Pennsylvania Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-113-FOR]

Pennsylvania Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed

amendment to the Pennsylvania regulatory program (hereinafter referred

to as the ``Pennsylvania program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). Pennsylvania proposed revisions

and additions to its rules pertain to: surface and underground mining

definitions, incidental coal extraction, permit approval, permit

renewal, coal exploration, bonding, permit applications, operation and

reclamation plans, environmental protection standards, anthracite bank

removal and reclamation standards, refuse removal standards, coal

preparation facilities, underground mining erosion and sedimentation

control standards, impoundments, subsidence control, and coal refuse

disposal permit applications and performance standards. The amendment

is intended to revise the Pennsylvania program to be consistent with

the corresponding Federal regulations.

EFFECTIVE DATE: November 7, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert J. Biggi, Director, Harrisburg Field Office, Harrisburg

Transportation Center, Third Floor, Suite 3C, 4th and Market Streets,

Harrisburg, PA 17101. Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Pennsylvania Program

On July 31, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background information on the

Pennsylvania program, including the Secretary's findings, and the

disposition of comments, and the conditions of approval can be found in

the July 31, 1982, Federal Register (47 FR 33050). Subsequent actions

concerning conditions of approval and program amendments can be found

at 30 CFR 938.11, 938.12, 938,15, and 938.16.

II. Submission of the Proposed Amendment

By letter dated January 23, 1996 (Administrative Record No. PA-

838.00), Pennsylvania submitted a proposed amendment to its program

pursuant to SMCRA in response to the required program amendments at 30

CFR 938.16 (g) through (ii), with the exception of (h). Pennsylvania

proposed to revise sections 86-90 of its Coal Mining Regulations

(Regulatory Reform III).

OSM announced receipt of the proposed amendment in the February 28,

1996 Federal Register (61 FR 7446), and in the same document opened the

public comment period and provided an opportunity for a public hearing

on the adequacy of the proposed amendment. The public comment period

closed on March 29, 1996.

During its review of the amendment, OSM identified concerns

relating to the following sections of Pennsylvania's regulations:

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Section Topic

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86.5(i)3.................................. Administrative Review.

86.5(m)................................... Notification.

No PA Counterpart......................... Public Comment Period,

Inspections, Administrative

Review.

86.55(j).................................. Permit Renewal Applications.

87.108(c), 89.24(c), 90.108(c)............ Siltation Structures.

88.105(b), 88.106(a), 88.201(b), Water Monitoring.

88.202(a), 88.305(b), 88.306(a).

88.321, 90.133............................ Noncoal Waste Disposal.

87.125(a)................................. Preblast Survey.

87.127(i)................................. Vibration Limit.

No PA Counterpart......................... Blast Monitoring.

87.124(b)................................. Blasting Schedule.

No PA Counterpart......................... Blast Design.

87.127(f)................................. Flyrock

87.129(4)................................. Blasting.

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OSM notified Pennsylvania of these concerns by letter dated

February 21, 1997. By letter dated March 28, 1997, Pennsylvania

responded to OSM's concerns by submitting additional explanatory

information and by proposing to make certain revisions to its

regulations during its submission of Regulatory Reform IV. Because the

additional information was explanatory in nature and did not constitute

a major revision of the original submission, OSM did not reopen the

comment period.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment. Revisions not specifically discussed below concern

nonsubstantive wording changes, or revised cross-references and

paragraph notations to reflect organizational changes resulting from

this amendment.

A. Revisions to Pennsylvania's Regulations That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

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State regulation Subject Federal counterpart

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86.1....................................... Definition--``MSHA''.............................. 30 CFR 701.5.

86.1....................................... Definitions--``Cumulative Measurement Period,''... .......................................................

``Cumulative Production,'' ``Cumulative Revenue,'' 30 CFR 702.5.

``Mining Area,'' ''Other Minerals.''.

86.5(a)-(e)................................ Extraction of Coal................................ 30 CFR 702.11 (a), (b), (d).

86.5(f).................................... Public Availability of Information................ 30 CFR 702.13.

86.5(g).................................... Application Requirements.......................... 30 CFR 702.12.

86.5(h) (excluding (h)(2))................. Exemption Requirements............................ 30 CFR 702.11(c), 702.14.

86.5(i)(1), (2)............................ Exemption Determination........................... 30 CFR 702.11(e)(1), (2).

86.5(j)(1)-(3)............................. Conditions of Exemption........................... 30 CFR 702.15(a)-(c).

86.5(j)(4)................................. Reports........................................... 30 CFR 702.5(a)(2), 702.18.

86.5(k).................................... Stockpiling....................................... 30 CFR 702.16.

[[Page 60170]]

86.5(l).................................... Compliance Review................................. 30 CFR 702.17(a).

86.5(n).................................... Revocation........................................ 30 CFR 702.17(c)(3).

86.5(o).................................... Enforcement....................................... 30 CFR 702.17(c)(2).

86.55(g)(6)................................ Permit Renewal.................................... 30 CFR 774.15(c)(iv).

86.133(g).................................. Coal Exploration.................................. 30 CFR 815.15(g).

86.156(b).................................. Bonds............................................. 30 CFR 800.16(e)(1).

86.175(b)(3)............................... Bond Release...................................... 30 CFR 800.40(c)(2).

86.182(e).................................. Bond Forfeiture................................... 30 CFR 800.50(b)(2).

86.182(f)(1)............................... Bond Forfeiture................................... 30 CFR 800.50(d)(1).

87.46(b)(3)(i)............................. Surface Mines--Surface Water...................... 30 CFR 780.21(b)(2).

87.69(b)(4)................................ Hydrologic Balance................................ 30 CFR 780.21(i), (j).

87.127(e)(2)............................... Explosives--Surface Blasting...................... 30 CFR 816.67(b)(1).

87.127(j).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(3).

87.127(n).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(2)(i).

87.127(p).................................. Explosives--Surface Blasting...................... 30 CFR 816.67(d)(4).

87.131(n).................................. Disposal of Excess Spoil.......................... 30 CFR 816.71(h)(2).

87.135(a).................................. Protection of Underground Mining.................. 30 CFR 816.79.

87.138(c).................................. Protection of Fish, Wildlife and Related 30 CFR 816.97(c).

Environmental Values.

88.24(b)(4)(i)............................. Anthracite Coal Mining............................ 30 CFR 780.22(b)(2)(ii), (iii).

88.24(b)(4)(ii)............................ Anthracite Coal Mining............................ 30 CFR 780.22(d).

88.26(b)(2)(i)............................. Anthracite--Surface Water......................... 30 CFR 780.21(b)(2).

88.49(b)(2)................................ Anthracite--Hydrologic Balance.................... 30 CFR 780.21(i).

88.54...................................... Anthracite-Protection of Underground Mining....... 30 CFR 816.79.

88.61(b)(1)................................ Anthracite-Prime Farmlands........................ 30 CFR 785.17(c)(1).

88.284..................................... Anthracite-Sealing of Drilled Holes and 30 CFR 816.14.

Exploratory Openings.

88.491(d)(2)(A)............................ Anthracite--Surface Water......................... 30 CFR 780.21(b)(2).

88.491(j).................................. Anthracite--Permit Applications................... 30 CFR 780.15(c).

88.492(d)(2)(iii).......................... Anthracite-Ground and Surface Water Monitoring 30 CFR 780.21(i)(1), (j)(2).

Plans.

89.34(a)(1)(iii), (2)(i), (2)(ii).......... Hydrology-Underground Mining And Coal Preparation 30 CFR 784.14(h), (b)(2), (i).

Facilities.

89.82(d)................................... Performance Standards............................. 30 CFR 817.97(c).

89.172(b).................................. Coal Preparation.................................. 30 CFR 785.21(c).

90.14(b)(3)(i)............................. Coal Refuse--Surface Water........................ 30 CFR 780.21(b)(2).

90.35(b)(3)................................ Ground and Surface Water Monitoring Plans......... 30 CFR 780.21(i)(1), (j)(2).

90.150(c).................................. Protection of Fish, Wildlife and Related 30 CFR 816.97(c).

Environmental Values.

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Because the above proposed revisions re identical in meaning to the

corresponding Federal regulations, the Director finds that

Pennsylvania's proposed rules are no less effective than the Federal

rules.

B. Revisions to Pennsylvania's Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

1. 86.1/87.1--Definitions

Pennsylvania is proposing to amend the definition of ``surface

mining activities'' to include the construction of a road or similar

disturbance for any purpose related to a surface mining activity,

including that of a moving or walking dragline or other equipment, or

for the assembly or disassembly or staging of equipment. The Director

finds that definition proposed by Pennsylvania is no less effective

than the Federal definition at 30 CFR 700.5. The proposed revision also

satisfies the required amendment at 30 CFR 938.16(g) which required

Pennsylvania to amend its definition to make it clear that the

construction of any road, or similar disturbance, shall be deemed a

surface mining activity and will be regulated.

2. 86.5(h)(2)--Extraction of Coal

Pennsylvania is proposing to require in this subsection that no

request for an exemption will be approved unless the applicant can show

that the coal to be produced will be from the geological stratum above

the deepest stratum from which other minerals are extracted for

purposes of bona fide sale or reasonable commercial use. The

corresponding Federal regulation, at 30 CFR 702.14(a)(2), contains the

same requirement, except that it allows the exemption to be approved if

the coal to be produced is in the geological stratum lying above or

below the deepest stratum from which other minerals are extracted.

Because Pennsylvania limits the exemption allowance to where the coal

is produced above the deepest stratum from which other minerals are

extracted, it is more restrictive, and therefore more stringent, than

its Federal counterpart. In accordance with section 505(b) of SMCRA (30

U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.5(h)(2)

is not inconsistent with SMCRA.

3. 86.5(I)(3)--Exemption Determinations

Pennsylvania is proposing to permit a person who is adversely

affected by the determination of exemption to file an appeal as

provided by Chapter 21 of the regulations. The proposed regulation is

substantively identical to the Federal regulations at 30 CFR

702.11(f)(1). However, the Federal regulations at 30 CFR 702.11(f)(2)

specify that such appeals shall not suspend the effect of that

determination. In its letter dated March 28, 1997, Pennsylvania stated

that appeals to the Environmental Hearing Board (EHB) under the

provisions of Chapter 21 do not stay the effect of the Department of

Environmental Protection`s (Department) actions. If an appellant wishes

to stay the effect of such an action, the appellant must petition the

EHB which, in turn, must issue a supersedeas. The Director finds the

proposed Pennsylvania regulation no less effective than the Federal

regulations, since Pennsylvania law provides, generally, that an appeal

does not, by itself, suspend the effect of the decision appealed from.

4. 86.5(m)--Notification

Pennsylvania is proposing to require that if the Department

believes that a specific mining area was not exempt at the end of the

previous reporting period, or is not exempt or cannot satisfy the

exemption criteria at the end of the

[[Page 60171]]

current reporting period, it will notify the operator that the

exemption may be revoked and explain the reasons. The exemption will be

revoked unless the operator demonstrates within 30 days that the area

in question should continue to be exempt. The operator and interested

parties will be notified immediately of the revocation. The Federal

regulations at 30 CFR 702.17(b) and (c)(1) have the same requirements.

However, the Federal regulations also specify that if a decision is

made not to revoke an exemption, the regulatory authority shall

immediately notify the operator and intervenors. The Director finds

that the proposed Pennsylvania regulation is less effective than the

Federal regulations because it lacks this notification requirement. He

is, therefore, requiring that Pennsylvania amend its program to include

the notification requirement to operators and intervenors of a

Department's decision not to revoke an exemption.

5. 86.55(i),(j)--Permit Renewals

Pennsylvania is proposing at subsection (i) to allow a permittee to

provide a written notice to the Department in lieu of a complete

application if, after the permit expiration date, the remaining surface

mining activities will consist solely of reclamation. The Department

may renew the permit conditioned upon only reclamation activities

occurring. A new permit is required if the permittee resumes coal

extraction, preparation, or refuse disposal. At subsection (j),

Pennsylvania is proposing to require that a permittee submit a renewal

application if he has provided written notice in accordance with the

terms of subsection (i) and determines prior to the permit expiration

date that coal extraction, preparation, or refuse disposal will occur

or treatment facilities will be required after the permit expiration

date. The Federal regulations at 30 CFR 773.11(a) allow a permittee to

forego permit renewal where only reclamation activities remain to be

performed, but require that permit obligations continue until

reclamation is complete. Subsection (i), as proposed, contains a

similar provision, in that it provides that the permit will be renewed

even where only reclamation obligations remain, but requires only a

notice of renewal in such instances, rather than a complete renewal

application, with public notice. Therefore, subsection (i) is no less

effective than 30 CFR 773.11(a). However, the Federal regulations at 30

CFR 774.15(b)(1) require that an application for permit renewal be

submitted at least 120 days before expiration of the existing permit

term. Pennsylvania's proposed revision at subsection (j) does not

contain this provision. Therefore, the Director finds that it is less

effective than the Federal regulations, and he is requiring that

Pennsylvania amend its regulation to include the 120 day submittal

requirement.

6. 86.134(8)--Coal Exploration

Pennsylvania proposes to require that each coal exploration hole,

borehole, well, or other underground opening created or encountered by

exploration must meet the requirements of its program relating to

preventing discharges from underground mines, and closing of

underground mine openings. The Federal counterpart regulation, at 30

CFR 815.15(g), contains these same requirements, except that it applies

only to holes, etc., which are created during coal exploration, and not

to holes encountered during coal exploration. As such, Pennsylvania's

proposal is more inclusive, and therefore more stringent, than its

Federal counterpart. In accordance with section 505(b) of SMCRA (30

U.S.C. 1255(b)) and 30 CFR 730.11(b), therefore, subsection 86.134(8)

is not inconsistent with SMCRA.

7. 86.182(f)(2)--Bond Forfeiture

Pennsylvania is proposing to require that if the bond amount

forfeited by the permittee is more than the amount necessary to

complete the reclamation, the excess funds shall be used by the

Department for certain prescribed purposes specified in subsection

18(a) of the Pennsylvania Surface Mining Act. The Federal regulations

at 30 CFR 800.50(d)(2) require the regulatory authority to return any

unused funds to the party from whom they were collected. However,

Pennsylvania considers the excess funds to be a penal bond and reserves

the right to apply the funds to approved purposes. The Director finds

that the proposed Pennsylvania revision is, in effect, more stringent

than the Federal regulations. Therefore, in accordance with section

505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), subsection

86.182(f)(2) is not inconsistent with SMCRA.

8. 86.193(h)--Civil Penalties

Pennsylvania is proposing to delete the provision that the

Department may, when appropriate, assess a penalty against corporate

officers, directors, or agents as an alternative to, or in combination

with, other penalty actions. This provision currently appears in

Pennsylvania's regulations at 86.195(a). The Director finds that the

proposed deletion will not render the Pennsylvania program less

effective than the Federal regulations at 30 CFR 846.12(a). However,

the Director notes that Pennsylvania must still amend subsections

86.195(a) and (b), or otherwise amend its program, as directed at 30

CFR 938.16(eee).

9. 87.45(a)(4), 88.25(a)(4), 88.491(c)(1)(iv), 89.34(a)(1)(i),

90.131(1)--Surface Coal Mines, Anthracite (General Provisions),

Anthracite (Coal Preparation Facilities), Underground Coal Mines, Coal

Refuse Disposal: Groundwater

Pennsylvania is proposing to require that a permit applicant supply

certain baseline information pertaining to groundwater, including water

quality descriptions of total dissolved solids or specific conductance

corrected to 25 degrees centigrade, pH, total iron, total manganese,

alkalinity, acidity, and sulfates. The counterpart Federal regulations,

at 30 CFR 780.21/784.14(b)(1), also require water quality descriptions,

but do not specifically require descriptions of alkalinity, acidity or

sulfates. As such, the Pennsylvania proposals are more stringent than

their Federal counterparts. Therefore, in accordance with section

505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), these

Pennsylvania proposed amendments are not inconsistent with SMCRA.

10. 87.46(b)(c)(ix)--Surface Water Information: Surface Coal Mines/

88.26(b)(2)(ix)--Surface Water Information: Anthracite Surface Mines/

88.491(d)(2)(ii)(I), (J)--Surface Water Information: Anthracite

Underground Mines/90.14(b)(3)(ix)--Surface Water Information--Coal

Refuse Disposal

Pennsylvania is proposing to require that a permit application

include surface water information that specifies total aluminum in

milligrams per liter. The Federal regulations at 30 CFR 780.21/

784.14(b)(2) do not include this provision but rather require minimum

water quality descriptions which Pennsylvania's program already

requires. Also, Pennsylvania is requiring other surface water

information, as appropriate. The Federal regulations at 30 CFR 780.21/

784.14(b)(2) also do not include this provision. As such, the

Pennsylvania proposals are more stringent than their Federal

counterparts. Therefore, in accordance with section 505(b) of SMCRA (30

U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed

[[Page 60172]]

amendments are not inconsistent with SMCRA.

11. 87.54(b)/87.65(b)--Maps, Cross Sections and Related Information:

Surface Mines/88.31/88.44(b)--Maps and Plans: Anthracite Surface Mines/

88.492(j)(3)--Maps and Plans: Anthracite Underground Mines/90.21(b),

90.46(3)--Maps and Plans: Coal Refuse Disposal

Pennsylvania is proposing to require that qualified professional

geologists also be registered in order to prepare and certify maps,

plans, and cross sections. The corresponding Federal regulations, at 30

CFR 779.25(b) (for 87.54(b) and 88.31(b)), 780.14(c) (for 87.65(b) and

88.44(b)), and 784.23(c) (for 88.492(j)(3)), require only that the

geologist be a professional. However, Pennsylvania may require,

additionally, that the geologist be a registered professional. As such,

the Pennsylvania proposals are more stringent than their Federal

counterparts. Therefore, in accordance with section 505(b) of SMCRA (30

U.S.C. 1255(b)) and 30 CFR 730.11(b), these Pennsylvania proposed

amendments are not inconsistent with SMCRA.

12. 87.69(b)(5)--Hydrologic Balance: Surface Mines/88.49(b)(3)--

Hydrologic Balance: Anthracite Surface Mines/88.492--Reclamation and

Operation Plan: Anthracite

Pennsylvania is proposing to require that the determination of

probable hydrologic consequences (PHC) address the parameters measured

in accordance with subsections 87.45, 87.46, 88.25, 88.26, and 88.491.

The Federal regulations at 30 CFR 780.21(f)(2) require the PHC to be

based upon baseline hydrologic information contained in the permit

application. This baseline information is collected for the same ground

and surface water parameters which are required to be measured pursuant

to subsection 87.45, 87.46, 88.25 and 88.26. Therefore, the Director

finds that the proposed Pennsylvania regulations are no less effective

than the Federal regulations at 30 CFR 780.21(f).

13. 87.73--Dams, Ponds, Embankments, and Impoundments: Surface Mines/

90.111(7), 90.113(i), 90.120--Impoundments: Coal Refuse Disposal

At subsection 87.73(c)(1), Pennsylvania is proposing to revise its

requirements for detailed design plans for dams, ponds, embankments and

impoundments. Engineers, when necessary, will obtain assistance from

experts in related fields when preparing design plans for impoundments

meeting or exceeding MSHA size classification or other specified

criteria. For those impoundments not meeting the size classification or

other criteria, the plan shall be prepared by a qualified engineer or

land surveyor. The Federal regulations at 30 CFR 780.25(a) (2) and (3)

have the same requirements. Therefore, the Director finds that the

proposed Pennsylvania regulation is no less effective than the Federal

regulations. The proposed revision also satisfies the required

amendment at 30 CFR 938.16(s) which required Pennsylvania to clarify

that all impoundments with a storage volume of 20 acre-feet or more

must be designed by or under the direction of, and certified by, a

qualified registered professional engineer with assistance from experts

in related fields.

At subsections 87.73(c)(4), 90.111(7) and 90.113(i), and at section

90.120, Pennsylvania is proposing to prohibit the permanent retention

of an impounding structure constructed of coal refuse or used to

impound coal refuse unless it develops into a fill meeting the coal

refuse disposal requirements of section 90.122. The Federal regulations

at 30 CFR 816.84(b)(1) also prohibit permanent impoundments on coal

refuse or coal refuse impounding structures, but contain no exceptions

for the development of a fill. However, subsection 90.122(j) of

Pennsylvania's regulations does prohibit the retention of permanent

impoundments on a completed fill. By cross-referencing subsection

90.122(j), these provisions contain the necessary prohibition of

permanent impoundments. Therefore, the Director finds that the proposed

Pennsylvania regulations are no less effective than the Federal

regulations at 30 CFR 816.84(b)(1).

14. 87.102(a)--Effluent Standards: Surface Mines/88.92(a)--Effluent

Standards: Anthracite Surface Mines/88.187(a)--Effluent Standards:

Anthracite Bank Removal/88.292(a)--Effluent Standards: Anthracite

Refuse Disposal/89.52(c)--Effluent Standards: Underground Mining and

Coal Preparation Facilities/90.102(a)--Effluent Standards: Coal Refuse

Disposal

Pennsylvania is proposing to revise the instantaneous maximum level

for manganese to 5.0 mg/l for its Group ``B'' effluent limitations, and

to add instantaneous maximum discharge levels for manganese (5.0 mg/l)

and suspended solids (90 mg/l) to its Group ``A'' effluent limitations.

(Group ``A'' effluent limitations apply to pit water discharges in all

types of weather, and to all other discharges in dry weather or during

very low precipitation events. Group ``B'' effluent limitations apply

to discharges, other than pit water, during precipitation events of up

to 10 years and 24 hours.) The Director notes that the Clean Water Act

effluent limitations applicable to coal mining operations, at 40 CFR

Part 434, do not contain instantaneous maximum limits for manganese or

suspended solids. Therefore, Pennsylvania's proposals are in addition

to the requirements of the Clean Water ACt regulations. Also, the

Director notes that the Environmental Protection Agency, in its letter

of concurrence with this program amendment, stated that the addition of

these instantaneous maximum limits will ``provide inspectors an

enforceable compliance measure without the necessity of obtaining time

consuming composite samples.'' (Administrative Record No. 838.08).

There are no Federal counterparts in SMCRA or the Federal regulations

promulgated thereunder to these proposed revisions. However, 30 CFR

816/817.42 require that discharges of water from surface mining

operations be made in compliance with, among other things, the effluent

limitations contained in 40 CFR Part 434. Because the Environmental

Protection Agency has concurred in the approval of this amendment, the

Director finds that the proposed Pennsylvania revisions are consistent

with the Federal regulations at 30 CFR 816/817.42.

15. 87.108(c)--Sedimentation Ponds: Surface Coal Mines/89.24(c)--

Sedimentation Ponds: Underground Mines and Coal Preparation Facilities/

90.108(c)--Sedimentation Ponds: Coal Refuse Disposal

Pennsylvania is proposing to require that sedimentation ponds be

maintained until the disturbed area has been stabilized and revegetated

and removal is approved by the Department. The ponds may not be removed

sooner than 2 years after the last augmented seeding, unless the

Department finds that the disturbed area has been sufficiently

revegetated and stabilized. Pennsylvania is also proposing to delete

the references to ``other treatment facilities.'' This deletion is

presumably proposed because the Pennsylvania regulations, at sections

87.108, 89.24 and 90.108, require all drainage to be passed through

sedimentation ponds, rather than through ``other treatment

facilities.'' Therefore, the deletion is approved to the extent that

``other treatment facilities'' are not permitted to be used to treat

surface drainage. However, the Federal regulations at 30

[[Page 60173]]

CFR 816/817.46(b)(5) prohibit the removal of siltation structures

sooner than 2 years after the last augmented seeding.

Because Pennsylvania's proposal includes an exception to this

requirement, the Director finds that the proposed Pennsylvania revision

is less effective than the Federal regulations. He is also requiring

that Pennsylvania amend its regulation to require, without exception,

that sedimentation ponds, where used, and other treatment facilities,

if used, cannot be removed sooner than 2 years after the last augmented

seeding.

16. 87.112--Hydrologic Balance: Surface Mines/88.102--Hydrologic

Balance: Anthracite Surface Mines/88.197--Hydrologic Balance:

Anthracite Bank Removal/88.302--Hydrologic Balance: Anthracite Refuse

Disposal/89.101 and 112--Impoundments: Underground Mines/90.112--

Hydrologic Balance: Coal Refuse Disposal

At subsections 87.112(b), 88.102(b), 88.197(b), 88.302(b), 89.112,

and 90.112(b), Pennsylvania is proposing to require a minimum static

safety factor of 1.3 for dams, ponds, embankments, and impoundments. At

subsections 87.112(b)(1) and 89.101(a), Pennsylvania is proposing to

require that impoundments that meet or exceed MSHA size classification

of 30 CFR 77.216(a) be designed and certified by a qualified registered

professional engineer with assistance, as necessary, from experts in

related fields. Impoundments not meeting or exceeding MSHA size

classification are to be designed and certified by a qualified

registered professional engineer or land surveyor. Each impoundment

shall be certified that it has been constructed and is being maintained

as designed in accordance with the approved plan and performance

standards. At subsection 90.112(b)(1), Pennsylvania is proposing to

require that each impoundment be certified that it has been constructed

or is being maintained as designed in accordance with applicable

performance standards. The Federal regulations at 30 CFR 780.25/

784.16(a)(2), and (3) specify the design, certification, and stability

requirements for impoundments. The Federal regulations at 816/

817.49(a)(4)(ii) contain the 1.3 static safety factor requirement for

impoundments not meeting the size or other criteria of 30 CFR

77.216(a). The Director finds that the proposed Pennsylvania revisions

are substantively identical to these requirements in the Federal

regulations. The proposed revision also satisfies two required

amendments. At 30 CFR 938.16(t), Pennsylvania was required to ensure

that all impoundments which meet or exceed the MSHA size classification

are designed and certified by or under the direction of a qualified

registered professional engineer. At 30 CFR 938.16(u), Pennsylvania was

required to ensure that all impoundments be certified that they have

been constructed and are being maintained as designed in accordance

with the approved plan and performance standards.

At subsections 87.112(d) and 89.101(b), Pennsylvania is proposing

to require that impoundments that meet or exceed the MSHA size

classification or other criteria of 30 CFR 77.216(a) be inspected and

certified by a qualified registered professional engineer. Impoundments

not meeting or exceeding the MSHA size classification or criteria are

to be inspected during construction and certified after construction

and annually thereafter by a qualified registered professional engineer

or land surveyor until removal of the structure or release of the

performance bond. The engineer or surveyor must be experienced in the

construction of impoundments. The Federal regulations at 30 CFR 816/

817.49(a)(11) contain these same inspection requirements for

impoundments. Therefore, the Director finds that the proposed

Pennsylvania revisions are substantively identical to these

requirements in the Federal regulations.

At subsections 87.112(f), 89.101(d), and 90.112(f), Pennsylvania is

proposing to clarify that it will consider MSHA's review for

impoundments. It will, however, review impoundments as required under

subsection (a). The Director finds that the proposed Pennsylvania

revision is substantively identical to the Federal regulations at 30

CFR 780.25/784.16(c)(2), pertaining to reclamation plans for

impoundments. The proposed revision also satisfies the required

amendment at 30 CFR 938.16(v) which allows Pennsylvania to consider

MSHA's action on plans for impoundments but requires it to make its own

findings with respect thereto.

17. 87.116--Hydrologic Balance: Groundwater Monitoring--Surface Mines/

87.117--Hydrologic Balance: Surface Water Monitoring--Surface Mines/

88.105--Hydrologic Balance: Groundwater Monitoring--Anthracite Mines/

88.106--Hydrologic Balance: Surface Water Monitoring--Anthracite

Surface Mines/88.201--Hydrologic Balance: Groundwater Monitoring--

Anthracite Bank Removal/88.202--Hydrologic Balance: Surface Water

Monitoring--Anthracite Bank Removal/88.305--Hydrologic Balance:

Groundwater Monitoring--Anthracite Refuse Disposal/88.306--Hydrologic

Balance: Surface Water Monitoring--Anthracite Refuse Disposal/90.115--

Hydrologic Balance: Groundwater Information--Coal Refuse Disposal

Performance Standards/90.116--Hydrologic Balance: Surface Water

Monitoring--Coal Refuse Disposal Performance Standards

At subsections 87.116(b), 88.105(b), 88.201(b), 88.305(b),

90.115(b), 87.117(a), 88.106(a), 88.202(a), 88.306(a), and 90.116(a),

Pennsylvania is proposing to identify the minimum monitoring

requirements for groundwater and surface water. These monitoring

requirements include: total dissolved solids or specific conductance

corrected to 25 degrees C, pH, acidity, alkalinity, total iron, total

manganese, sulfates, and water levels. The information is to be

reported to the Department every 3 months for each location. At

87.116(d), 88.105(d), 88.201(d), 88.305(d), 90.115(d), 87.117(b),

88.106(b), 88.202(b), 88.306(b), and 90.116(b), the Department is

authorized to require monitoring and reporting more frequently than

every 3 months and to monitor additional parameters beyond the minimum

specified in this section. The Director finds that Pennsylvania's

revisions contain the same requirements, and are therefore

substantively identical to, the Federal regulations at 30 CFR 780.21

(i) and (j), pertaining to ground and surface water monitoring, except

that the Federal regulations do not require the monitoring of acidity,

alkalinity, or sulfates. As such, the Pennsylvania proposals are more

stringent than their Federal counterparts. Therefore, in accordance

with section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b),

these Pennsylvania proposed amendments are not inconsistent with SMCRA.

18. 87.127--Use of Explosives: Blasting

At subsection (h), Pennsylvania is proposing to require that

maximum

[[Page 60174]]

peak particle velocity may not exceed the values approved in the blast

plan. It also includes frequency of vibration as a factor that the

Department may consider in reducing the maximum peak particle velocity

allowed. The Director finds that the proposed revision is no less

effective than the Federal regulations at 30 CFR 816.67(d)(1) and

(d)(5) pertaining to ground vibrations. The proposed revision also

satisfies the required amendment at 30 CFR 938.16(y) which required

Pennsylvania to ensure that all structures in the vicinity of the

blasting area be protected from damage by establishing maximum

allowable limits on the ground vibration.

At subsection (i)(2), Pennsylvania is proposing to exempt from

maximum peak particle velocity limitations those structures located on

the permit area when the owner and lessee, if leased to another party,

of the structure have each signed a waiver releasing the vibration

limit. The Federal regulations at 30 CFR 816.67(e)(1) and (2) exempt

those structures outside the permit area owned by the permittee and not

leased, or owned and leased with a written wavier by the leasee. The

Federal peak particle velocity limitations do not apply, however, to

structures inside the permit area. In its letter dated March 28, 1997,

Pennsylvania states that while OSM's general provisions pertaining to

the prevention of the adverse effects of explosives apply only to

damage outside the permit area, Pennsylvania allows a waiver of

vibration limits inside the permit area only, where the Federal peak

particle velocity limitations do not apply anyway. Pennsylvania does

not permit waivers outside the permit area and, as such, provides

additional protection against damage. Therefore, the Director finds

that the proposed revision is not inconsistent with SMCRA.

At subsection (k), Pennsylvania is proposing to require that a

seismograph record become part of the blast record within 30 days after

it obtained. It shall be analyzed by a qualified independent party. The

Director notes that the proposed revisions adds requirements not

contained in the Federal regulations at 30 CFR 816.67(d)(2) which

require seismograph records for each blast. However, these additional

provisions are consistent with the Federal requirement to keep a

seismographic record and, therefore, can be approved.

19. 87.129(4)--Use of Explosives: Blasting Records

Pennsylvania is proposing to require that the blast record include

the direction and distance, in feet, to the nearest public building and

other structures. The Federal regulations at 30 CFR 816.68(d) require

only that the blast record include the direction and distance, in feet,

from the nearest blasting hole to the nearest dwelling, public

building, school, church, community or institutional building outside

the permit area. However, as noted in Finding 18, above, Pennsylvania

applies its air blast and ground vibration standards to buildings

within the permit area as well as outside the permit area. As such,

Pennsylvania's program is more stringent than the Federal regulations.

In order to be consistent with its own requirements, Pennsylvania has

amended its blast record provisions to include the direction and

distance to the nearest building, regardless of whether the building is

located within or outside of the permit area. In accordance with

section 505(b) of SMCRA (30 U.S.C. 1255(b)) and 30 CFR 730.11(b), this

proposed amendment is not inconsistent with SMCRA.

20. 87.136--Disposal of Noncoal Wastes: Surface Mines/88.321--Disposal

of Noncoal Wastes: Anthracite Refuse Disposal/89.63--Disposal of

Noncoal Wastes: Underground Mining and Coal Preparation Facilities/

90.133--Disposal of Noncoal Wastes: Coal Refuse Disposal

Pennsylvania is proposing to require that noncoal wastes be

disposed of or temporarily stored in accordance with the Solid Waste

Management Act and related regulations. This requirement is no less

effective than the Federal regulations at 30 CFR 816/817.89(b), which

provides for final disposal of noncoal wastes in a State approved solid

waste disposal area. However, sections 88.321 and 90.133 state that

waste materials with low ignition points may not be deposited on or

near a coal refuse disposal pile. The Federal regulation at 30 CFR

816.89(c) does not permit any noncoal waste to be deposited in a refuse

pile or impounding structure. Pennsylvania's prohibition applies only

to its listed materials and other waste materials with low ignition

points. Therefore, the Director finds that the proposed Pennsylvania

revisions to sections 88.321 and 90.133 are less effective than the

Federal regulation. He is also requiring that Pennsylvania amend its

program to prohibit any noncoal waste from being deposited in a refuse

pile or impounding structure.

21. 88.105(c)--Groundwater Monitoring: Anthracite Mines/88.201(c)--

Groundwater Monitoring: Anthracite Bank Removal/88.305(c)--Groundwater

Monitoring: Anthracite Refuse Disposal

Pennsylvania is proposing to permit the Department to require the

operator to conduct additional hydrologic tests to demonstrate

compliance with the groundwater monitoring sections of the regulations.

The Federal regulations at 30 CFR 780.21(b)(3) require this additional

testing where the PHC determination indicates that adverse impacts may

occur to the hydrologic balance, or that acid-forming or toxic-forming

material is present that may result in the contamination of surface or

ground water supplies. Therefore, subsections 88.105(c), 88.201(c) and

88.305(c) are less effective in that they merely allow, but do not

require, additional testing as appropriate, and the Director is

requiring Pennsylvania to amend its program to require such additional

hydrologic testing whenever the PHC determination indicates that

adverse impacts may occur to the hydrologic balance, or that acid-

forming or toxic-forming material is present that may result in the

contamination of surface or ground water supplies.

22. 88.381(c)(7)--Coal Preparation Facilities

Pennsylvania is proposing to require that an application include

monitoring plans and that surface and ground water information, as well

as monitoring plans, be presented in accordance with its regulations

pertaining to ground and surface water information. There is no direct

Federal counterpart to this proposed amendment. However, the Director

finds that the proposed Pennsylvania revision is consistent with the

Federal regulation at 30 CFR 785.21, which requires that an operator

obtain a permit to operate a coal preparation plant outside the permit

area for a specific mine, and that the permit demonstrate that the

applicant will comply with the performance standards at 30 CFR Part

827, which standards include the requirement to comply with the Federal

regulations at 30 CFR 816.41, pertaining to protection of the

hydrologic balance.

23. 89.142(a)(6)(vii)--Maps: Underground Mines and Coal Preparation

Facilities

Pennsylvania is proposing to require that maps identify major

electric transmission lines by name or numerical reference. While there

is no direct Federal counterpart to this requirement, the Director

finds that the

[[Page 60175]]

proposed Pennsylvania revision is consistent with the Federal

regulations at 30 CFR 783.24(e), pertaining to permit application maps,

which requires that such maps show the location of major electric

transmission lines and pipelines.

24. 89.143(b)(3)(i)(B)--Performance Standards: Underground Mines and

Coal Preparation Facilities

Pennsylvania is proposing to require that a pillar lying partially

within the support area be considered part of the support area and be

consistent with the other support pillars in size and pattern. While

this provision has no direct Federal counterpart, the Director finds

that it is consistent with the Federal regulations at 30 CFR

784.20(b)(5), pertaining to subsidence control plans, which allows

operators the option of leaving pillars of coal in order to prevent or

minimize subsidence.

25. 90.39(e)--Impoundments: Coal Refuse Disposal

Pennsylvania is proposing to require that permit application plans

provide for the removal of impoundments constructed of or used to

impound coal refuse as part of site reclamation. The Director finds

that the proposed Pennsylvania revision is no less effective than the

Federal regulations at 30 CFR 816/817.84(b)(1) which prohibit the

permanent retention of such structures.

26. 90.122--Coal Refuse Disposal

Pennsylvania is proposing, at subsection (j), to delete all

exceptions to the prohibition against retaining permanent impoundments

or depressions in a completed coal refuse disposal fill. The Director

finds that this deletion renders subsection 90.122(j) no less effective

than the Federal regulations at 30 CFR 816.84(b)(1), which prohibits

the retention of permanent impounding structures constructed of coal

mine waste or intended to impound coal mine waste.

27. 90.130--Coal Refuse Dams: Coal Refuse Disposal

Pennsylvania is proposing to delete the provision prohibiting the

permanent retention of coal refuse dams as part of the approved

postmining landuse. However, because the structures must comply with

subsection 90.122(j), which contains the prohibition, the Director

finds that the proposed Pennsylvania revision is no less effective than

the Federal regulation at 30 CFR 816.84(b)(1).

C. Revisions to Pennsylvania's Regulations With No Corresponding

Federal Regulations

1. 77.3(b)--Relationship to Coal Mining

Pennsylvania is proposing to add the provision that the incidental

extraction of coal under subsection (a) will conform to section 86.5

pertaining to extraction of coal incidental to noncoal surface mining.

There is no Federal counterpart to this provision. However, the

Director finds that the proposed regulation is not inconsistent with

the requirements of SMCRA and the Federal regulations, which do contain

counterparts to the requirements of section 86.5.

2. 86.37(b)--Permits

Pennsylvania is proposing to prohibit an incremental phase approval

of a permit if the Department has already issued an incremental phases

approval for the area to another permittee, except for an area used for

access or haul roads. There is no Federal counterpart to this

provision. However, incremental phase approvals of permits are already

included in Pennsylvania's approved program, in this same subsection.

Therefore, the Director finds that the proposed revision does not

render the Pennsylvania program inconsistent with the requirements of

SMCRA or the Federal regulations.

3. 86.55(c)--Permit Renewals

Pennsylvania is proposing to require that if a permittee provides a

written notice under section (i) pertaining to permits conditioned upon

only reclamation activity being performed, the notice shall be filed

with the Department at least 180 days before the expiration date of the

permit. There is no direct Federal counterpart to this provision.

However, the Director finds that the proposed revision is consistent

with the Federal regulations at 30 CFR 773.11(a), which allows

permittees to forego obtaining permit renewals where only reclamation

activities remain to be performed.

4. 87.92(g)--Signs and Markers: Surface Mines/88.82(c)--Signs and

Markers: Anthracite Mines/88.182(b)--Signs and Markers: Anthracite Bank

Removal/88.282(c)--Signs and Markers: Anthracite Refuse Removal/

89.51(h)--Signs and Markers: Underground Mining and Coal Preparation

Plans/90.92(g)--Signs and Markers: Coal Refuse Disposal

Pennsylvania is proposing to require that ground and surface water

monitoring locations and sampling points used to obtain background

information be clearly marked and identified. The requirement may be

waived if the monitoring locations or sampling points are obvious or if

marking would be objectionable for aesthetic reasons. The Federal

regulations at 30 CFR 816/817.11 do not contain this requirement.

However, the Director finds that the proposed revisions, which are in

addition to the requirements of the Federal regulations, are not

inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30

U.S.C. 1255(b)), and 30 CFR 730.11(b).

5. 87.93(d)--Casing and Sealing of Drilled Holes: Surface Mines/

88.83(d)--Sealing of Drilled Holes: Anthracite Mines/88.283(d)--Sealing

of Drilled Holes--Anthracite Refuse Removal/89.141(d)(4)(ii)--

Subsidence Control: Underground Mines

Pennsylvania is proposing to require that gas and oil wells be

sealed in accordance with the Oil and Gas Act (58 P.S.sections 601.101-

601.605). The Federal regulations at 30 CFR 816/817.13 do not contain

this requirement. However, the Director finds that the proposed

revisions are in addition to those requirements, and are therefore not

inconsistent with SMCRA, in accordance with SMCRA section 505(b) (30

U.S.C. 1255(b)), and 30 CFR 730.11(b).

6. 89.144(a)--Public Notice: Underground Mines and Coal Preparation

Facilities

Pennsylvania is proposing to require that coal operators provide

the Department with a copy of the required notice of intention to mine

and return receipt or, if applicable, evidence that the notice was not

accepted or deliverable. The Federal regulations contain no direct

counterpart requirement. However, the Director finds that the proposed

revision is consistent with the Federal regulations at 30 CFR 817.122,

which requires notification to all owners of surface property overlying

the proposed underground mining operation of the intent to mine.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

[[Page 60176]]

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Pennsylvania program. The U.S.

Department of Labor, Mine Safety and Health Administration (District 1)

and the U.S. Department of the Interior, Fish and Wildlife Service

concurred without comment. The U.S. Department of Labor, Mine Safety

and Health Administration (District 2) commented that while

Pennsylvania's proposed regulations do not permit impounding structures

constructed of coal refuse or used to impound coal refuse to be

retained permanently, 30 CFR Parts 75 and 77 do not have the same

prohibition. The Director notes that Pennsylvania's revisions comply

with and are no less effective than the Federal regulations at 30 CFR

816/817.84(b)(1).

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

On January 25, 1996, OSM solicited EPA's concurrence with the

proposed amendment. On March 14, 1996, EPA gave its written concurrence

(Administrative Record No. PA-838.08).

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP. None were received.

V. Director's Decision

Based on the above findings, the Director approves with certain

exceptions and additional requirements, the proposed amendment as

submitted by Pennsylvania on January 23, 1996. He is also requiring

that Pennsylvania amend its program to make the following changes. At

86.5(m), Pennsylvania must provide for notification of the operator and

any intervenors of a decision not to revoke an exemption. At 86.55(j),

Pennsylvania must require that any applications for permit renewal be

submitted at least 120 days before the permit expiration date. At

87.108(c), 89.24(c), and 90.108(c), Pennsylvania must require, without

exception, that sedimentation ponds cannot be removed sooner than two

years after the last augmented seeding. If sedimentation ponds are not

always deemed to be the best technology currently available, any

``other treatment facilities'' used must also remain in place for at

least two years after the last augmented seeding. At 88.105(c),

88.201(c), and 88.305(c), Pennsylvania must require additional

hydrologic testing whenever the PHC determination indicates that

adverse impacts may occur to the hydrologic balance, or that acid-

forming or toxic-forming material is present that may result in the

contamination of surface or ground water supplies. At 88.321 and

90.133, Pennsylvania must require that no noncoal waste be deposited in

a coal refuse pile or impounding structure. Pennsylvania must also

provide counterparts to the Federal regulations at 30 CFR

702.15(d),(e),(f), and 702.17(c)(2), and (c)(3). The Federal

regulations require that authorized representatives have the right to

enter operations conducting incidental coal extraction and that

administrative reviews of the State's determinations be provided.

The Director is removing the following required amendments at 30

CFR 938.16 because they have been satisfied by revisions contained in

this submission.

Required Amendment Removed/State Regulation That Satisfies

Requirement

30 CFR 938.16(g).......................... 86/87.1.

30 CFR 938.16(l).......................... 86.156(b).

30 CFR 938.16(q).......................... 86.182(e).

30 CFR 938.16(s).......................... 87.73(c)(1).

30 CFR 938.16(t).......................... 87.112(b)(1), 89.101(a).

30 CFR 938.16(u).......................... 87.112(b)(1), 90.112(b)(1).

30 CFR 938.16(v).......................... 87.112(f), 89.101(d),

90.112(f).

30 CFR 938.16(x).......................... 87.127(e)(2).

30 CFR 938.16(y).......................... 87.127(h).

30 CFR 938.16(z).......................... 87.127(j).

30 CFR 938.16(aa)......................... 87.127(n).

30 CFR 938.16(bb)......................... 87.131(n).

30 CFR 938.16(cc)......................... 87.135(a).

30 CFR 938.16(dd)......................... 87.138(c), 89.82(d),

90.150(c).

30 CFR 938.16(ee)......................... 88.24(b)(4)(i).

30 CFR 938.16(ff)......................... 88.61(b)(1).

30 CFR 938.16(gg)......................... 88.491(j).

30 CFR 938.16(ii)......................... 89.34(a)(2)(ii).

30 CFR 938.16(jj)......................... 86.172(b).

30 CFR 938.16(ddd)........................ 86.133(g).

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

938.16 that, within 60 days of the publication of this final rule,

Pennsylvania must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Pennsylvania's established administrative or

legislative procedures.

The Federal regulations at 30 CFR Part 938, codifying decisions

concerning the Pennsylvania program, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director's Decisions

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Pennsylvania program, the Director will recognize only

the statutes, regulations other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Pennsylvania of only

such provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732,15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments

[[Page 60177]]

submitted by the States must be based solely on a determination of

whether the submittal is consistent with SMCRA and its implementing

Federal regulations and whether the other requirements of 30 CFR Parts

730, 731, and 732 have been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 15, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 938--PENNSYLVANIA

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

follows:

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

2. Section 938.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 938.15 Approval of Pennsylvania regulatory program amendments.

* * * * *

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

Original amendment submission Date of final Citation/

date publication description

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

* * * * *

January 23, 1995................ November 7, 1997.. Chapters 86

through 90.

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

3. Section 938.16 is amended by removing and reserving paragraphs

(g), (l), (q), (s), (t), (u), (v), (x), (y), (z), (aa), (bb), (cc),

(dd), (ee), (ff), (gg), (ii), (jj), and (ddd); and by adding paragraphs

(ppp) through (uuu) to read as follows:

Sec. 938.16 Required regulatory program amendments.

* * * * *

(ppp) By January 6, 1998, Pennsylvania shall submit a proposed

amendment to section 86.5(m), or otherwise amend its program, to

provide for notification of the operator and any intervenors of a

decision not to revoke an exemption.

(qqq) By January 6, 1998, Pennsylvania shall submit a proposed

amendment to subsection 86.55(j), or otherwise amend its program, to

require that any applications for permit renewal be submitted at least

120 days before the permit expiration date.

(rrr) By January 6, 1998, Pennsylvania shall submit a proposed

amendment to subsections 87.108(c), 89.24(c), and 90.108(c), or

otherwise amend its program, to require, without exception, that

sedimentation ponds cannot be removed sooner than two years after the

last augmented seeding.

(sss) By January 6, 1998, Pennsylvania shall submit proposed

amendments to subsections 88.105(c), 88.201(c) and 88.305(c), or

otherwise amend its program, to require additional hydrologic testing

whenever the PHC determination indicates that adverse impacts may occur

to the hydrologic balance, or that acid-forming or toxic-forming

material is present that may result in the contamination of surface or

ground water supplies.

(ttt) By January 6, 1998, Pennsylvania shall submit a proposed

amendment to sections 88.321 and 90.133, or otherwise amend its

program, to require that no noncoal waste be deposited in a coal refuse

pile or impounding structure.

(uuu) By January 6, 1998, Pennsylvania shall submit a proposed

amendment to provide counterparts to the Federal regulations at 30 CFR

702.15 (d), (e), (f) and 702.17 (c)(2) and (c)(3) to require that

authorized representatives have the right to enter operations

conducting incidental coal extraction and that administrative reviews

of the State's determinations be conducted.

[FR Doc. 97-29475 Filed 11-6-97; 8:45 am]

BILLING CODE 4310-05-M