19802 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

The analysis shows that this final rule

is not economically significant under

Executive Order 12866 and that the

agency has considered the burden to

small entities. Based on the above

analysis, the agency does not believe

that the majority of manufacturers will

incur a significant economic impact.

However, there may be a few that could

incur significant reformulation costs or

inventory losses. Thus, this economic

analysis, together with other relevant

sections of this document, serves as the

agency’s final regulatory flexibility

analysis, as required under the

Regulatory Flexibility Act. Finally, this

analysis shows that the Unfunded

Mandates Reform Act does not apply to

the final rule because it would not result

in an expenditure in any 1 year by State,

local, and tribal governments, in the

aggregate, or by the private sector, of

$100 million.

V. Environmental Impact

The agency has determined under 21

CFR 25.31(c) that this action is of a type

that does not individually or

cumulatively have a significant effect on

the human environment. Therefore,

neither an environmental assessment

nor an environmental impact statement

is required.

List of Subjects in 21 CFR Part 310

Administrative practice and

procedure, Drugs, Labeling, Medical

devices, Reporting and recordkeeping

requirements.

Therefore, under the Federal Food,

Drug, and Cosmetic Act and under

authority delegated to the Commissioner

of Food and Drugs, 21 CFR part 310 is

amended as follows:

PART 310—NEW DRUGS

1. The authority citation for 21 CFR

part 310 continues to read as follows:

Authority: 21 U.S.C. 321, 331, 351, 352,

353, 355, 356, 357, 360b–360f, 360j, 361(a),

371, 374, 375, 379e; 42 U.S.C. 216, 241,

242(a), 262, 263b–263n.

2. Section 310.545 is amended by

adding paragraphs (a)(27) and (a)(28), by

revising paragraph (d) introductory text,

by reserving paragraphs (d)(26) and

(d)(27), and by adding paragraph (d)(28)

to read as follows:

§ 310.545 Drug products containing

certain active ingredients offered over-thecounter (OTC) for certain uses.

(a) * * *

(27) Topical antimicrobial drug

products—(i) First aid antiseptic drug

products.

Ammoniated mercury

Calomel (mercurous chloride)

Merbromin (mercurochrome)

Mercufenol chloride (orthochloromercuriphenol, orthohydroxyphenylmercuric chloride)

Mercuric chloride (bichloride of

mercury, mercury chloride)

Mercuric oxide, yellow

Mercuric salicylate

Mercuric sulfide, red

Mercury

Mercury oleate

Mercury sulfide

Nitromersol

Para-chloromercuriphenol

Phenylmercuric nitrate

Thimerosal

Vitromersol

Zyloxin

(ii) Diaper rash drug products.

Para-chloromercuriphenol

Any other ingredient containing

mercury

(28) Vaginal contraceptive drug

products.

Dodecaethylene glycol monolaurate

(polyethylene glycol 600 monolaurate)

Laureth 10S

Methoxypolyoxyethyleneglycol 550

laurate

Phenylmercuric acetate

Phenylmercuric nitrate

Any other ingredient containing

mercury

* * * * *

(d) Any OTC drug product that is not

in compliance with this section is

subject to regulatory action if initially

introduced or initially delivered for

introduction to interstate commerce

after the dates specified in paragraphs

(d)(1) through (d)(28) of this section.

* * * * *

(28) October 22, 1998, for products

subject to paragraphs (a)(27) and (a)(28)

of this section.

Dated: April 8, 1998.

William K. Hubbard,

Associate Commissioner for Policy

Coordination.

[FR Doc. 98–10578 Filed 4–21–98; 8:45 am]

BILLING CODE 4160–01–F

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.

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
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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 §§ 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 §§ 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 §§ 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 §§ 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 wasterock, 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.’’
19804 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 §§ 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 §§ 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 §§ 86.37(a)(15)

and 90.150(d) concerning endangered
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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 § 4.1(b). The Coal Refuse

Disposal Program Guidance specifically

clarifies the intended implementation of

§ 4.1(b) related to threatened or

endangered species. Pennsylvania’s

policy concerning the implementation

of § 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 § 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 § 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 § 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, § 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.

§§ 1531–1544).

In § 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 § 87.50,

§ 88.33, § 89.74, and § 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 § 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
19806 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 § 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 § 86.31

concerning public notices of filing of

permit applications, and is consistent
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 19807

with the notice required for steam buffer

zone variance applications, at 25 Pa.

Code § 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

§ 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 § 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 § 515(b)(10), concerning

protection of the hydrologic balance,

requires the avoidance of acid or other

toxic mine drainage. SMCRA

§ 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, § 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

§ 90.102.

The Director finds the proposed

language is consistent with SMCRA

§ 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
19808 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 § 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 § 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
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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 (§ 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 § 404 permits, rather

than coverage under the nationwide 404

permit.

The EPA has clarified that its

understanding of § 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 § 3(1.3), and shall be treated

in accordance with the provisions at

§ 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 § 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

§ 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

§ 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 preexisting 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
19810 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 § 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 § 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,
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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 § 3(1.3), and shall be treated

in accordance with the provisions at

§ 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;
19812 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

(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 § 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 § 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 § 9

of the Endangered Species Act, 16

U.S.C. § 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 § 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 § 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 § 4.1(b). PADEP stated

that § 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,

§ 4.1(b) prohibits refuse disposal on non

preferred sites. The State also contends

that, while § 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

§ 86.37(a)(15) and § 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 § 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,
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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. § 1255(b).

The USFWS’s Clean Water Act

comments concern the proposed

variance to the 100-foot stream buffer

zone provision at § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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,
19814 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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

§ 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 § 86.31(a).

One commenter asserted that allowing

the placement of mine wastes within

100 feet of streams would likely pose a

violation of § 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 § 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 § 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 § 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 § 4.1(a) of this amendment. Therefore,

the site selection criteria contained in

§ 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 § 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, § 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 § 90.102.

6. Alternate Effluent Limitations

One commenter stated that the

proposed amendments (under § 6.2) are

not consistent with the 1992 Energy

Policy Act amendments, or the alternate

effluent limitations of § 301(p) of the

Clean Water Act, because the

amendments appear to inappropriately
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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

§ 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

§ 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 § 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-bypermit 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 § 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 § 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 § 6.2(g)(ii), (h),

and (i). In addition to treating the

discharge, the bond release criteria at

§ 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
19816 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 § 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 § 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 singlepoint 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
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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
19818 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

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 instream 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

§ 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 nondegradation 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 instream 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 § 404 permits (see Comment

#2 above).

The Clean Water Act NPDES program

and § 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 § 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

§ 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 § 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 § 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

§ 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 § 3(1.3), and shall be treated

in accordance with the provisions at

§ 6.2(g)(1)(ii). The EPA will, as part of
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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 instream 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 § 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
19820 Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations

(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:

§ 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:

§ 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.
Federal Register / Vol. 63, No. 77 /Wednesday, April 22, 1998 /Rules and Regulations 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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 943

[SPATS No. TX–040–FOR]

Texas Regulatory Program and

Abandoned Mine Land Reclamation

Plan

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving a proposed

amendment to the Texas regulatory

program and abandoned mine land

reclamation (hereinafter referred to as

the ‘‘Texas program’’) under the Surface

Mining Control and Reclamation Act of

1977 (SMCRA). The amendment

consists of recodification of the Texas

Coal Mining Regulations into the Texas

Administrative Code at Title 16, Chapter

12. The amendment is intended to

conform the Texas Coal Mining

Regulations to Texas Administrative

Code formatting syntax, to correct

typographical errors, and to allow for

the publication of the rules in the Texas

Administrative Code in full text rather

than by reference.

EFFECTIVE DATE: April 22, 1998.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa

Field Office, Office of Surface Mining

Reclamation and Enforcement, 5100

East Skelly Drive, Suite 470, Tulsa,

Oklahoma 74135–6548, Telephone:

(918) 581–6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

II. Submission of the Proposed Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the Texas Program

On February 16, 1980, the Secretary of

the Interior conditionally approved the

Texas program. Background information

on the Texas program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval can be found in the February

27, 1980, Federal Register (45 FR

12998). Subsequent actions concerning

the conditions of approval and program

amendments can be found at 30 CFR

943.10, 943.15, and 943.16.

On June 23, 1980, the Secretary of the

Interior approved the Texas plan.

Background information on the Texas

plan, including the Secretary’s findings,

the disposition of comments, and the

approval of the plan can be found in the

June 23, 1980, Federal Register (45 FR

41937). Subsequent actions concerning

the Texas plan and amendments to the

plan can be found at 30 CFR 943.25.

II. Submission of the Proposed

Amendment

By letter dated January 23, 1998

(Administrative Record No. TX–645),

Texas submitted a proposed amendment

to its program pursuant to SMCRA.

Texas submitted the proposed

amendment at its own initiative. Texas

proposed to repeal § 11.221 at Title 16

of the Texas Administrative Code

(TAC), which adopts by reference the

Texas Coal Mining Regulations (TCMR),

and to recodify these regulations into

the Texas Administrative Code at Title

16, Chapter 12 in full text.

OSM announced receipt of the

proposed amendment in the February

13, 1998, Federal Register (63 FR 7356),

and in the same document opened the

public comment period and provided an

opportunity for a public hearing or

meeting on the adequacy of the

proposed amendment. The public

comment period closed on March 16,

1998. Because no one requested a public

hearing or meeting, none was held.

During its review of the amendment,

OSM identified concerns relating to

minor wording errors, typographical

errors, and citation reference errors.

OSM notified Texas of these concerns

by fax dated March 5, 1998, and by

letter dated March 10, 1998

(Administrative Record Nos. TX–645.05

and TX–645.07, respectively). By letter

dated March 25, 1998 (Administrative

Record No. TX–645.10), Texas

responded to OSM’s concerns by

submitting revisions to its proposed

program amendment that correct all of

the errors identified. Because the

revisions pertained to the correction of

nonsubstantive editorial-type errors,

OSM did not reopen the public

comment period.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings concerning the proposed

amendment.

Recodification of Texas’ Regulations.

Texas proposed to codify TCMR Parts

700 through 850, pertaining to surface

coal mining and reclamation operations,

at 16 TAC §§ 12.1 through 12.710. Texas

also proposed to codify TCMR

§§ 051.800 through 051.817, pertaining

to the Texas abandoned mine land

reclamation program, at 16 TAC

§§ 12.800 through 12.817. Texas

proposed the simultaneous repeal of 16

TAC § 11.221 and adoption of the new

sections at 16 TAC Chapter 12 for the

purpose of renumbering the existing

regulations and incorporating the text

into the Texas Administrative Code. No

requirements were proposed to be

added to or deleted from the existing

regulations. Minor changes to the

existing regulations were proposed to

conform them to the Texas

Administrative Code formatting syntax;

to update information on addresses; to

correct grammar, punctuation, and

capitalization errors; and to update

internal references.

The Director finds that the proposed

recodification is nonsubstantive in

nature and Texas’ proposed regulations

at 16 TAC Chapter 12 are no less

effective than the Federal regulations.

Therefore, the Director is approving the

recodification of Texas’ regulations.

IV. Summary and Disposition of

Comments

Public Comments

OSM solicited public comments on

the proposed amendment, but none

were received.

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 Texas program

(Administrative Record No. TX–645.03).

On February 23, 1998 (Administrative

Record No. TX–645.08), the U.S. Army

Corps of Engineers’ commented that the

proposed amendment was satisfactory.

Environmental Protection Agency (EPA)

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

OSM is required to obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated