Pennsylvania Regulatory Program

Federal RegisterApr 22, 1998

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-112-FOR]

Pennsylvania Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendments.

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

amendment to the Pennsylvania permanent regulatory program (hereinafter

referred to as the Pennsylvania program) under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The amendment revises the

Pennsylvania program to incorporate changes made by Pennsylvania House

Bill 1075 and subsequent Pennsylvania law Act 1994-114. The amendment

is intended to provide special authorization for coal refuse disposal

in areas previously affected by mining which contain pollutional

discharges.

EFFECTIVE DATE: April 22, 1998.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Office of

Surface Mining Reclamation and Enforcement, Harrisburg Field Office,

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

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

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program.

II. Submission of the Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determinations.

I. Background on the Pennsylvania Program

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

approved the Pennsylvania program. Background information on the

Pennsylvania program including the Secretary's findings, the

disposition of comments, and a detailed explanation of the conditions

of approval of the Pennsylvania program can be found in the July 30,

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

conditions of approval and program amendments are identified at 30 CFR

938.11, 938.12, 938.15 and 938.16.

II. Submission of the Amendment

By letter dated September 14, 1995 (Administrative Record Number PA

837.01), Pennsylvania submitted an amendment to the Pennsylvania

program. The amending language is contained in Pennsylvania House Bill

1075 and was enacted into Pennsylvania law as Act 1994-124. The

amendments change Pennsylvania's Coal Refuse Disposal Act (of September

24, 1968 (P.L. 1040, No. 318) and amended on October 10, 1980 (P.L.

807, No. 154)) to provide for authorization for refuse disposal in

areas previously affected by mining which contain pollutional

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discharges. The proposed amendments are modeled after Pennsylvania's

approved program rules at Chapter 87, Subchapter F. (87.201) and

Chapter 88, Subchapter G. (88.501). These subchapters allow previously

affected sites with pollutional discharges to be reaffected provided

the pollution abatement plan will result in a reduction of the baseline

pollution load and represents best technology economically achievable.

The proposed amendment was published in the October 16, 1995,

Federal Register (60 FR 53565), and in the same notice, OSM opened the

public comment period and provided opportunity for a public hearing on

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

November 15, 1995. A public hearing was held on December 5, 1995.

III. Director's Findings

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

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

proposed amendment to the Pennsylvania program.

The standards by which the proposed amendments will be evaluated

are as follows. Section 503(a) of SMCRA provides that State regulatory

program laws must be in accordance with the requirements of SMCRA, and

that State regulatory program rules must be consistent with the

regulations issued pursuant to SMCRA. The terms ``in accordance with''

and ``consistent with'' are defined at 30 CFR 730.5. With regard to

SMCRA, the proposed State laws and rules must be no less stringent

than, meet the minimum requirements of, and include all applicable

provisions of SMCRA. With regard to the implementing Federal

regulations, the proposed State laws and rules must be no less

effective than the Federal regulations in meeting the requirements of

SMCRA. The Director's findings are discussed below.

1. Section 1 Findings and Declaration of Policy

This section is amended by adding policy statements that clarify

Pennsylvania's rationale for authorizing coal refuse disposal on areas

previously affected by mining which contain pollutional discharges.

While there is no direct Federal counterpart to the added policy

statements regarding coal refuse disposal, the Director finds that

Pennsylvania's rationale for encouraging coal mining activities that

will result in the improvement of previously mined areas with

preexisting pollutional discharges is reasonable and not inconsistent

with SMCRA at section 102 concerning the purposes of SMCRA.

2. Section 3 Definitions

This section is amended to provide definitions for the following

terms: ``Abatement plan,'' ``Actual improvement,'' ``Baseline pollution

load,'' ``Best technology,'' ``Coal refuse disposal activities,''

``Pollution abatement area,'' and ``Public recreational impoundment.''

Two of these definitions, ``Coal refuse disposal activities'' and

``Public recreational impoundment,'' are new to the Pennsylvania

program, while the others are similar to approved definitions at

Chapters 87.202 and 88.502 concerning remining areas with pollutional

discharges. The proposed definitions will apply to section 6.2 of

Pennsylvania's Act 1994-114.

``Abatement plan'' is defined as any individual technique or

combination of techniques, the implementation of which will result in

reduction of the baseline pollution load. The Director finds that this

language is identical in substance to the definition of ``abatement

plan'' contained in 25 Pa. Code Secs. 87.202 and 88.502, which were

approved by OSM as part of Pennsylvania's standards for treatment of

preexisting discharges on remined areas. See 51 FR 5997, February 19,

1986.

``Actual improvement'' is defined as the reduction of the baseline

pollution load resulting from the implementation of the approved

abatement plan except that any reduction of the baseline pollution load

achieved by water treatment may not be considered as actual

improvement: Provided, however, that treatment approved by the

department of the coal refuse before, during or after placement in the

coal refuse disposal area shall not be considered to be water

treatment. This definition, except for the proviso which is new, is

identical in substance to definitions at 25 Pa. Code Secs. 87.202 and

88.502, which were approved by OSM as part of Pennsylvania's standards

for treatment for preexisting discharges on remined areas. See 51 FR

5997, February 19, 1986.

``Baseline pollution load'' is defined to mean the characterization

of the pollutional material being discharged from or on the pollution

abatement area, described in terms of mass discharge for each parameter

deemed relevant by Pennsylvania, including seasonal variations and

variations in response to precipitation events. This proposal is

identical in substance to the definition of ``baseline pollution load''

found at 25 Pa. Code Secs. 87.202 and 88.502, which was approved by OSM

as part of Pennsylvania's standards for treatment of preexisting

discharges on remined areas. See 51 FR 5997, February 19, 1986.

``Best technology'' is defined to mean measures and practices which

will abate or ameliorate, to the maximum extent possible, discharges

from or on the pollution abatement area. This proposal is identical in

substance to the definition of ``best technology'' found at 25 Pa. Code

Secs. 87.202 and 88.502, which was approved by OSM as part of

Pennsylvania's standards for treatment of preexisting discharges on

remined areas. See 51 FR 5997, February 19, 1986.

``Coal refuse disposal activities'' is defined to mean the storage,

dumping or disposal of any waste coal, rock, shale, slurry, culm, gob,

boney, slate, clay, underground development wastes, coal processing

wastes, excess soil and related materials, associated with or near a

coal seam, which are either brought above ground or otherwise removed

from a coal mine in the process of mining coal or which are separated

from coal during the cleaning or preparation operations. The term shall

not include the removal or storage or overburden from surface mining

activities.

The proposed State definition includes two terms, ``coal mine

waste'' and ``underground development waste,'' which are defined in the

Federal regulations at 30 CFR 701.5. The Federal regulations define

``underground development waste'' to include waste-rock, mixtures of

coal, shale, claystone, siltstone, sandstone, limestone, or related

materials that are excavated, moved and disposed of from underground

workings in connection with underground mining activities. The proposed

State definition concerns the disposal of materials similar to those

listed in the Federal definition of underground development waste. The

Federal regulations define ``coal processing waste'' as ``earth

materials which are separated and wasted from the product coal during

cleaning, concentrating, or other processing or preparation of coal.''

The State also limits the definition of ``coal refuse disposal

activities'' by clarifying that overburden from surface mining

activities is not included. That is, only materials separated from coal

during cleaning or preparation and materials derived from underground

workings are included under the definition of coal refuse disposal

activities. The proposed definition is unclear, however, in its use of

the term ``excess soil and related materials.''

[[Page 19804]]

The remaining terms of the definition do not have Federal

counterparts, but the Director finds that this proposed definition is

not inconsistent with SMCRA and the Federal regulations in general, and

is consistent with the Federal definitions of ``coal mine waste'' and

``underground development waste,'' except for the reference to ``excess

soil and related materials.'' Therefore, the Director is requiring that

Pennsylvania further amend its program to clarify the meaning of the

term ``excess soil and related materials.''

``Pollution abatement area'' means that part of the permit area

which is causing or contributing to the baseline pollution load, which

shall include adjacent and nearby areas that must be affected to bring

about significant improvement of the baseline pollution load and which

may include the immediate location of the discharges.

This proposed definition is identical in substance to the

definition of ``pollution abatement area'' found at 25 Pa. Code

Secs. 87.202 and 88.502, which was approved by OSM as part of

Pennsylvania's standards for treatment of preexisting discharges on

remined areas. See 51 FR 5997, February 19, 1986.

``Public recreational impoundment'' is defined to mean a closed

basin, naturally formed or artificially built, which is dammed or

excavated for the retention of water and which is owned, rented or

leased by the Federal Government, the Commonwealth or a political

subdivision of the Commonwealth and which is used for swimming,

boating, water skiing, hunting, fishing, skating or other similar

activities. There is no direct Federal counterpart to this definition.

The Director finds, however, that the proposed definition is consistent

with the definition of ``impoundment'' contained in the Federal

regulations at 30 CFR 701.5, and is not inconsistent with any other

provision of SMCRA or the Federal regulations.

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

New subsection (b) requires Pennsylvania's Environmental Quality

Board (EQB) to enact regulations to implement Section 6.2 (concerning

coal refuse disposal activities on previously affected areas). Proposed

Section 3.2(b) also provides that the new regulations to be developed

to implement Section 6.2 must be consistent with the requirements of

section 301(p) of the Federal Water Pollution Control Act and the State

remining regulations for surface coal mining activities.

To the extent that the proposed provision requires the EQB to adopt

implementing coal refuse disposal regulations, the Director finds the

proposed language to be consistent with SMCRA section 503(a)(7)

concerning authority of State regulatory programs to enact rules and

regulations to carry out the provisions of SMCRA.

The remaining portion of this provision, pertaining to the Federal

Water Pollution Control Act, is outside the scope of SMCRA and its

implementing regulations. Therefore, the Director's approval of this

remaining portion is unnecessary.

4. Section 4.1 Site Selection

This new section is added to establish the criteria for selecting

sites for coal refuse disposal. Subsection (a) provides that preferred

sites shall be used for coal refuse disposal unless the applicant

demonstrates to the regulatory authority that another site is more

suitable based on engineering, geology, economics, transportation

systems and social factors and is not adverse to the public interest.

Where, however, the adverse environmental impacts of the preferred site

clearly outweigh the public benefits, the site shall not be considered

a preferred site. A preferred site is one of the following:

(1) A watershed polluted by acid mine drainage.

(2) A watershed containing an unreclaimed surface mine but which

has no mining discharge.

(3) A watershed containing an unreclaimed surface mine with

discharges that could be improved by the proposed coal refuse disposal

operation.

(4) Unreclaimed coal refuse disposal piles that could be improved

by the proposed coal refuse disposal operation.

(5) Other unreclaimed areas previously affected by mining

activities.

There is no direct Federal counterpart to the proposed State

language. However, the establishment of criteria to be used for

selecting sites for coal refuse disposal is not itself inconsistent

with the intent of SMCRA. SMCRA at sections 102(d) and 102(h)

encourages both sound coal mining operations that protect the

environment, and the reclamation of mined areas left without adequate

reclamation prior to the enactment of SMCRA on August 3, 1977. The

proposed criteria are reasonable, not inconsistent with the provisions

of SMCRA, and will likely encourage the reclamation of environmentally

damaged lands. The Director finds, therefore, that subsection (a) can

be approved.

Subsection (b) provides that, except if the site is a preferred

site, coal refuse disposal shall not occur on prime farmland; in sites

known to contain Federal threatened or endangered plants or animals or

State threatened or endangered animals; in watersheds designated as

exceptional value under 25 PA Code Chapter 93 (relating to water

quality standards); in areas hydrologically connected to and which

contribute at least five percent of the drainage to wetlands designated

as exceptional value under 25 Pa. Code Chapter 105 (relating to dam

safety and waterway management) unless a larger percentage is approved

by the department in consultation with the Pennsylvania Fish and Boat

Commission; and, in watersheds less than four square miles in area

upstream of the intake of public water supplies or the upstream limit

of public recreational impoundments.

By letter to the U.S. Environmental Protection Agency (EPA) dated

March 8, 1996 (Administrative Record Number PA 837.59), the State

explained the intent and limitations of proposed subsection 4.1(b). The

State explained that while section 4.1(b) does not prohibit coal refuse

disposal in sites known to contain Federal threatened or endangered

plants or animals, neither does it, by itself, authorize disposal in

such areas. That is, in order to receive authorization to conduct coal

refuse disposal operations on preferred sites (whether or not the sites

contain threatened or endangered species), a coal refuse disposal

permit must be obtained in accordance with the Pennsylvania program's

permitting process. All coal refuse disposal permit applications must

comply with Chapter 86 (regulations that apply to all coal mining

activities) and Chapter 90 (regulations that apply to coal refuse

disposal operations). One element of the permit review process, the

State letter explained, is that a determination must be made that the

coal refuse disposal activity will comply with Secs. 86.37(a)(15) and

90.150(d), regulations that require compliance with the Federal

Endangered Species Act.

Therefore, proposed subsection 4.1(b) categorically prohibits the

disposal of coal refuse on non-preferred sites known to contain Federal

threatened or endangered plants or animals or State threatened or

endangered animals. If the proposed coal refuse disposal site is a

preferred site, coal refuse disposal on the site may be possible, but

only after a finding by the State that the proposed coal refuse

disposal permit application is in compliance with Secs. 86.37(a)(15)

and 90.150(d) concerning endangered

[[Page 19805]]

species. These Pennsylvania program provisions are approved

counterparts to the Federal regulations at 30 CFR 773.15(c)(10) and

816/817.97(b), respectively.

By letter dated January 27, 1997 (Administrative Record Number PA-

837.61), PADEP submitted a copy of its revised Coal Refuse Disposal

Program Guidance. The draft guidance was subsequently revised on April

1, 1997 (Administrative Record Number PA-837.65). The guidance document

was finalized and made effective dated February 23, 1998

(Administrative Record Number PA-837.68). The Coal Refuse Disposal

Program Guidance is intended to further clarify what PADEP stated in

its March 8, 1996, letter concerning the implementation of proposed

Sec. 4.1(b). The Coal Refuse Disposal Program Guidance specifically

clarifies the intended implementation of Sec. 4.1(b) related to

threatened or endangered species. Pennsylvania's policy concerning the

implementation of Sec. 4.1(b) is as follows:

With respect to preferred sites, the Department will not approve

(via the site selection process) or permit (via the permitting

process) a site that is known or likely to contain federally listed

threatened or endangered species, unless the Department concludes

and the U.S. Fish and Wildlife Service concurs that the proposed

activity is not likely to adversely affect federally listed

threatened or endangered species or result in the ``take'' of

federally listed threatened or endangered species in violation of

Section 9 of the Endangered Species Act.

The Federal regulations at 30 CFR 816/817.97 concerning the

protection of fish and wildlife and related values, require the

minimization of disturbance and adverse impacts and enhancement where

practicable, and consultations with State and Federal fish and wildlife

resource agencies. For example, 30 CFR 816/817.97(b) provides that no

mining activity, including disposal of coal refuse, shall be conducted

which is likely to jeopardize the continued existence of listed

endangered or threatened species, or which is likely to result in the

destruction or adverse modification of designated critical habitats of

such species in violation of the Endangered Species Act of 1973, as

amended. 30 CFR 780.16/784.21(a)(1) provide that the scope and level of

detail of fish and wildlife information to be provided in the permit

application shall be determined by the regulatory authority in

consultation with State and Federal agencies with responsibilities for

fish and wildlife.

By letter dated July 18, 1996 (Administrative Record Number PA

837.60) the U.S. Fish and Wildlife Service (USFWS) stated that OSM has

received no incidental take statement from the USFWS exempting OSM from

the ``take'' prohibitions of Sec. 9 of the Endangered Species Act.

USFWS also noted that no consultations on Pennsylvania's coal mining

program, including the delegation of the program to the State by OSM,

or amendments to the State's mining law or regulations, have occurred

between USFWS and OSM. USFWS concluded, therefore, that there are no

legal means by which OSM or the State can issue a mining permit which

would allow for the take of a Federally listed species. USFWS further

concluded that both OSM and the State must interpret the permitting

provision in Pennsylvania's mining regulations at 25 Pa. Code

Sec. 86.37(a)(15) (relating to Federally listed species) to mean that

no proposed activity may be permitted by the State which ``may affect''

threatened or endangered species, or result in the ``take'' of

threatened or endangered species in violation of Sec. 9 of the

Endangered Species Act.

However, by letter dated April 7, 1998 (Administrative Record

Number PA 837.70) the USFWS concluded, after informal consultations

with OSM, Pennsylvania, and the EPA, and after reviewing the State's

Coal Refuse Disposal Program Guidance, that OSM approval of the

amendments which are the subject of this rulemaking is not likely to

adversely affect federally listed species in Pennsylvania. See the

Agency Comments section below for a complete discussion of the USFWS

comments.

There is no direct Federal counterpart to the proposed provision.

However, based on the information discussed above (including the

State's Coal Refuse Disposal Guidance quoted above, and the concurrence

letter from the USFWS), the Director finds that the proposed site

selection provision at subsection 4.1(b) is not inconsistent with the

Federal regulations. The Director is approving subsection 4.1(b),

however, only to the following extent:

With respect to preferred sites, the State will not approve (via

the Site Selection process) or permit (via requirements in Chapters 86

or 90) a site that is known or likely to contain Federally listed

threatened or endangered species, unless the State demonstrates and the

USFWS concurs that the proposed activity is not likely to adversely

affect Federally listed threatened or endangered species or results in

the ``take'' of Federally listed or endangered species in violation of

Section 9 of the Endangered Species Act.

Further, Sec. 86.37(a)(15) of the Pennsylvania program concerning

criteria for permit approval or denial, shall still apply to all

permits, including coal refuse disposal operations on preferred sites.

Section 86.37(a)(15) provides the following:

A permit or revised permit application will not be approved

unless the application affirmatively demonstrates and the Department

finds, in writing, on the basis of the information in the

application or from information otherwise available, which is

documented in the approval, and made available to the applicant,

that the following exist: * * * (15) The proposed activities would

not affect the continued existence of endangered or threatened

species or result in the destruction or adverse modification of

their critical habitat as determined under the Endangered Species

Act of 1973 (16 U.S.C.A. Secs. 1531-1544).

In Sec. 86.37(a)(15), the phrase ``would not affect the continued

existence of'' will be interpreted by OSM and Pennsylvania to mean that

no mining activity may be permitted by the State which ``may affect''

threatened or endangered species unless the USFWS concurs that the

proposed activity is not likely to adversely affect Federally listed

threatened or endangered species or result in the ``take'' of Federally

listed threatened or endangered species in violation of Section 9 of

the Endangered Species Act.

The Director also notes that Sec. 87.50, Sec. 88.33, Sec. 89.74,

and Sec. 90.18 (concerning Fish and Wildlife Resource Information

related to Surface Mining; Anthracite Coal; Underground Mining of Coal

and Coal Preparation Facilities; and Coal Refuse Disposal,

respectively) still apply to all permits. In order to ensure that

accurate and adequate information is obtained to make permit decisions

with respect to Federally listed species, and to ensure compliance with

Sec. 86.37(a)(15) as interpreted above, review of certain permits by

USFWS is necessary to ensure that proposed permits (i.e., new, revised,

and renewal) are ``not likely to adversely affect'' threatened or

endangered species. At least annually, the USFWS will provide a listing

of those geographic areas (e.g., counties) in Pennsylvania which have

known or likely occurrences of Federally listed species. The PADEP

shall provide the USFWS's Pennsylvania Field Office with copies of

proposed mining permits for review as part of the normal permit review

process. The USFWS will provide preliminary endangered species comments

to the State, with copies of those comments to OSM. Prior to

publication in the Pennsylvania Bulletin, the State shall resolve with

the USFWS all concerns related to

[[Page 19806]]

threatened and endangered species to ensure that Federally listed

species are not likely to be adversely affected by the proposed action.

This review mechanism will allow for concurrent review by the natural

resource agencies, and will also minimize the number of permits to be

sent by the State and reviewed by the USFWS.

The Director also notes that Sec. 90.150 (c) and (d) concerning

protection of fish, wildlife, and related environmental values

continues to apply to all coal refuse disposal permits.

Subsection 4.1(c) requires the identification of alternative sites

that were considered within a one mile radius for new refuse disposal

areas that support existing mining. Where there are no preferred sites

within a one mile radius or where the applicant demonstrates that a

nonpreferred site is more suitable, the applicant shall demonstrate the

basis for the exclusion of other sites, and shall demonstrate the

suitability of the recommended site. Where the adverse environmental

impacts of the proposed site clearly outweigh the public benefits, the

State shall not approve the site.

The Federal regulations at 30 CFR 816/817.81 through 816/817.84

authorize the storage of coal mine waste (at 30 CFR 817.81 and 817.84)

on permitted areas. The storage of coal mine waste can result in large

storage structures of potentially hazardous materials, and the Federal

regulations provide specific provisions to assure that such storage

facilities are constructed in an environmentally sound manner.

Pennsylvania has, at Chapter 90, approved counterparts the Federal

regulations concerning the storage of coal refuse.

While the proposed Pennsylvania provision provides some incentive

to use preferred sites (i.e., environmentally damaged sites) that are

close to the existing mining operations, it does not require the use of

preferred sites. This is not inconsistent with the Federal regulations

if the State authorizes the placement of coal refuse storage piles on

permitted areas and in accordance with the rules at Chapter 90

concerning coal refuse disposal. There is nothing in the proposed State

language that nullifies the applicability of Chapter 90.

The proposed State provision requires a demonstration of site

suitability on the basis of several factors, including environmental

factors. Any such demonstration of environmental suitability must, of

course, consider factors such as protection of the hydrologic balance

and threatened or endangered species as required by the Federal

regulations and the counterpart Pennsylvania rules. The Director notes

that there is nothing in the proposed language that would negate the

applicability of these approved State rules.

Because Pennsylvania will continue to apply the provisions of 25

Pa. Code Chapter 90, which correspond to the Federal regulations at 30

CFR 816/817.81 through 816/817.84, to the disposal of all coal refuse,

the Director finds that the proposed revisions are not inconsistent

with SMCRA or the Federal regulations.

Subsection (d) requires the identification, within a 25 square mile

area (about a three-mile radius), of alternative sites that were

considered, and the basis for their consideration, as new refuse

disposal areas that support proposed new coal mining activity. Where

there are no preferred sites within the 25-square mile area or the

applicant demonstrates that a nonpreferred site is more suitable, this

provision requires a demonstration of the basis for the exclusion of

other sites, and a demonstration, based on reasonably available data,

that the proposed site is more suitable. Where the adverse

environmental impacts of the proposed site clearly outweigh the public

benefits, the site will not be approved.

There are no direct Federal counterparts to these proposed site

selection criteria. However, the Director finds that the proposed

revisions are not inconsistent with SMCRA or the Federal regulations,

since Pennsylvania will continue to apply the state counterparts to the

Federal requirements, at 30 CFR 816/817.81 through 816/817.84, to the

disposal of all coal refuse.

Subsection (e) provides that the alternatives analyses required by

section 4.1 satisfies the Dam Safety and Encroachments Act (November

26, 1978 (P.L. 1375, No. 325)). Since the Dam Safety and Encroachments

Act is outside the scope of the approved State program, the Director's

approval of subsection (e) is not necessary.

5. Section 6.1 Designating Areas Unsuitable for Coal Refuse Disposal

a. Subsection (h)(5) is amended to provide for a variance to the

100-foot stream buffer zone provision for coal refuse disposal. This

provision provides for a demonstration by the operator that the

variance will not result in significant adverse hydrologic or water

quality impacts. This provision also provides for public notice of the

requested variance, a public hearing concerning the application for a

variance, the consideration of comments submitted by the Pennsylvania

Fish and Boat Commission, and a written finding by the regulatory

authority that specifies the methods and techniques that must be

employed to prevent or mitigate adverse impacts.

While SMCRA itself is silent concerning stream buffer zones, a 100-

foot stream buffer zone and variances thereto are authorized at 30 CFR

816/817.57(a). Such stream buffer zone variances are authorized

provided: (1) The regulatory authority finds that the mining activities

will not cause or contribute to the violation of water quality

standards, and will not adversely affect the water quantity and quality

or other environmental resources of the stream; and (2) any stream

diversions will comply with 30 CFR 817.43 concerning diversions.

The criteria for the variance as proposed in subsection (h)(5) are

less effective than the criteria contained in 30 CFR 816/817.57.

Specifically, the proposed term, ``significant'' renders the proposal

less effective because it is a lesser standard than the Federal

requirement that the proposed activities will not cause or contribute

to the violation of water quality standards, and will not adversely

affect the water quantity and quality or other environmental resources

of the stream. That is, whereas the Federal regulations prohibit any

adverse effects on water quality and quantity, or on other

environmental resources of the stream, the proposed regulations only

prohibit ``significant'' adverse impacts.

Therefore, the Director is approving subsection (h)(5) only to the

extent that it authorizes stream buffer zone variances for coal refuse

disposal activities that will not cause or contribute to the violation

of water quality standards, and will not adversely affect the water

quantity and quality or other environmental resources of the stream. In

effect, the Director is not approving the term ``significant.'' Also,

the Director is requiring Pennsylvania to amend its program to

authorize stream buffer zone variances for coal refuse disposal

activities only where such activities will not cause or contribute to

the violation of applicable State or Federal water quality standards,

and will not adversely affect water quality and quantity, or other

environmental resources of the stream.

Subsection 6.1(h)(5) also requires public notice in two newspapers

of general circulation in the area of the proposed variance for two

successive weeks. This notice would be in addition to the public notice

required by Sec. 86.31 concerning public notices of filing of permit

applications, and is consistent

[[Page 19807]]

with the notice required for steam buffer zone variance applications,

at 25 Pa. Code Sec. 86.102(12).

The remaining portions of subsection 6.1(h)(5), pertaining to

written orders, public hearings, and consideration of comments by the

Pennsylvania Fish and Boat Commission, have no Federal counterparts.

However, since they are in addition to the public notice requirements

for stream buffer zone variance applications, at 26 Pa. Code

Sec. 86.102(12), the Director finds that they are not inconsistent with

SMCRA or the Federal regulations.

Subsection 6.1(i) is added to provide that all new coal refuse

disposal areas shall include a system to prevent adverse impacts to

surface and ground water and to prevent precipitation from contacting

the coal refuse.

The system for preventing precipitation from contacting the coal

refuse shall be installed: as phases of the coal refuse disposal area

reach capacity; as specified in the permit; when the operator

temporarily ceases operation of the coal refuse disposal area for a

period in excess of ninety days unless the State, for reasons of a

labor strike or business necessity, approves a longer period that shall

not exceed one year, or when the operator permanently ceases operation

of the coal refuse disposal area. The system shall allow for

revegetation and the prevention of erosion.

The proposed language requiring installation of a system to prevent

adverse impacts to surface and ground water and to prevent

precipitation from contacting the coal refuse has several counterparts

in SMCRA. For example, SMCRA Sec. 515(b)(11), concerning surface

disposal of mine wastes, provides that such wastes shall be placed in

designated areas and compacted in layers with the use of incombustible

and impervious materials if necessary. SMCRA Sec. 515(b)(10),

concerning protection of the hydrologic balance, requires the avoidance

of acid or other toxic mine drainage. SMCRA Sec. 515(b)(14) requires

that acid-forming and toxic-forming materials be treated or buried and

compacted or otherwise deposited in a manner designed to prevent

contamination of ground or surface waters.

Despite the fact that the proposed language allows delays in

completing the installation of the preventive system for reasons such

as strikes and business necessity, the State rules at Chapter 90

concerning coal refuse disposal operations continue to apply at all

times without delay. For example, Sec. 90.122 continues to provide that

coal refuse disposal areas shall be maintained to ensure that the

leachate and surface runoff from the permit area will not degrade

surface water or groundwater, or exceed the effluent limitations of

Sec. 90.102.

The Director finds the proposed language is consistent with SMCRA

Sec. 515(b)(10) concerning protection of the hydrologic balance, and 30

CFR 816/817.81(a)(1) concerning coal mine waste, protection of surface

and groundwater from leachate and surface water runoff.

6. Section 6.2 Coal Refuse Disposal Activities on Previously Affected

Areas

This is a new section. Subsection (a) provides that a special

authorization may be requested to engage in coal refuse disposal

activities on areas with preexisting pollutional discharges resulting

from previous mining. This subsection also provides that all of the

provisions of Pennsylvania's Coal Refuse Disposal Act (P.L. 1040, No.

318, September 24, 1968 and amended October 10, 1980 (P.L. 807. No.

154)) apply to special authorizations to conduct coal refuse disposal

activities on areas with preexisting pollutional discharges, except as

modified by this new section 6.2.

Subsection (b) provides the criteria under which the State may

grant a special authorization to engage in such coal refuse disposal.

The State may grant the special authorization if such special

authorization is part of:

(1) A permit issued under section 4 of the State's Coal Refuse

Disposal Act, except for permit transfers after the effective date of

this section, if the request is made at the time of submittal of a

permit application or prior to a State decision to issue or deny that

permit; or

(2) A permit revision pursuant to State regulation, but only if the

operator affirmatively demonstrates to the satisfaction of the State

that:

(i) The operator has discovered pollutional discharges within the

permit area that came into existence after its permit application was

approved;

(ii) The operator has not caused or contributed to the pollutional

discharges;

(iii) The proposed pollution abatement area is not hydrologically

connected to any area where coal refuse disposal activities have been

conducted pursuant to the permit;

(iv) The operator has not affected the proposed pollution abatement

area by coal refuse disposal activities; and

(v) The State has not granted a bonding authorization and coal

refuse disposal approval for the area.

Subsection (c) provides that the State may not grant a special

authorization unless the operator seeking a special authorization for

coal refuse disposal demonstrates all of the following:

(1) Neither the operator nor any officer, principal shareholder,

agent, partner, associate, parent corporation, subsidiary or affiliate,

sister corporation, contractor or subcontractor or any related party:

(i) Has any legal responsibility or liability as an operator under

section 315 of the Pennsylvania Act of June 22, 1937 (P.L. 1987, No.

394), known as ``The Clean Stream Law,'' for treating the pollutional

discharges from or on the proposed pollution abatement area; or

(ii) Has any statutory responsibility or liability for reclaiming

the proposed pollution abatement area.

(2) The proposed pollution abatement plan will result in a

significant reduction of the baseline pollution load and represents

best technology.

(3) The land within the proposed pollution abatement area can be

reclaimed.

(4) The coal refuse disposal activities on the proposed pollution

abatement area will not cause any additional surface water pollution or

groundwater degradation.

(5) The coal refuse disposal activities on permitted areas other

than the proposed pollution abatement area will not cause any surface

water pollution or groundwater degradation.

(6) There are one or more preexisting pollutional discharges from

or on the pollution abatement area.

(7) All requirements of Pennsylvania's Coal Refuse Disposal Control

Act and its implementing rules that are not inconsistent with section

6.2 have been met.

Subsection (d) provides that a special authorization may be denied

if granting it will or is likely to affect any legal responsibility or

liability for abating the pollutional discharges from or near the

pollution abatement area.

Subsection (e) provides that, except as specifically modified by

section 6.2, an operator requesting special authorization shall comply

with the permit application requirements of sections 4 and 5 of

Pennsylvania's currently approved Coal Refuse Disposal Act. The

operator must also provide additional information as required by the

State, relating to delineation of the pollution abatement area

(including the location of preexisting discharges), a description of

the hydrologic balance of the pollution abatement area (including water

quality and quantity monitoring data), and a

[[Page 19808]]

description of the abatement plan that represents best technology.

Subsection (f) provides that an operator who is granted a special

authorization shall implement the approved water quality and quantity

monitoring program and abatement plan, notify the State immediately

prior to the completion of each step of the abatement plan, and provide

progress reports to the State within 30 days after the completion of

each step of the abatement program in a manner described by the State.

The proposed special authorizations must comply with 40 CFR part

434 concerning performance standards for coal mining point source

discharges, and with Sec. 301(p) of the Federal Water Pollution Control

Act (33 U.S.C. 1311(p)) concerning modified permits for coal remining

operations. The effluent limitation standards will be identified

jointly by the EPA and the State on a permit-by-permit basis during the

development of the National Pollutant Discharge Elimination System

(NPDES) permit. The Director notes that the EPA has provided its

concurrence with the proposed amendments. See the Environmental

Protection Agency section below for a discussion of all EPA comments

and conditions on their approval of these amendments. The Director

finds that the proposed provisions at Section 6.2(a) through (f) have

no Federal counterparts. However, the Director finds that these

subsections are not inconsistent with SMCRA and can be approved,

provided that nothing in this approval authorizes the State to adopt

revised effluent limitations without approval by the EPA pursuant to

the Clean Water Act.

Subsection (g)(1) specifies that an operator granted special

authorization under section 6.2 shall be responsible for the treatment

of discharges in the following manner:

(i) Except for preexisting discharges which are not encountered

during coal refuse disposal activities or the implementation of the

abatement plan, the operator shall comply with all applicable

regulations of the State.

(ii) The operator shall treat preexisting discharges which are not

encountered during coal refuse disposal activities or implementation of

the abatement plan to meet the baseline pollution load when the

baseline pollution load is exceeded according to the following

schedule:

(A) Prior to final bond release, if the operator is in compliance

with the pollution abatement plan, where the State demonstrates that

the operator has caused the baseline pollution load to be exceeded; the

State shall have the burden of proving that the operator caused the

baseline pollution load to be exceeded;

(B) Prior to final bond release, if the operator is not in

compliance with the pollution abatement plan, unless the operator

affirmatively demonstrates that the reason for exceeding the baseline

pollution load is a cause other than the operator's coal refuse

disposal and abatement activities; and

demonstrates that the operator has caused the baseline pollution load

to be exceeded; the department shall have the burden of proving that

the operator caused the baseline pollution load to be exceeded.

Subsection (g)(1)(ii)(A) allocates the burden of proof in a manner

which, at first blush, appears to be inconsistent with the Federal

regulations at 43 CFR 4.1171(b).

That Federal provision states that ``the ultimate burden of

persuasion shall rest with the applicant for review'' of any notice of

violation or cessation order. In addition, the legislative history of

SMCRA clearly states that the applicant for review of a notice or order

carries the ultimate burden of proof in the administrative review

proceeding. S. Rep. No. 128, 95th Cong., 1st Sess. 93 (1977). However,

this proposal shifts the burden of proof to the State Regulatory

Authority only where it issues an enforcement action for exceeding the

baseline pollution load for a preexisting, unencountered discharge. As

noted below, the EPA states in its concurrence that discharges

unaffected by and diverted around or piped under fills (not

encountered) would not be subject to the effluent guidelines at 40 CFR

part 434--subpart B. Because these preexisting unencountered discharges

are not subject to the requirements of 40 CFR part 434, they are

likewise not regulated under 30 CFR 816/817.42. Moreover, since it

proposes to regulate pollutional discharges and take enforcement

actions in a manner which is beyond the scope of, but not inconsistent

with, SMCRA, Pennsylvania is free to allocate the burden of proof in

administrative review proceedings of such enforcement actions in a

different manner than is provided for in 43 CFR 4.1171(b). Therefore,

subsection (g)(1)(ii)(A) can be approved.

Subsection (g)(2) provides that an allegation that the operator

caused the baseline pollution load to be exceeded under subclause (ii)

of clause (1) shall not prohibit the State from issuing, renewing or

amending the operator's license and permits or approving a bond release

until a final administrative determination has been made of such

alleged violation.

This subsection is no less stringent than SMCRA, so long as it

applies only to bond releases for permits other than the permit for

which the allegation of exceeding the baseline pollution load is

pending. If it were interpreted to allow bond release on the permit for

which the allegation is pending, subsection (g)(2) would be less

stringent than section 519(c)(3) of SMCRA, 30 U.S.C. 1269(c)(3), which

allows a final bond release only after all reclamation requirements of

SMCRA have been met. However, subsection 6.2(j)(3) of this amendment,

discussed below, prohibits final bond release of special authorization

permits where the operator has caused the baseline pollution load to be

exceeded after phase two of bond release, or within five years of the

discontinuance of treatment of a preexisting, unencountered discharge.

As such, any allegation that the operator caused the baseline pollution

load to be exceeded would, in accordance with subsection 6.2(j)(3),

prevent final bond release until the allegation is found to be untrue.

Therefore, subsection (g)(2) is approved to the extent that it applies

to final bond releases on permits other than the permit for which the

allegation that the baseline pollution load has been exceeded is

pending.

Subsection (g)(3) provides that, for this subsection, the term

``encountered'' shall not be construed to mean diversions of surface

water and shallow groundwater flow from areas undisturbed by the

implementation of the abatement plan which would otherwise drain into

the affected area, provided such diversions are designed, operated and

maintained in accordance with all applicable regulations of the State.

The Federal regulations at 30 CFR 816/817.42 require that mining

operations (including coal refuse disposal operations) comply with all

applicable State and Federal water quality laws and regulations and

with the effluent limitations for coal mining promulgated by EPA and

set forth in 40 CFR part 434. In order to approve Pennsylvania's

program amendment, OSM is required to obtain the concurrence of the EPA

in accordance with Sec. 503(b) of SMCRA. On September 20, 1995, OSM

requested the concurrence of the EPA with respect to those aspects of

the amendment which relate to air or water quality standards

promulgated under the authority of the Clean Water Act.

In a letter to OSM dated January 30, 1997 (Administrative Record

Number

[[Page 19809]]

PA-837.63), EPA conditionally concurred with the proposed Pennsylvania

amendment (see Environmental Protection Agency section below for a

complete discussion of EPA comments). The EPA provided five conditions

for its concurrence with the proposed amendments.

The EPA stated that to emphasize its concern over in-stream refuse

disposal, EPA concurrence is conditioned on the following: a.) PADEP

notification to EPA within 30 days of receipt of a joint SMCRA/NPDES

permit application for an in-stream refuse disposal project, and b.)

PADEP submittal to EPA of any joint SMCRA/NPDES application or permit

information which EPA specifically requests for an effective review.

The EPA stated that it will not object to PADEP issuance of an

NPDES permit for proposed in-stream refuse disposal facilities if (1)

compliance with Section 404 permit requirements is assured; (2) there

are no feasible alternatives to the coal refuse disposal, protection of

existing and designated downstream aquatic life and uses is assured,

and provisions are established for adequate mitigation.

Where discharges from refuse disposal activities would cause or

contribute to an exceedance of water quality standards, the NPDES

permit must contain water quality-based effluent limitations in

compliance with 40 CFR 122.44(d). Adequate monitoring and analysis of

the background water quality of the receiving stream must be done prior

to permit issuance and as part of the permit development process. The

EPA also stated that appropriate measures must be planned and

implemented for coal refuse disposal facilities which will prevent long

term acid drainage after closure.

The proposed statutory revisions adopted by the State comply with

EPA's determination regarding the treatment level required under

Federal law for unencountered discharges. The proposed standards

regarding treatment levels for discharges that are encountered are the

applicable regulations of the department (Sec. 90.102 Hydrologic

balance: water quality standards, effluent limitations and best

management practices). The Director notes that EPA review of all permit

applications related to in-stream refuse disposal and other permit

applications identified by the EPA will help assure that the proposed

coal refuse disposal operations in Pennsylvania will meet the

requirements of the Clean Water Act.

In addition, EPA recommended that proposed disposal of potentially

acidic refuse in valley fills on non-impacted (virgin) areas be subject

to reviews under individual Sec. 404 permits, rather than coverage

under the nationwide 404 permit.

The EPA has clarified that its understanding of Sec. 6.2(g)(1)(i)

is that coal refuse disposal operations that encounter a preexisting

discharge shall comply with the effluent limitations that will be

described in the NPDES permit, and which will be consistent with the

effluent guideline limitations for coal preparation plants and

associated areas as identified at 40 CFR Part 434--Subpart B. However,

the EPA notes that discharges unaffected by and diverted around or

piped under fills (not encountered) would not be subject to the

effluent guidelines at 40 CFR Part 434--Subpart B. Such discharges that

are not encountered shall meet the baseline pollution load standard as

defined at Sec. 3(1.3), and shall be treated in accordance with the

provisions at Sec. 6.2(g)(1)(ii). The EPA will, as part of its review

of all NPDES permits related to in-stream refuse disposal and other

permits, help assure that adequate monitoring and analysis of the

background water quality of the receiving stream will be done prior to

permit issuance. In addition, the EPA will be able to provide guidance

to the State to help assure the prevention of long term acid drainage

after closure.

The Director notes that the proposed provisions at

Sec. 6.2(g)(1)(ii) address the possibility that coal refuse disposal

operations (or implementation of the abatement plan) may cause the

baseline pollution load to be exceeded. As a consequence of exceeding

the baseline pollution load, the operator must comply with the proposed

provisions at Sec. 6.2(g). The Director recognizes the possibility that

such coal refuse disposal operations (or implementation of the

abatement plan) could affect a preexisting discharge to such a degree

that, in effect, the operations have ``encountered'' that discharge. In

such a circumstance (i.e., a discharge is encountered) an operator

would be required to treat the preexisting discharge not to baseline,

but to the applicable Pennsylvania water quality standards at Chapter

90.102. Proposed Sec. 6.2(g)(1)(i) provides that for preexisting

discharges that are encountered, the operator shall comply with all

applicable regulations of the department.

The Director also recognizes the difficulty and complexity of

making such a determination. By necessity, these determinations would

have to be made by the State on a case-by-case basis after a thorough

analysis of the circumstances and variables involved.

For example, under the proposed provisions, coal refuse may be

placed upon a preexisting coal refuse deposit with a pre-existing

pollutional discharge. Under such circumstances, the surface of the

pre-existing coal refuse deposit may be prepared (modified) to accept

deposition of a new coal refuse deposit so that the resulting deposit

is stable. The surface preparation activities on the pre-existing

deposit will not, of itself, be considered an ``encounter'' of the pre-

existing pollutional discharge.

During coal refuse disposal operations, pollutional discharges from

the pre-existing coal refuse deposit that is being buried under the new

coal refuse deposit, will be treated to baseline standards. Pollutional

discharges flowing from the newly placed coal refuse that lies above

the pre-existing coal refuse deposit will be subject to the State

effluent standards for disposal operations at Chapter 90, subchapter D

at 90.102. However, if during its inspections of the operations, it

becomes apparent to the State that pollutional waters from the new coal

refuse disposal fill are co-mingling with (i.e., encountering) the

pollutional discharge from the pre-existing coal refuse deposit, then

the State must apply the effluent limitations at Chapter 90, subchapter

D at 90.102 to the pre-existing discharge, as well as to the ``new''

discharge, rather than the baseline pollution load standard.

With the exceptions noted above for subsections (g)(1)(ii)(A) and

(g)(2), the Director finds that 6.2(g) is consistent with the

requirements of the Federal regulations at 30 CFR 816/817.42, provided

that nothing in this approval authorizes the State to adopt revised

effluent limitations without approval by the EPA pursuant to the Clean

Water Act.

Subsection (h) provides that an operator who is required to treat

preexisting discharges under subsection (g) will be allowed to

discontinue preexisting discharges when the operator demonstrates that

all of the conditions identified below have been satisfied.

(1) The baseline pollution load is no longer being exceeded as

shown by all ground and surface water monitoring;

(2) All requirements of the permit and the special authorization

have been or are being met;

(3) The operator has implemented each step of the abatement plan as

approved in the authorization; and

(4) The operator did not cause or allow any additional surface

water pollution or groundwater degradation

[[Page 19810]]

by reaffecting the pollution abatement area.

The Director notes that the proposed language at subsection 6.2(h)

could be misinterpreted. The proposed language in the first sentence of

this subsection which states that ``an operator required to treat

preexisting discharges under subsection (g) will be allowed to

discontinue treating . . .'' is unclear. Subsection 6.2(g) pertains to

both discharges that are encountered and those that are not

encountered, and the treatment standards are different for each.

The Director interprets the proposed language in the first sentence

of Sec. 6.2(h) to pertain only to subsection 6.2(g)(1)(ii), which

governs discharges that are not encountered. Therefore, the Director is

approving the proposed provision to the extent that it provides that an

operator may only discontinue treating preexisting discharges that are

not encountered when the operator demonstrates that the ``baseline''

pollution load is no longer being exceeded. Preexisting discharges that

are encountered must be treated to the State water quality standards at

Chapter 90, subchapter D at 90.102. Also, the Director is requiring

that the State further amend the Pennsylvania program to clarify that

Subsection 6.2(h) of the Coal Refuse Disposal Act pertains to

preexisting discharges that are not encountered.

Subsection (i) provides that if any condition set forth in

subsection 6.2(g) occurs after discontinuance of treatment under

subsection 6.2(h), the operator shall reinstitute treatment in

accordance with subsection 6.2(g). An operator who reinstitutes

treatment under this subsection shall be allowed to discontinue

treatment if the requirements of subsection 6.2(h) are met. This

provision will help assure that treatment will be restarted as

necessary to comply with the provisions of subsection 6.2(g).

To the extent that subsection 6.2(g), (h), and (i) are applied as

discussed in this finding, the Director finds that the proposed

provisions are not inconsistent with SMCRA, and are consistent with the

Federal regulations at 30 CFR 816/817.42. The Director is making this

finding with the understanding that the regulations to be developed by

Pennsylvania to implement Section 6.2 (as is required by the proposed

provisions at Section 3.2(b) of the Coal Refuse Disposal Act) will

clarify that preexisting discharges that are encountered must be

treated to the State effluent standards at Chapter 90, subchapter D at

90.102.

Subsection (j) provides that for pollution abatement areas subject

to a grant of special authorization under subsection 6.2, the operator

shall comply with all requirements relating to bonds set forth in

section 6 of Pennsylvania's existing Coal Refuse Disposal Act, except

that the criteria and schedule for release of bonds shall be as

follows:

(1) Up to fifty-percent of the amount of bond if the operator

demonstrates that:

(i) All activities were conducted in accordance with all applicable

requirements;

(ii) The operator has satisfactorily completed installing the water

impermeable cover, grading, planting and drainage control in accordance

with the approved abatement plan;

(iii) The operator has properly implemented each step of the

approved abatement plan;

(iv) The operator has not caused the baseline pollution load to be

exceeded for a period of a minimum of six months prior to the submittal

of a request for bond release and until the bond release is approved as

shown by all ground and surface water monitoring; and

(v) The operator has not caused or contributed to any ground or

surface water pollution by reaffecting the pollution abatement area.

(2) Up to an additional thirty-five percent of the amount of bond

if the operator demonstrates that:

(i) The operator has replaced topsoil, completed final grading and

achieved successful vegetation in accordance with the approved

reclamation plan;

(ii) The operator has not caused or contributed to any ground or

surface water pollution by reaffecting the pollution abatement area;

and

(iii) The operator has achieved the actual improvement of the

baseline pollution load described in the abatement plan and shown by

all ground and surface water monitoring for the period of time provided

in the abatement plan, or has achieved all of the following:

(A) At a minimum, the operator has not caused the baseline

pollution load to be exceeded as shown by all ground and surface water

monitoring for a period of twelve months from the date of initial bond

release under clause (1) or from the date of discontinuance of

treatment under subsection 6.2(h).

(B) The operator has conducted all measures provided in the

abatement plan and any additional measures specified by the State in

writing at the time of initial bond release under clause (1).

improvements and the elimination of public health and safety problems

by engaging in coal refuse disposal activities and reaffecting the

pollution abatement area.

(D) The operator has stabilized the pollution abatement area.

(3) The remaining amount of bond if the operator demonstrates that:

(i) The operator has not caused the baseline pollution load to be

exceeded from the time of bond release under clause (2) or, if

treatment has been initiated any time after release of the bond, for a

period of five years from the date of discontinuance of treatment under

subsection 6.2(h); and

(ii) The applicable liability period of section 6 has expired and

the operator has successfully completed all coal refuse disposal and

reclamation activities.

In accordance with the Federal regulations at 30 CFR 800.40, the

State's amendment provides for Phase I bond release after the

completion of refuse placement and grading; Phase II bond release after

revegation has been established; and Phase III bond release after the

expiration of the extended liability period.

In addition, the State's bond release provisions establish special

criteria to ensure that final bond release will not be granted unless

the operator at a minimum, is satisfying the effluent limitations

established by PADEP and approved by EPA for areas with preexisting

pollutional discharges, the operator has fully implemented the approved

abatement and reclamation plan and the operator has not caused

degradation of the baseline pollution load for a specified period of

time.

Therefore, the Director finds that proposed Sec. 6.2(j) provides

sufficient guarantees to ensure that final release of the bond will not

occur until the operation has satisfied the water quality standards

established by EPA and met all other reclamation requirements that

apply to any surface mining operation. The Director finds subsection

(j) to be no less effective than the Federal bond release standards at

30 CFR 800.40.

Subsection 6.2(k) sets forth the standard of successful

revegetation for reclamation plans approved as part of a special

authorization. The proposed standard of successful revegetation shall

be, as a minimum, the establishment of ground cover of living plants

not less than can be supported by the best available topsoil or other

suitable material in the reaffected area, shall not be less than ground

cover existing before disturbance and shall be adequate to control

erosion: Provided,

[[Page 19811]]

however, that the State may require that the standard of success comply

with section 5(c) and (e) of the current Coal Refuse Disposal Act where

it determines compliance is integral to the proposed pollution

abatement plan.

The Director finds proposed subsection (k) to be consistent with 30

CFR 816.115(b)(5), except as noted below. The Federal provision at

816.116(b)(5) provides the minimum revegetation standards for areas

that were previously disturbed by mining, and that were not reclaimed

to the requirements of Subchapter K (performance standards). The

proposed State provision, however, lacks the requirement that to

qualify for the revegetation standards, the area that was previously

disturbed by mining must not have been reclaimed to the State's

performance standards. To be no less effective than 816.116(b)(5), the

State needs to limit the application of the proposed standards to areas

that were previously disturbed by mining and that were not reclaimed to

the State reclamation standards.

Therefore, the Director is approving subsection (k) only to the

extent that it is applicable to areas previously disturbed by mining

that were not reclaimed to the standards of the Pennsylvania program.

In addition, the Director is requiring that the State further amend the

Pennsylvania program to be no less effective than 30 CFR 816.116(b)(5),

by limiting the application of the revegetation standards under

Subsection 6.2(k) of its Coal Refuse Disposal Act, to areas that were

previously disturbed by mining and that were not reclaimed to the

State's reclamation standards.

Subsection 6.2(l) provides that forfeited funds in the Surface

Mining Conservation and Reclamation Fund (Fund) shall be applied as a

credit to the bond required for a special authorization. In addition,

special authorization areas shall be exempt from permit reclamation

fees.

The Director notes that any forfeited Fund moneys to be used would

have originally come from a form of bond which is approved under the

Pennsylvania program. As such, the use of these forfeited Fund moneys

to ``rebond'' the site is not, per se, inconsistent with section 509 of

SMCRA, 30 U.S.C. 1259, and 30 CFR 800.12, pertaining to the requirement

of a performance bond and the acceptable forms thereof. However, if the

forfeited moneys for a particular site are sufficient to perform all

outstanding reclamation obligations for the site, then the site should

not be reclaimed to lesser reclamation standards under a special

authorization. For example, if the forfeited moneys in the Fund were

used to reclaim the site, and that reclamation would result in the

elimination of a pollutional discharge or revegetation of the site to

the level required to support the land use approved in the original

permit, then it would be inappropriate and a loss to the environment to

reclaim the site to lesser standards under special authorization. Under

these circumstances, the State should not approve the special

authorization.

The Director finds that the proposed provisions, concerning the use

of previously forfeited funds in establishing an appropriate bond

amount for a special authorization area, are not inconsistent with the

Federal forfeiture of bond provisions with the following exception. The

Director is approving 6.2(l) to the extent that the PADEP will not

approve a special authorization when such an authorization would result

in the site being reclaimed to lesser standards than could be achieved

if the forfeited bond moneys were used to reclaim the site to the

standards approved in the original permit under which the bond moneys

were forfeited. In addition, the Director is requiring that the State

further amend the Pennsylvania program to clarify that under Subsection

6.2(l) of its Coal Refuse Disposal Act, a special authorization for

coal refuse disposal operations will not be granted, when such an

authorization would result in the site being reclaimed to lesser

standards than could be achieved if the moneys paid into the Fund, as a

result of a prior forfeiture on the area, were used to reclaim the site

to the standards approved to the original permit under which the bond

moneys were forfeited.

Subsection (m) provides that an operator granted special

authorization under section 6.2 shall be permanently relieved from the

requirements of subsection 6.2(g) and the act of June 22, 1937 (P.L.

1987, No. 394), known as ``The Clean Streams Law,'' for all preexisting

discharges, identified in subsection 6.2(e), to the extent of the

baseline pollution load if the operator complies with the terms and

conditions of the pollution abatement plan and the baseline pollution

load has not been exceeded at the time of final bond release. Relief of

liability under this subsection shall not act or be construed to

relieve any person other than the operator granted special

authorization from liability for the preexisting discharge; nor shall

it be construed to relieve the operator granted special authorization

from liability under subsection 6.2(g)(1)(ii) if the baseline pollution

is exceeded.

As discussed above in the finding for Section 6.2(g), the Director

has determined that, with the exceptions noted for subsections

(g)(1)(ii)(A) and (g)(2), proposed Section 6.2(g) is consistent with

the requirements of the Federal regulations at 30 CFR 816/817.42

concerning water quality standards and effluent limitations. Under the

proposed provisions, an operator with a special authorization would be

required to comply with the Pennsylvania program performance standards

for all preexisting pollutional discharges encountered by their

operations and for all new pollutional discharges resulting from their

operations, and to treat preexisting pollutional discharges in

accordance with subsection 6.2(g). However, upon final bond release

under subsection 6.2(j), an operator granted a special authorization

would no longer be responsible for the preexisting pollutional

discharges identified in the special authorization. To qualify, the

operator with a special authorization must have complied with the terms

and conditions of the pollution abatement plan and the provisions of

Subsection 6.2(g) concerning the exceedence of the baseline pollution

load.

As further discussed in the finding for Subsection 6.2(g), the EPA

has concluded that discharges unaffected by and diverted around or

piped under fills (not encountered) would not be subject to the

effluent guidelines at 40 CFR part 434--subpart B. Such discharges that

are not encountered shall meet the baseline pollution load standard as

defined at Sec. 3(1.3), and shall be treated in accordance with the

provisions at Sec. 6.2(g)(1)(ii). The Director finds, therefore, that

the proposed subsection 6.2(m) is not inconsistent with the Federal

regulations at 30 CFR 816.42 concerning water quality standards and

effluent limitations.

7. Section 6.3 Experimental Practices

This new section sets forth criteria established to encourage

advances in coal refuse disposal practices and advance technology or

practices that will enhance environmental protection with respect to

coal refuse disposal activities, and authorizes the State to grant

permits approving experimental practices and demonstration projects.

The State may grant such permits if:

(1) The environmental protection provided will be potentially more

protective or at least as protective as required by this act and State

regulations;

[[Page 19812]]

(2) The coal refuse disposal activities approved under the permits

are not larger or more numerous than necessary to determine the

effectiveness and economic feasibility of the experimental practices or

demonstration projects; and

(3) The experimental practices or demonstration projects do not

reduce the protection afforded public health and safety below that

provided by this act and state regulations.

SMCRA section 711 provides that the regulatory authority may, with

approval by the Secretary, authorize departures in individual cases on

an experimental basis from the environmental protection performance

standards of sections 515 and 516 of SMCRA. The proposed provisions are

substantively identical to the provisions of SMCRA section 711

concerning experimental practices, except that they are silent

concerning the requirement to obtain approval from the Secretary for

each experimental practice, and do not clarify that such practices are

only approved as part of the normal permit approval process and only

for departures from the environmental protection performance standards.

The Director notes that the Pennsylvania rules developed to implement

these provisions must be consistent with and no less effective than the

Federal regulations at 30 CFR 785.13 concerning experimental practices

mining.

The Director is approving the proposed amendments concerning

experimental practices. In addition, the Director is requiring that the

State further amend the Pennsylvania program by adding implementing

rules no less effective than 30 CFR 785.13, and no less stringent than

SMCRA Section 711 and which clarify that experimental practices are

only approved as part of the normal permit approval process and only

for departures from the environmental protection performance standards,

and that each experimental practice receive the approval of the

Secretary.

8. Section 15.1 Suspension of Implementation of Certain Provisions

This new provision provides for the suspension of any provision of

Act 1994-114 found to be inconsistent with SMCRA or section 402 of the

Federal Water Pollution Control Act (FWPCA) (62 Stat. 1155, 33 U.S.C.

section 1251 et seq.). This new provision also provides that the State

shall develop a regulatory program and program amendments under SMCRA

and the FWPCA that are consistent with the requirements of section

301(p) of the FWPCA and the State remining regulations for surface

mining activities. The Director finds the proposed language to be

consistent with SMCRA section 503(a)(7) concerning State programs, and

with the Federal regulations at 30 CFR 732.17 concerning State program

amendments.

IV. Summary and Disposition of Comments

Federal Agency Comments

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

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Pennsylvania program.

The U.S. Fish and Wildlife Service (USFWS) expressed concern that

the proposed amendments at Sec. 4.1(b) concerning site selection, may

lead to adverse impacts on Federally listed threatened or endangered

species in violation of the Federal Endangered Species Act of 1973 (87

Stat. 884, as amended; 16 U.S.C. 1531 et seq.). Specifically, the

concern is with language at Sec. 4.1(b) which states, ``Except if it is

a preferred site, coal refuse disposal shall not occur * * * in sites

known to contain Federal threatened or endangered plants or animals.''

USFWS interpreted the quoted language as allowing the disposal of coal

refuse on preferred sites known to contain Federally listed endangered

or threatened species. USFWS believed that such activity would

reasonably be expected to adversely affect threatened and endangered

species.

The USFWS comment stated that OSM has received no incidental take

statement from the USFWS exempting OSM from the ``take'' prohibitions

of Sec. 9 of the Endangered Species Act, 16 U.S.C. Sec. 1538. USFWS

also noted that no consultations on Pennsylvania's coal mining program,

including the delegation of the program to the State by OSM, or

amendments to the State's mining law or regulations, have occurred