the extent 
that it is applicable to areas previously disturbed by mining that were 
not reclaimed to the standards of the Pennsylvania program. With the 
exception noted above, however, the Director has determined that the 
proposed provisions are no less stringent than SMCRA and can be 
approved, provided that nothing in the approval authorizes the State to 
implement the provisions with respect to revised effluent limitations 
without approval by the EPA pursuant to the Clean Water Act.
    The commenter also stated that the term ``pollution abatement 
area'' is vaguely defined and not consistent with the definition of 
``coal remining operation'' (which is defined by the Clean Water Act to 
be only that area on which coal mining was conducted before August 3, 
1977). In response, the Director notes that the proposed definition of 
``pollution abatement area'' is intended to identify areas that are 
part of the permit area and which are causing or contributing to the 
baseline pollution load. As stated above in Finding 6, the proposed 
provisions must comply with 40 CFR part 434 concerning performance 
standards for coal mining point source discharges, and with Sec. 301(p) 
of the Federal Water Pollution Control Act (33 U.S.C. 1311(p)) 
concerning modified permits for coal remining operations. The effluent 
limitation standards will be identified jointly by the EPA and the 
State on a permit-by-permit basis during the development of the NPDES 
permit. Also, since unencountered discharges are not within the purview 
of Sec. 301(p) anyway, the proposed amendment is not inconsistent with 
that provision of the Clean Water Act.
7. Perpetual Treatment of Acid Mine Drainage
    One commenter asked how the coal industry will be responsible for 
any perpetual treatment of acid mine drainage from poorly constructed 
valley fill operations. In response, the Director notes that proposed 
Section 6.2(g) contains the provisions governing the treatment of 
discharges. Specifically, where a coal refuse disposal operation 
creates a new discharge or encounters a preexisting discharge, the 
refuse disposal operations shall comply with all applicable regulations 
of the department. That includes complying with the approved State 
effluent limitations, treatment requirements, and bond release 
requirements.
    Where coal refuse disposal operations cause the baseline pollution 
load to be exceeded, the operator must treat that discharge according 
to Sec. 6.2(g)(ii), (h), and (i). In addition to treating the 
discharge, the bond release criteria at Sec. 6.2(j) must be met prior 
to bond being released. Therefore, if the applicable effluent 
limitation standards are not met, treatment is required and bond will 
not be released.
8. Experimental Practices
    One commenter stated that this provision is over broad, and would 
allow an entirely different permit than would be issued under the 
Pennsylvania program for other surface coal mining operations. The 
commenter also stated that the provision should be disapproved because 
it doesn't require approval by the Secretary of each experimental 
practice.
    In response, the Director disagrees that the proposed language is 
over broad and represents an alternative permitting system. The 
proposed language authorizes, under the Pennsylvania program, the 
approval of permits which contain experimental practices. The 
amendments do not authorize a separate permitting system as the 
commenter suggests. While the proposed language is silent concerning 
approval of experimental practices by the Secretary, the Director is 
requiring, in Finding 7, that Secretarial approval be required by the 
implementing regulations which Pennsylvania will subsequently develop 
and submit for OSM approval.
9. Implementation Prior to Approval
    Numerous commenters asserted that the amendments should be 
disapproved because the State is currently reviewing and issuing 
permits under the proposed statutes without approval of OSM. For 
example, commenters assert that the State is inappropriately approving 
variances to stream buffer zones to allow the implementation of valley 
fills. In response, the Director notes that these comments do not bear 
on the issue which must be decided in this rulemaking, which is whether 
the proposed amendment is consistent with SMCRA and the Federal 
regulations.
    One commenter asserted that the amendments will encourage the use 
of abandoned coal refuse areas and mine sites rather than the use of 
virgin lands for coal refuse disposal operations. The use of such 
abandoned mine lands will eliminate hazards, improve water quality and 
enhance environmental conditions. In support of this assertion, the 
commenter stated that Pennsylvania Act 158, to which Act 114 is 
similar, provides incentives to remine abandoned mine lands, and has 
resulted in 218 special authorization permits and the successful 
reclamation of all but two

[[Page 19816]]

of those abandoned mine lands. The Director agrees that the proposed 
amendments have the potential to result in the reclamation of the 
environmentally damaged preferred sites.
10. Miscellaneous Comments
    One commenter stated that Pennsylvania's rivers and streams belong 
to its citizens, and that to allow for ``private concerns'' to damage 
or destroy these resources seems to be an unconstitutional taking, 
without just compensation. In response, the Director notes that only 
``takings'' by governmental entities, rather than by ``private 
concerns,'' are addressed by the United States Constitution.
    Another commenter stated that this amendment does not prohibit the 
placement of coal refuse on sites, preferred or otherwise, that contain 
``state threatened plants.'' In response, the Director notes that the 
Federal regulations at 30 CFR 8.16/817.97(b) prohibit surface mining 
activities which are likely to jeopardize the continued existence of 
endangered or threatened species listed by the Secretary of the 
Interior, pursuant to the Federal Endangered Species Act of 1973. This 
prohibition does not apply to species listed as endangered or 
threatened under only the state counterpart to the Federal Endangered 
Species Act.
    Other commenters stated that the amendment violates the guarantee 
of clean water provided for in the Pennsylvania State Constitution. The 
Director notes that these comments are outside of the scope of this 
rulemaking, since they are not relevant to the issue of whether the 
proposed amendment is consistent with SMCRA or the Federal regulations.
    Another commenter stated that the site selection provisions of 
Sec. 4.1, which prohibit the disposal of coal refuse on prime farmland 
unless it is on a preferred site, fail to define ``prime farmland.'' In 
response, the Director notes that the Pennsylvania approved program 
already defines prime farmland, at 25 Pa. Code Sec. 90.1, as ``lands 
which are defined by the Secretary of the United States Department of 
Agriculture in 7 CFR 657 (relating to prime and unique farmlands) and 
which have been historically used for cropland * * *.''
    A commenter asked if the proposed legislation provides terms to 
deny a permit for various reasons. The commenter also asked if the 
proposed legislation contains enough teeth to obtain compensation for 
the failure to comply with provisions of a permit or whether the State 
will be left with another debt from a failed permit. In response, the 
Director notes that the proposed coal refuse disposal amendments are an 
addition to the full requirements of the Pennsylvania program, and do 
not replace those requirements. Therefore, the State's authority to 
deny permits and withhold bond for applicable reasons still remains in 
effect.
    A commenter asked if the proposed legislation protects the entire 
watershed from the headwaters to the end. In response, the Director 
reiterates that all the applicable provisions of the approved 
Pennsylvania program continue to apply to all permit decisions 
concerning coal refuse disposal in addition to the proposed coal refuse 
disposal provisions. In addition, the Director notes that both the EPA 
and the USFWS have concurred with the proposed amendments. The EPA has 
concurred with the proposed amendments upon specifying several 
conditions that must be complied with concerning the protection of 
downstream water quality. The USFWS has concurred with the proposed 
amendments after obtaining assurance that the proposed provisions will 
not negatively affect the protection of threatened and endangered 
species as is currently provided for in the approved Pennsylvania 
program. As discussed above in the findings, the Director has 
determined that the proposed coal refuse disposal provisions are not 
inconsistent with the provisions of SMCRA.
    A commenter asked if the proposed provisions require the proper 
testing practices to determine amount, type, kinds, and species of life 
forms within the permitted area and adjacent areas, as well as the 
testing to determine the content of the refuse material so that one 
knows what is being buried. The commenter also asked if the proposed 
amendments contain provisions to sufficiently protect high quality as 
well as exceptional value rated streams, and if the proposed amendments 
address non-point pollution as well as single-point pollution in these 
permitted areas. In response, the Director reiterates that the proposed 
provisions are in addition to and do not replace the provisions of the 
approved Pennsylvania program. Therefore, the approved requirements for 
the protection of fish and wildlife, the protection of the hydrologic 
balance, the chemical analysis of the coal as well as strata above and 
below the coal, and the construction of the coal refuse disposal site 
continent to apply to coal refuse disposal areas.
    A commenter asked if the proposed provisions requires the site to 
be properly recovered within a set time and maintained for a sufficient 
period of time. In response, the Director notes that coal refuse 
disposal operations are subject to both bonding and bond release 
requirements of the approved Pennsylvania program. While the proposed 
amendment provide specific provisions for the release of bonds for 
pollution abatement areas, those provisions continue to require time 
requirements with which the operator must comply, including compliance 
with the five-year liability period.
    A commenter asked whether or not a permit should be obtained from 
the EPA under Section 402 due to water quality degradation caused by a 
valley fill operation. In response, the Director notes that the 
proposed amendments do not alter Section 402's requirements. If a 
permit is required under Section 402, it must still be obtained.

Environmental Protection Agency

    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 September 20, 1995, OSM solicited EPA's concurrence and comments 
on the proposed amendment (Administrative Record No. PA-837.02). EPA 
responded on January 30, 1997 (Administrative Record No. PA 837.63). 
The EPA provided the following comments and conditions on the proposed 
amendments.
    (a) Comments.
    (1) The EPA commended the portion of the proposed amendment which 
targets previously impacted areas for refuse disposal and requires 
reclamation of these areas.
    (2) The EPA recommended that proposed disposal of potentially 
acidic refuse in valley fills on non-impacted areas be subject to 
reviews under individual Section 404 U.S. Army Corps of Engineers 
permit, rather than coverage under the nationwide 404 permit. Although 
PADEP regulations require project reviews and alternatives analyses 
similar to that of Section 404(b)(1) guidelines, individual 404 permit 
reviews would allow more detailed and formal inputs by USFWS and the 
EPA.
    The Director concurs with this comment. The placement of 
potentially acidic refuse in valley fill could lead to serious water 
quality problems for downstream areas, and involvement of the USFWS and 
EPA through Section

[[Page 19817]]

404 permitting would strengthen the review process. The U.S. Army Corps 
of Engineers is responsible for the decision on whether a specific 
filling activity falls under an individual permit or under a nationwide 
404 permit. EPA must work with the PADEP through its NPDES program, and 
with the U.S. Army Corps of Engineers through its joint 
responsibilities under the Clean Water Act, to establish a system where 
proposed disposal of potentially acidic refuse in valley fills on non-
impacted areas would be subject to reviews under individual Section 404 
U.S. Army Corps of Engineers permits. The Director will continue to 
coordinate with EPA to understand how EPA has implemented its 
recommendation.
    (3) The EPA supports a cautious review of the factors that can be 
considered to decide if coal refuse disposal is to occur on 
``alternative sites,'' rather than on previously impacted areas 
(preferred sites), to assure that undue weight is not placed on 
alternative sites at environmental expense.
    The Director concurs with this comment. As stated above, PADEP is 
commended for developing a process to encourage the placement of fills 
on previously affected lands. However, under the program, the 
applicant's search radius for preferred sites (previously impacted 
lands) is controlled in a manner that limits the effectiveness of the 
process. Process effectiveness is limited because the applicant only 
must consider topographic conditions, transportation routes, and other 
economic and environmental factors on a site specific basis up to a one 
mile radius for existing operations and within a 25 square-mile area 
(approximately a 2.8 mile radius) for new operations. As a result, the 
search process may ignore sites outside the search radius that are 
economically and technically sound, and environmentally superior to 
areas inside the search radius. Therefore, OSM encourages PADEP to 
consider proposing statutory changes to this amendment which will 
increase the distance limitations, in order to increase the possibility 
that ``preferred sites'' will be used for coal refuse disposal.
    (4) The EPA stated that, based on its review, the proposed 
amendment does not appear to lessen the protection provided by PADEP 
regulations governing threatened and endangered species. However, the 
EPA stated, the USFWS is the authority on such matters and has 
indicated concern to the EPA that there may not be sufficient assurance 
of protection in previously impacted areas. EPA stated that an 
agreement between USFWS and OSM is necessary for resolution.
    The Director acknowledges, and shares EPA's concern for threatened 
and endangered species. As discussed above in Federal Agency comments, 
the PADEP has addressed USFWS concerns by revising the State's coal 
refuse disposal program guidance. In addition, on September 24, 1996, 
the USFWS issued a Biological Opinion and Conference Report on surface 
coal mining regulatory programs under SMCRA. In that report, the USFWS 
stated that surface coal mining and reclamation operations conducted in 
accordance with properly implemented Federal and State regulatory 
programs under SMCRA are not likely to jeopardize the continued 
existence of listed or proposed species, and are not likely to result 
in the destruction or adverse modification of designated or proposed 
critical habitats (Administrative Record Number PA 837.64). By letter 
dated April 7, 1998, the USFWS concurred that the revised Pennsylvania 
guidance document's provisions have satisfied USFWS concerns 
(Administrative Record Number PA 837.70).
    (5) The EPA stated that it supports stringent State reviews of 
measures for preventing acid formation and seepage on refuse disposal 
sites, and urged the prohibition of any project where the effectiveness 
or such measures is questionable. The EPA stated that past refuse 
disposal sites located in valley fills have resulted in acid seeps 
after closure. This possibility in the future is a major concern EPA 
has with the proposed amendment. The EPA also stated that recent 
discussions with PADEP have indicated that improved preventive measures 
will be required. Success of refuse disposal projects would depend on 
incorporation of such preventive measures as alkaline addition, piping 
streams under fills, capping fills to reduce infiltration, and 
installing diversion drains around the fills. Long-term treatment bonds 
also have been indicated by PADEP as a requirement in case preventive 
measures prove not to be completely effective. The EPA further stated 
that, according to PADEP, specifics on many decision factors affecting 
water quality would be determined on a case-by-case basis, included in 
policies or regulations, or a combination of these.
    The Director concurs with the need for stringent State reviews of 
measures for preventing acid formation and seepage on refuse disposal 
sites. The Director notes that new section 6.1(i) provides that new 
coal refuse disposal areas shall include a system to prevent adverse 
impacts to surface and ground water and to prevent precipitation from 
contacting the refuse. In addition, the Director notes (as discussed 
below at ``Conditions'') that the EPA will be reviewing all 
Pennsylvania permit applications that involve in-stream refuse 
disposal, and other permit applications as identified by the EPA to the 
PADEP. Such review of permit applications by the EPA should add an 
additional measure of protection for preventing acid formation and 
seepage on refuse disposal sites.
    (6) The EPA urged the PADEP to evaluate potential cumulative 
downstream impacts of proposed refuse disposal sites in combination 
with mines and other facilities in affected watersheds. This could be 
addressed as part of the Cumulative Hydrological Impact Assessment 
required by SMCRA for mining-related permits.
    The Director concurs with this comment and notes that the 
Pennsylvania surface and underground coal mining regulations 25 Pa. 
Code, Chapter 86.37(a)(4) require such a cumulative hydrological impact 
assessment. Section 86.37(a)(4) provides that the regulatory authority 
must find in writing that an assessment of the probable cumulative 
impacts of all anticipated coal mining in the general area on the 
hydrologic balance has been made by the PADEP. In addition, section 
90.35 (concerning coal refuse disposal, protection of the hydrologic 
balance) provides that an application must contain a determination of 
the probable hydrologic consequences of the proposed coal refuse 
disposal activities on the proposed permit area and adjacent area.
    (7) The EPA recommended that the EPA and USFWS be invited to 
contribute to any mitigation policy work group. The EPA stated that it 
is the EPA's understanding that a mitigation policy for placement of 
refuse in valley fills has not yet been determined by Pennsylvania. 
Such mitigation should take into consideration the value and unspoiled 
nature of running streams in areas not previously impacted and the 
irreplaceable nature of such streams to Pennsylvania and the United 
States.
    The Director concurs with this comment, and encourages the State to 
include the EPA and USFWS in any mitigation policy work group that is 
created.
    (b) Conditions.
    (1) EPA stated that to emphasize its concern over in-stream refuse 
disposal, its concurrence is conditioned on the following: (a) PADEP 
notification to EPA within 30 days of receipt of a joint SMCRA/NPDES 
permit application for

[[Page 19818]]

an in-stream refuse disposal project, and (b) PADEP submittal to EPA of 
any joint SMCRA/NPDES application or permit information which EPA 
specifically requests for an effective review. EPA also stated that it 
will send a letter to PADEP identifying the categories of mining 
related permits which EPA will request for review.
    Under 40 CFR 123.24(d)(6) and 1991 Memorandum of Agreement (MOA) 
between EPA and PADEP, EPA has the authority to review and comment on 
draft National Pollutant Discharge Elimination System (NPDES) permits 
for all coal mining activities, including refuse disposal. As part of 
the MOA, EPA waived review of routine mining permit applications. 
However, EPA will not review all permit applications that involve in-
stream refuse disposal, and other permit applications as identified by 
the EPA to the PADEP.
    The Director concurs with this condition, and believes that EPA 
review of all permit applications related to in-stream refuse disposal 
and other permit applications identified by the EPA will help assure 
that the proposed coal refuse disposal in Pennsylvania will meet the 
requirements of the Clean Water Act. In addition, the EPA condition 
will provide the EPA with the appropriate mechanism to monitor 
situations where potentially acidic refuse might be placed in valley 
fills on non-impacted areas. This will ensure that the EPA and the U.S. 
Army Corps of Engineers will have an opportunity to determine whether 
the proposed filling activity should be subject to reviews under 
individual Section 404 permits (see discussion under EPA comment number 
2 above). The Director will continue to coordinate with EPA to 
understand how EPA has implemented this condition of its approval.
    (2) EPA identified the following conditions under which it will not 
object to PADEP issuance of NPDES permits for proposed in-stream refuse 
disposal facilities: (1) Compliance with Sec. 404 permit requirements; 
(2) no feasible alternatives; (3) protection of existing and designated 
downstream aquatic life and uses; and (4) adequate mitigation. Under 40 
CFR 122.4(d), NPDES permits must comply with state water quality 
standards, including non-degradation requirements. However, the EPA 
recognizes that there may be certain circumstances which may limit 
alternatives to in-stream refuse disposal facilities.
    The Director concurs with these four conditions. The Director 
recognizes that the responsibility for assuring compliance with these 
conditions is with the EPA and the U.S. Army Corps of Engineers under 
the applicable provisions of the Clean Water Act. The EPA will review 
all proposals for in-stream disposal of coal refuse (see Condition #1 
above). In addition, EPA will work with the PADEP through its NPDES 
program and with the U.S. Army Corps of Engineers through its joint 
responsibilities under the Clean Water Act, to establish a system where 
proposed disposal of potentially acidic refuse in valley fills on non-
impacted areas would be subject to reviews under individual Sec. 404 
permits (see Comment #2 above).
    The Clean Water Act NPDES program and Sec. 404 permit program 
contain the requirements for considering alternatives, establishing 
mitigation, and protecting existing and designated aquatic life and 
uses. As provided under Condition 1 above, EPA 
review of NPDES permits will necessarily consider factors that could 
affect existing uses of streams, such as the identification of the 
potential for acid discharges, the feasibility of implementation 
methods such as the piping of streams beneath fills, and the validity 
of proposed measures to protect the existing uses of streams. Through 
their joint responsibilities and authorities under Sec. 404, the U.S. 
Army Corps of Engineers and EPA will be involved in the approval of in-
stream refuse disposal. Accordingly, OSM expects that EPA and the Corps 
of Engineers will immediately notify OSM whenever any of these four 
conditions has not been implemented. The Director will continue to 
coordinate with EPA to understand how EPA has implemented its 
conditions of approval.
    (3) The EPA stated that OSM must undertake appropriate consultation 
with the USFWS to ensure compliance with Sec. 7 of the Endangered 
Species Act. Such consultation must be undertaken whenever disposal of 
coal refuse is proposed in any previously impacted area containing 
Federal threatened or endangered plants or animals, as allowed under 
proposed Sec. 4.1(B) of the amendment. Under the Endangered Species 
Act, the USFWS must provide approval and issue a requisite incidental 
take permit whenever the proposed activities would affect the continued 
existence of endangered or threatened species or result in the 
destruction or adverse modification of their critical habitats.
    The Director concurs with this condition and has, accordingly, 
consulted with USFWS. As a consequence of these consultations, OSM has 
asked the PADEP to amend their State Policy concerning coal refuse 
disposal program guidance to address the USFWS concerns. The PADEP 
subsequently amended the coal refuse disposal policy (Administrative 
Record Number PA-837.68), and USFWS has agreed that the current State 
policy guidance document concerning coal refuse disposal has satisfied 
its concerns (Administrative Record Number PA-837.70).
    (4) The EPA stated that where discharges from refuse disposal 
activities would cause or contribute to an exceedence of water quality 
standards, the NPDES permit must contain water quality-based effluent 
limitations in compliance with 40 CFR 122.44(d). Adequate monitoring 
and analysis of the background water quality of the receiving stream 
must be done prior to permit issuance and as part of the permit 
development process.
    The Director concurs with this condition and notes, as discussed in 
condition #1 above, that the EPA will review all proposed permit 
applications that concern in-stream disposal of coal refuse, as well as 
other selected permits identified by the EPA. Therefore, EPA will, as 
part of its review, help assure that appropriate water quality 
standards are properly set for every permit related to in-stream coal 
refuse disposal.
    The EPA also stated that it is its understanding that 
Sec. 6.2(g)(1)(i) of the proposed amendment requires that discharges 
resulting from any refuse disposal activities, including in-stream 
valley fills, must comply with PADEP regulations that include the same 
effluent limits as described in NPDES effluent guideline regulations 
for coal preparation plants and associated areas (40 CFR part 434--
subpart B). The EPA stated that unaffected water diverted around or 
piped under fills would not be subject to effluent guideline 
regulations under 40 CFR part 434.
    The Director concurs with this condition. In this condition, the 
EPA is clarifying that EPA's understanding of Sec. 6.2(g)(1)(i) is that 
coal refuse disposal operations that encounter a preexisting discharge 
shall comply with the effluent limitations that will be described in 
the NPDES permit, and which will be consistent with the effluent 
guideline limitations for coal preparation plants and associated areas 
as identified at 40 CFR part 434--subpart B. However, the EPA notes 
that discharges unaffected by and diverted around or piped under fills 
(not encountered) would not be subject to the effluent guidelines at 40 
CFR part 434--subpart B. Such discharges that are not encountered shall 
meet the baseline pollution load standard as defined at Sec. 3(1.3), 
and shall be treated in accordance with the provisions at 
Sec. 6.2(g)(1)(ii). The EPA will, as part of

[[Page 19819]]

its review of all NPDES permits related to in-stream refuse disposal 
and other permits, help assure that adequate monitoring and analysis of 
the background water quality of the receiving stream will be done prior 
to permit issuance.
    (5) The EPA stated that appropriate measures must be planned and 
implemented for coal refuse disposal facilities which will prevent long 
term acid drainage after closure.
    The Director concurs with this condition. As discussed in condition 
#1 above, the EPA will review all proposed permit applications that 
concern in-stream disposal of coal refuse, as well as other selected 
permits identified by the EPA. Consequently, the EPA will be able to 
provide guidance to the State to help assure the prevention of long 
term acid drainage after closure.

V. Director's Decision

    Based on the above findings, and except as noted below, the 
Director is approving the proposed amendment as submitted by 
Pennsylvania on September 14, 1995.
    As discussed in Finding 2 above, the definition of ``coal refuse 
disposal activities'' at section 3(2.1) is approved with the 
requirement that the Pennsylvania program be further amended to clarify 
the meaning of the phrase ``excess soil and related materials.''
    As discussed in Finding 4 above, the Director is approving 
subsection 4.1(b) only to the following extent. With respect to 
preferred sites, the State will not approve (via the Site Selection 
process) or permit (via requirements in Chapters 86 or 90) a site that 
is known or likely to contain Federally listed threatened or endangered 
species, unless the State demonstrates and the USFWS concurs that the 
proposed activity is not likely to adversely affect Federally listed 
threatened or endangered species or result in the ``take'' of Federally 
listed or endangered species in violation of Section 9 of the 
Endangered Species Act.
    As discussed in Finding 5 above, the Director is approving 
subsection 6.1(h)(5) only to the extent that it authorizes stream 
buffer zone variances for coal refuse disposal activities that will not 
cause or contribute to the violation of water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream. Also, the Director is requiring 
Pennsylvania to amend its program to authorize stream buffer zone 
variances for coal refuse disposal activities only where such 
activities will not cause or contribute to the violation of applicable 
State or Federal water quality standards, and will not adversely affect 
water quality and quantity, or other environmental resources of the 
stream.
    As discussed in Finding 6 above, Section 6.2 is approved, except as 
noted below, provided nothing in this approval authorizes the State to 
implement these provisions with respect to revised effluent limitations 
without approval by the EPA pursuant to the Clean Water Act.
    Subsection 6.2(g)(2) is approved to the extent that it applies to 
final bond releases on permits other than the permit for which the 
allegation that the baseline pollution load has been exceeded is 
pending.
    Subsection 6.2(h) is approved to the extent that the proposed 
language in the first sentence of Sec. 6.2(h) pertains only to 
subsection 6.2(g)(1)(ii), which governs discharges that are not 
encountered. Also, the Director is requiring that the State further 
amend the Pennsylvania program to clarify that Subsection 6.2(h) of the 
Coal Refuse Disposal Act pertains to preexisting discharges that are 
not encountered.
    Subsections 6.2(g), (h), and (i) are approved with the 
understanding that the implementing regulations to be developed by 
Pennsylvania (as is required by Section 3.2(b) of the Coal Refuse 
Disposal Act) to implement the provisions at Section 6.2 will clarify 
that preexisting discharges that are encountered must be treated to the 
State effluent standards at Chapter 90, subchapter D at 90.102.
    Subsection 6.2(k) is approved only to the extent that it is 
applicable to areas previously disturbed by mining that were not 
reclaimed to the standards of the Pennsylvania program. In addition, 
the Director is requiring that the State further amend the Pennsylvania 
program to be no less effective than 30 CFR 816.116(b)(5), by limiting 
the application of the revegetation standards under Subsection 6.2(k) 
of its Coal Refuse Disposal Act, to areas that were previously 
disturbed by mining and that were not reclaimed to the State 
reclamation standards.
    Subsection 6.2(l) is approved to the extent the PADEP will not 
approve a special authorization when such an authorization would result 
in the site being reclaimed to lesser standards than could be achieved 
if the forfeited bond moneys were used to reclaim the site to the 
standards approved in the original permit under which the bond moneys 
were forfeited. In addition, the Director is requiring that the State 
further amend the Pennsylvania program to clarify that under Subsection 
6.2(l) of its Coal Refuse Disposal Act, a special authorization for 
coal refuse disposal operations will not be granted, when such an 
authorization would result in the site being reclaimed to lesser 
standards than could be achieved if the moneys paid into the Fund, as a 
result of a prior forfeiture on the area, were used to reclaim the site 
to the standards approved in the original permit under which the bond 
moneys were forfeited.
    As discussed above in Finding 7 concerning Section 6.3--
Experimental Practices, the Director is requiring that the State 
further amend the Pennsylvania program by adding implementing rules no 
less effective than 30 CFR 785.13, and no less stringent than SMCRA 
Section 711 and which clarify that experimental practices are only 
approved as part of the normal permit approval process and only for 
departures from the environmental protection performance standards, and 
that each experimental practice receive the approval of the Secretary.
    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 Decision

    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 his 
oversight of the Pennsylvania program, the Director will recognize only 
the statutes, regulations and other materials approved by him, 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

[[Page 19820]]

(OMB) under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
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 date 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: April 14, 1998.
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           Date of final publication              Citation/description      
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
September 13, 1995....................  April 22, 1998........................  Pennsylvania law Act 1994-114   
                                                                                 concerning the special         
                                                                                 authorization for refuse       
                                                                                 disposal in areas previously   
                                                                                 affected by mining which       
                                                                                 contain pollutional discharges:
                                                                                 Title and 1; 3; 3.2(b); 4.1;   
                                                                                 6.1(h)(5), (i); 6.2; 6.3; 15.1.
                                                                                                                
----------------------------------------------------------------------------------------------------------------

    3. Section 938.16 is amended by adding new paragraphs (vvv) through 
(bbbb) to read as follows:

Sec. 938.16  Required regulatory program amendments.

* * * * *
    (vvv) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to clarify the meaning of the term ``excess soil and related 
materials'' as that term is used in the definition of ``coal refuse 
disposal activities.''
    (www) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to authorize stream buffer zone variances for coal refuse 
disposal activities only where such activities will not cause or 
contribute to the violation of applicable State or Federal water 
quality standards, and will not adversely affect water quality and 
quantity, or other environmental resources of the stream.
    (xxx) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to clarify, in the regulations to be developed to implement the 
provisions of section 6.2 of the Coal Refuse Disposal Act (as is 
required by Section 3.2)(b) of the Coal Refuse Disposal Act), that 
preexisting discharges that are encountered must be treated to the 
State effluent standards at Chapter 90, subchapter D at 90.102.
    (yyy) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to clarify that Subsection 6.2(h) of the Coal Refuse Disposal 
Act pertains to preexisting discharges that are not encountered.
    (zzz) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to be no less effective than 30 CFR 816.116(b)(5), by limiting 
the application of the revegetation standards under Subsection 6.2(k) 
of its Coal Refuse Disposal Act, to areas that were previously 
disturbed by mining and that were not reclaimed to the State 
reclamation standards.
    (aaaa) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program to clarify that under Subsection 6.2(l) of its Coal Refuse 
Disposal Act, a special authorization for coal refuse disposal 
operations will not be granted, when such an authorization would result 
in the site being reclaimed to lesser standards than could be achieved 
if the moneys paid into the Fund, as a result of a prior forfeiture on 
the area, were used to reclaim the site to the standards approved in 
the original permit under which the bond moneys were forfeited.

[[Page 19821]]

    (bbbb) By July 1, 1998, Pennsylvania shall amend the Pennsylvania 
program by adding implementing rules no less effective than 30 CFR 
785.13, and no less stringent than SMCRA Section 711 and which clarify 
that experimental practices are only approved as part of the normal 
permit approval process and only for departures from the environmental 
protection performance standards, and that each experimental practice 
receive the approval of the Secretary.

[FR Doc. 98-10632 Filed 4-21-98; 8:45 am]
BILLING CODE 4310-05-M
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