Pennsylvania Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-129-FOR]

Pennsylvania Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Pennsylvania regulatory program (Pennsylvania program) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.

1201 et seq., as amended. Pennsylvania has submitted this proposed

amendment to reflect changes made to regulations in the Pennsylvania

program through the Department's Regulatory Basics Initiative (RBI).

Under this initiative, regulations were revised because they were

considered to be unclear, unnecessary or more stringent than the

corresponding Federal regulation. The RBI resulted in the rulemaking in

Coal Mining Permitting and Performance Standards, Pennsylvania

Bulletin, Vol. 28, No. 19, May 9, 1998. The proposed amendment revises

certain portions of 25 Pennsylvania Code Chapter 86, Surface and

Underground Mining: General; Chapter 87, Surface Mining of Coal;

Chapter 88, Anthracite Coal; Chapter 89, Underground Mining of Coal and

Coal Preparation Facilities; and Chapter 90, Coal Refuse Disposal. The

amendments are intended to revise the Pennsylvania program to be

consistent with the corresponding Federal regulations.

DATES: Written comments must be received on or before 4:00 p.m. on

January 18, 2000. If requested, a public hearing on the proposed

amendments will be held at 1:00 p.m. on January 11, 2000. Requests to

present oral testimony at the hearing must be received on or before

4:00 p.m. on January 3, 2000.

ADDRESSES: Written comments and requests to testify at the hearing

should be mailed or hand-delivered to Mr. Robert J. Biggi, Director,

Harrisburg Field Office at the first address listed below. Our practice

is to make comments, including names and home addresses of respondents,

available for public review during regular business hours. Individual

respondents may request that we withhold their home address from the

rulemaking [or administrative] record, which we will honor to the

extent allowable by law. There also may be circumstances in which we

would withhold from the rulemaking [or administrative] record a

respondent's identity, as allowable by law. If you wish us to withhold

your name and/or address, you must state this prominently at the

beginning of your comment. However, we will not consider anonymous

comments. We will make all submissions from organizations or

businesses, and from individuals identifying themselves as

representatives or officials of organizations or businesses, available

for public inspection in their entirety.

Copies of the Pennsylvania program, the proposed amendment, a

listing of any scheduled public meetings or hearing, and all written

comments received in response to this notice will be available for

public review at the addresses listed below during normal business

hours, Monday through Friday, excluding holidays:

Office of Surface Mining Reclamation and Enforcement, Harrisburg Field

Office, Third Floor, Suite 3C, Harrisburg Transportation Center

(Amtrack), 415 Market Street, Harrisburg, Pennsylvania 17101.

Telephone: (717) 782-4036.

Pennsylvania Department of Environmental Protection, Bureau of

Abandoned Mine Reclamation, 400 Market Street, P.O. Box 8476,

Harrisburg, Pennsylvania 17101. Telephone: (717) 783-2267.

Each requester may receive, free of charge, one copy of the

proposed amendment by contacting the OSM Harrisburg Field Office.

FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director,

Harrisburg Field Office, Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

On July 30, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background on the Pennsylvania

program, including the Secretary's findings and the disposition of

comments can be found in the July 30, 1982 Federal Register (47 FR

33079). Subsequent actions concerning the regulatory program amendments

are identified at 30 CFR 938.15.

II. Discussion of the Proposed Amendment

By letter dated November 30, 1999 (Administrative Record No. PA-

849.02), the Pennsylvania Department of Environmental Protection

(PADEP) submitted a proposed amendment to its program because of the

department's Regulatory Basics Initiative (RBI). Under the RBI,

regulations were revised because they were considered unclear,

unnecessary or were more stringent than the corresponding federal

regulations.

PADEP proposes to amend certain provisions of 25 Pennsylvania Code,

Chapters 86 through 90, as follows:

Chapter 86, Surface and Underground Coal Mining: General

Section 86.2 Scope

PADEP proposes to correct a grammatical error by changing the word

``specify'' to ``specifies'' in the opening paragraph.

Section 86.37. Criteria for Permit Approval or Denial

PADEP proposes to modify subsection (4) to assure activities

proposed under the application have been designed to prevent material

damage to the hydrologic balance outside the proposed permit area by

adding the word ``material'' before damage and eliminating the words

``within and'' before the word ``outside''.

PADEP proposes to modify subsection (6) regarding the effects of

proposed coal mining activities on properties listed on or eligible for

listing on the National Register of Historic Places by deleting the

phrase ``or eligible for inclusion on'' from the second sentence and

re-ordering the sentences. The first two sentences of subsection (6)

now read as: ``The proposed activities will not adversely affect any

publicly owned parks or places included on the National Register of

Historic Places, except as provided for in Subchapter D. The effect of

the proposed coal mining activities on properties listed on or eligible

for listing on the National Register of Historic Places has been taken

into account by the Department''.

Section 86.40 Permit Terms

PADEP proposes to modify subsection (b) by adding criteria under

which the Department may grant an extension of time for commencement of

mining activities by adding the phrase ``or if there are conditions

beyond the control and without the fault or negligence of the

permittee''.

[[Page 70645]]

Section 86.64 Right of Entry

PADEP proposes to modify this section by adding additional criteria

for documenting right of entry by adding the following sentence to

subsection (a) ``The description shall identify the documents by type

and date of execution, identify the specific lands to which the

document pertains and explain the legal rights claimed by the

applicant''. Existing subsection (b)(1) and (2) are eliminated and new

subsections (b)(1) through (3) are added specifying the documents

required. New subsection (c) is added as ``This section shall not be

construed to provide the Department with the authority to adjudicate

property rights disputes''. Existing subsection (c) is re-lettered as

(d), new subsection (d)(3) is added to specify that the requirements of

the subsection are in addition to the requirements required by

subsections (a) and (b), and existing subsections (2)(d) and (2)(e) are

re-lettered as(3)(e) and (3)(f), respectively, which specify that all

information required in the subsection shall be made part of the permit

application.

Section 86.70 Proof of Publication

PADEP proposes to modify this subsection to require that an

application to the Department shall contain an intent to publish, and a

copy of the language to appear in the public notice as well as a copy

of the advertisements or the original notarized proof of publication.

Section 86.132 Definitions

Substantially disturb. PADEP proposes to modify this definition by

adding the word ``significant'' before ``impact''. The relevant portion

of the definition now reads ``For purposes of coal exploration,

including, but not limited to, to have a significant impact upon land,

air or water resources * * *''

Section 86.133 General Requirements

PADEP proposes to modify subsection (e) to include parameters for

metric tons, and to change the word ``less than'' to ``or less'' and to

change the words ``or more'' to ``more than''. The relevant portion of

the requirement now reads ``if 250 tons(226 metric tons) or less is

removed'', and ``The removal of more than 250 tons (226 metric tons) of

coal * * *''

Section 86.134 Coal Exploration Performance and Design Standards

PADEP proposes to modify subsection (l) by eliminating existing

subsections (2) and (3) that required the person conducting coal

exploration to measure environmental characteristics during the

operations and to limit vehicular traffic and adding new subsection (2)

that states ``Roads used for coal exploration shall comply with the

following''. Existing subsections (4) and (5) are re-numbered as (3)

and (4), existing subsection (6) is eliminated and new subsection (5)

is added as follows: ``All areas disturbed by coal exploration

activities shall be vegetated in a manner that encourages prompt

revegetation and recovery of a diverse, effective and permanent

vegetative cover''. Additionally, existing subsections (7) through (12)

are re-numbered as (6) through (11) respectively.

Section 86.174 Standards for Release of Bonds

PADEP proposes to modify subsection (b)(1) to clarify the standards

for Stage 2 bond release by requiring that topsoil and revegetation be

successfully completed in accordance with the reclamation plan. The

phrase ``and the standards for the success of revegetation are met'' is

eliminated. PADEP also proposes to make a grammatical change to

Subsection (b)(2) by changing the word ``their'' to ``the'' prior to

``requirements of the acts pertaining to contribution of suspended

solids to stream flow''.

Chapter 87, Surface Mining of Coal

Section 87.1 Definitions

PADEP proposes to add subsection (x) ``unmanaged natural habitat'',

which is defined as idle land which does not require a specific

management plan after the reclamation and revegetation have been

accomplished.

Section 87.77 Protection of Public Parks and Historic Places

PADEP proposes to modify subsection (a) by specifying that the

rules pertain to publicly owned parks or historic places that are

listed on the National Register of Historic Places.

Section 87.93 Casing and Sealing of Drilled Holes

PADEP proposes to modify subsection (a)(2) by substituting the word

``minimize'' for the phrase ``prevent to the maximum extent possible''

and adding a metric measurement of 38.1 meters to subsection (e)

pertaining to the radius of the barrier of undisturbed earth around all

oil and gas wells.

PADEP proposes to modify subsection (2)(iii) pertaining to when the

Department may approve lesser distances by deleting the existing

language and adding the following: ``The measures included in the

permit to minimize damage, destruction or disruption of services

pursuant to Sec. 87.173(b) are implemented.

Section 87.97 Topsoil: Removal

PADEP proposes to modify subsection (c) by including metric

measurements of 30.48 centimeters with the 12-inch measurement and to

modify subsection (f) by substituting the word ``topsoil'' for

``subsoil.''

Section 87.101 Hydrologic Balance: General Requirements

PADEP proposes to modify subsection (a) by substituting the word

``minimize'' for the phrase ``prevent to the maximum extent possible''

and by adding a requirement that surface mining activities shall be

planned and conducted to prevent material damage to the hydrologic

balance outside the permit area. PADEP further proposes to add that the

Department may require additional preventative, remedial, or monitoring

measures to assure that material damage to the hydrologic balance

outside the permit area is prevented.

Section 87.106 Hydrologic Balance: Sediment Control Measures

PADEP proposes to modify subsection (l) pertaining to prevention of

contributions of sediment to streamflow or runoff by eliminating the

word ``maximum'' prior to the words ``extent possible''.

PADEP also proposes to modify subsection (3) by changing the

language of the requirement from ``Prevent erosion to the maximum

extent possible'' to ``Minimize erosion to the extent possible.''

Section 87.126 Use of Explosives: Public Notice of Blasting Schedule

PADEP proposes to modify subsection (a) by allowing publication of

the blasting schedule in a newspaper of general circulation up to 30

days before beginning a blasting program instead of the existing 20 day

period.

Section 87.127 Use of Explosives: Surface Blasting Requirements

PADEP proposes to modify subsection (f)(5) by changing the limit

for casting-off flyrock from the ``line of property owned or leased by

the permittee'' to the ``permit boundary''.

Section 87.138 Protection of Fish, Wildlife and Related Environmental

Values

PADEP proposes to modify subsection (a) by adding the phrase ``to

the extent possible'' prior to the phrase ``using the best technology

currently available''. PADEP also proposes to modify

[[Page 70646]]

subsections (a)(1) through (a)(3) by eliminating the word ``prevent''

and substituting the words ``minimize'', ``avoid or minimize'' and

``avoid'' respectively, as they pertain to disturbances.

PADEP also proposes to modify subsection (b) by changing the name

of the Fish Commission to the Fish and Boat Commission.

Section 87.144 Backfilling and Grading: Final Slopes

PADEP proposes to modify subsection (c) by deleting subsections (1)

through (4) enumerating requirements for terraces. PADEP also proposes

to modify subsection (f) by eliminating specific grading, preparation

of overburden, and placement of topsoil requirements pertaining to

placement in a direction other than parallel when parallel placement

creates hazards to equipment operators.

Section 87.146 Regarding or Stabilizing Rills and Gullies

PADEP proposes to eliminate the existing subsection and substitute

the following new subsections:

(a) Exposed surface areas shall be protected and stabilized to

effectively control erosion and air pollution attendant to erosion.

(b) Rills and gullies, which form in areas that have been regraded

and topsoiled and which do one of the following shall be filled,

regraded and otherwise stabilized:

(1) Disrupt the approved postmining land use or the reestablishment

of the vegetative cover.

(2) Cause or contribute to a violation of water quality standards

for receiving streams.

(c) For the areas listed in subsection (b), the topsoil shall be

replaced and the areas shall be reseeded or replanted.

Section 87.159 Postmining Land Use

PADEP proposes to modify subsection (b) by eliminating subsections

(3) and (4) pertaining to land that has received improper management or

was changed within 5 years of the beginning of mining.

PADEP also proposes to add new subsection (3) as follows: ``The

proposed postmining land use is reasonably likely to be achieved which

may be demonstrated by one or more of the following or other similar

criteria'': Criteria currently identified in subsections (3), (4), and

(5) are re-lettered as (i), (ii) and (iii) respectively, under new

subsection (3).

PADEP also proposes to eliminate subsection (6) pertaining to

certification of plans for postmining land use by a registered

professional engineer. Existing subsections (7), (8) and (9) are re-

numbered as (4), (5) and (6), respectively.

Section 87.160 Haul Roads and Access Roads

PADEP proposes to modify subsection (a) by eliminating the phrase

``prevent, to the maximum extent possible'', and substituting the words

``control or prevent'' prior to ``erosion and contributions of sediment

to streams or runoff * * *''.

Section 87.166 Haul Roads and Access Roads: Restoration

PADEP proposes to modify this subsection by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

PADEP also proposes to modify subsection (4) by eliminating the

requirement that roadbeds be plowed. The subsection now reads

``Roadbeds shall be ripped or scarified''.

Section 87.173 Support Facilities and Utility Installations

PADEP proposes to modify subsection (a) by eliminating criteria

from the opening paragraph and deleting subsections (1) and (2). The

criteria to locate, maintain and use buildings is now included in new

subsections (1), (2), (2)(i) and (2)(ii) as follows:

(1) Prevents or controls erosion and siltation, water pollution,

and damage to public or private property.

(2) To the extent possible using the best technology currently

available:

(i) Minimizes damage to fish, wildlife and related environmental

values.

(ii) Minimizes additional contributions of suspended solids to

streamflow or runoff outside the permit area. These contributions may

not be in excess of limitations of State or Federal law.

Section 87.174 Steep Slope Operations

PADEP proposes to eliminate subsection (g) pertaining to

Departmental approval of unprotected drainage channels on backfilled

areas.

Section 87.176 Auger Mining

PADEP proposes to delete subsection (d) pertaining to augering to

the rise. Existing subsection (e) is re-lettered as (d) and further

modified to outline situations where the Department may allow auger

mining in subsections (d)(1) through (d)(4).

Section 87.209 Criteria and Schedule for Release of Bonds on Pollution

Abatement Areas

PADEP proposes to modify subsection (a) by raising the amount of

bond to release from 50% to 60%. PADEP also proposes to modify

subsection (a)(4) to specify that the operator has not caused

degradation of baseline pollution at any time during a period of 6

months prior to request for bond release. PADEP further proposes to

modify subsection (b) by deleting the phrase that allows release of

additional bond up to 35% of the amount of the bond for the authorized

pollution abatement area and substituting the phrase that additional

funds can be released, but that the Department will retain an amount

sufficient to cover the cost to the Department of reestablishing

vegetation if completed by a third party.

PADEP also proposes to modify subsection (b)(3)(ii)(I) by deleting

the phrase ``from the date of the initial bond release under subsection

(a)'' and substituting the phrase ``prior to the date of application

for bond release and until the bond release is approved under

subsection (b) * * *'' as it pertains to the 12 month period of ground

water monitoring that does not show degradation of baseline pollution

load.

PADEP proposes to modify subsection (c)(4) pertaining to the

release of the remaining portion of the bond by deleting the phrase

``which shall be measured from the date of release of bond under

subsection (b).''

Chapter 88, Anthracite Coal

Section 88.1 Definitions

PADEP proposes to add subsection (x) ``unmanaged natural habitat'',

which is defined as idle land which does not require a specific

management plan after the reclamation and revegetation have been

accomplished.

Section 88.56 Protection of Public Parks and Historic Places

PADEP proposes to modify subsection (a) by specifying that the

rules pertain to publicly owned parks or historic places that are

listed on the National Register of Historic Places.

Section 88.83 Sealing of Drilled Holes: General Requirements

PADEP proposes to modify subsection (a)(2) by substituting the word

``minimize'' for the phrase ``prevent to the maximum extent possible''

and adding a metric measurement of 38.1 meters to subsection (e)

pertaining to the radius of the barrier of undisturbed earth around oil

and gas wells.

PADEP proposes to modify subsection (2)(iii) pertaining to when the

Department may approve lesser distances by deleting the existing

language and adding the following: ``The measures included in the

permit to minimize damage, destruction or

[[Page 70647]]

disruption of services are implemented.''

Section 88.91 Hydrologic Balance: General Requirements

PADEP proposes to modify subsection (a) by substituting the word

``minimize'' for the phrase ``prevent to the maximum extent possible''

and by adding a requirement that surface mining activities shall be

planned and conducted to prevent material damage to the hydrologic

balance outside the permit area. PADEP further proposes to add that the

Department may require additional preventative, remedial, or monitoring

measures to assure that material damage to the hydrologic balance

outside the permit area is prevented.

Section 88.96 Hydrologic Balance: Sediment Control Measures

PADEP proposes to modify subsection (l) pertaining to prevention of

contributions of sediment to streamflow or runoff by eliminating the

word ``maximum'' prior to the words ``extent possible''.

PADEP also proposes to modify subsection (3) by changing the

language of the requirement from ``Prevent erosion to the maximum

extent possible'' to ``Minimize erosion to the extent possible.''

Section 88.118 Backfilling and Grading: Final Slopes

PADEP proposes to modify subsection (c) by deleting subsections (1)

through (4) enumerating requirements for terraces. PADEP also proposes

to modify subsection (f) by eliminating specific grading, preparation

of overburden, and placement of topsoil requirements pertaining to

placement in a direction other than parallel when parallel placement

creates hazards to equipment operators.

Section 88.133 Postmining Land Use

PADEP proposes to modify subsection (a) by deleting the reference

to Subchapter E (relating to coal exploration) and adding the reference

to Subchapter F (relating to bonding and insurance requirements).

PADEP also proposes to modify subsection (b) by eliminating

subsections (3) and (4) pertaining to land that has received improper

management or was changed within 5 years of the beginning of mining.

PADEP also proposes to add new subsection (3) as follows: ``The

proposed postmining land use is reasonably likely to be achieved which

may be demonstrated by one or more of the following or other similar

criteria': Criteria currently identified in subsections (3) and (4) are

re-lettered as (i), (ii) respectively under new subsection (3).

PADEP also proposes to eliminate subsection (5) pertaining to

certification of plans for postmining land use by a registered

professional engineer. Existing subsections (6), (7) and (8) are re-

numbered as (4), (5) and (6), respectively.

Section 88.138 Haul Roads and Access Roads: General

PADEP proposes to modify subsection (a) by eliminating the phrase

``prevent, to the maximum extent possible'', and substituting the words

``control or prevent'' prior to ``erosion and contributions of sediment

to streams or runoff * * *''.

Section 88.144 Haul Roads and Access Roads: Restoration

PADEP proposes to modify this subsection by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

Section 88.191 Hydrologic Balance: Sediment Control Measures

PADEP proposes to modify subsection (l) pertaining to prevention of

contributions of sediment to streamflow or runoff by eliminating the

word ``maximum'' prior to the words ``extent possible''.

PADEP also proposes to modify subsection (3) by changing the

requirement from ``Prevent erosion to the maximum extent possible'' to

``Minimize erosion to the extent possible.''

Section 88.221 Postmining Land Use

PADEP proposes to modify subsection (b) by eliminating subsections

(3) and (4) pertaining to land that has received improper management or

was changed within 5 years of the beginning of mining. PADEP also

proposes to add new subsection (3) as follows: ``The proposed

postmining land use is reasonably likely to be achieved which may be

demonstrated by one or more of the following or other similar

criteria'': Criteria currently identified in subsections (3) and (4)

are re-lettered as (i) and (ii) respectively under new subsection (3).

PADEP also proposes to eliminate subsection (5) pertaining to

certification of plans for postmining land use by a registered

professional engineer. Existing subsections (6), (7) and (8) are

renumbered as (4), (5) and (6), respectively.

Section 88.231 Haul Roads and Access Roads: General

PADEP proposes to modify subsection (a) by eliminating the phrase

``prevent, to the maximum extent possible'', and substituting the words

``control or prevent'' prior to ``erosion and contributions of sediment

to streams or runoff . . .''.

Section 88.237 Haul Roads and Access Roads: Restoration

PADEP proposes to modify this subsection by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

Section 88.283 Sealing of Drilled Holes: General Requirements

PADEP proposes to modify subsection (e) by adding a metric

measurement of 38.1 meters pertaining to the radius of the barrier of

undisturbed earth around all oil and gas wells.

PADEP also proposes to modify subsection (2)(iii) pertaining to

approval of lesser distances by deleting the existing language and

adding the following: ``The measures included in the permit to minimize

damage, destruction or disruption of services are implemented.''

Section 88.291 Hydrologic Balance: General Requirements

PADEP proposes to modify subsection (a) by substituting the word

``minimize'' for the phrase ``prevent to the maximum extent possible''

and by adding a requirement that surface mining activities shall be

planned and conducted to prevent material damage to the hydrologic

balance outside the permit area. PADEP further proposes to add that the

Department may require additional preventative, remedial, or monitoring

measures to assure that material damage to the hydrologic balance

outside the permit area is prevented.

Section 88.296 Hydrologic Balance: Sediment Control Measures

PADEP proposes to modify subsection (l) pertaining to prevention of

contributions of sediment to streamflow or runoff by eliminating the

word ``maximum'' prior to the words ``extent possible''.

Section 88.334 Postdisposal Land Use

PADEP proposes to modify subsection (a) by changing the reference

from ``this section (bonds)'' to ``Chapter 86, Subchapter F, (relating

to bonding and insurance requirements)''.

PADEP also proposes to modify subsection (b) by eliminating

subsections (3) and (4) pertaining to

[[Page 70648]]

land that has received improper management or was changed within 5

years of the beginning of mining.

PADEP also proposes to modify subsection (c)(1) by deleting the

reference to ``surface mining'' and substituting ``coal refuse

disposal''.

PADEP also proposes to add new subsection (3) as follows: ``The

proposed postmining land use is reasonably likely to be achieved which

may be demonstrated by one or more of the following or other similar

criteria': Criteria currently identified in subsections (3) and (4) are

re-lettered as (i) and (ii) respectively, under new subsection (3), and

(i) is further changed by deleting the reference to ``surface mining''

and substituting ``coal refuse disposal''.

PADEP also proposes to eliminate subsection (5) pertaining to

certification of plans for postdisposal land use by a registered

professional engineer. Existing subsections (6), (7), and (8) are re-

numbered as (4), (5) and (6), respectively.

Section 88.335 Haul Roads and Access Roads: General

PADEP proposes to modify subsection (a) by eliminating the phrase

``prevent, to the maximum extent possible'', and substituting the words

``control or prevent'' prior to ``erosion and contributions of sediment

to streams or runoff . . .''.

Section 88.341 Haul Roads and Access Roads: Restoration

PADEP proposes to modify this subsection by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

Section 88.492 Minimum Requirements for Reclamation and Operation Plan

PADEP proposes to modify subsection (f)(1) by specifying that the

rules pertain to publicly owned parks or historic places that are

listed on the National Register of Historic Places.

Section 88.509 Criteria and Schedule For Release of Bonds on Pollution

Abatement Areas.

PADEP proposes to modify subsection (a) by raising the amount of

bond to release from 50% to 60%. PADEP also proposes to modify

subsection (a)(4) to specify that the operator has not caused

degradation of baseline pollution at any time during a period of 6

months prior to request for bond release. PADEP further proposes to

modify subsection (b) by deleting the phrase that allows release of

additional bond up to 35% of the amount of the bond for the authorized

pollution abatement area and substituting the phrase that additional

funds can be released, but that the Department will retain an amount

sufficient to cover the cost to the Department of reestablishing

vegetation if completed by a third party.

PADEP also proposes to modify subsection (b)(3)(ii)(I) by deleting

the phrase ``from the date of the initial bond release under subsection

(a)'' and substituting the phrase ``prior to the date of application

for bond release and until the bond release is approved under

subsection (b)'' as it pertains to the 12 month period of ground water

monitoring that does not show degradation of baseline pollution load.

PADEP proposes to modify subsection (c)(4) pertaining to the

release of the remaining portion of the bond by deleting the phrase

``which shall be measured from the date of release of bond under

subsection (b).''

Chapter 89, Underground Mining of Coal and Coal Preparation Facilities

Section 89.38 Archaeological and Historical Resources and Public Parks

PADEP proposes to re-title this section as Archaeological and

historical resources, public parks and publicly owned parks.

PADEP proposes to modify subsection (b) by specifying that the

rules pertain to publicly owned parks or historic places that are

listed on the National Register of Historic Places.

Section 89.65 Protection of Fish, Wildlife and Related Environmental

Values

PADEP proposes to modify subsection (a) by adding the phrase ``to

the extent possible'' prior to the phrase ``using the best technology

currently available'' and by changing the word ``prevent'' to

``minimize'' prior to the word ``disturbances.''

PADEP also proposes to modify subsections (d)(1) and (d)(2) by

eliminating the word ``prevent'' and substituting the words ``avoid or

minimize'' and ``avoid'' respectively, as they pertain to disturbances.

Subsection (d)(2) is further modified by requiring an operator to avoid

disturbances to enhance or restore habitats of unusually high value for

fish and wildlife.

Section 89.67 Support Facilities

PADEP proposes to modify subsection (a) by eliminating criteria

from the opening paragraph and deleting subsections (1) and (2). The

criteria to locate, maintain and use buildings is now included in new

subsections (1), (2), (2)(i) and (2)(ii) as follows:

(1) Prevents or controls erosion and siltation, water pollution,

and damage to public or private property.

(2) To the extent possible using the best technology currently

available:

(i) Minimizes damage to fish, wildlife and related environmental

values.

(ii) Minimizes additional contributions of suspended solids to

streamflow or runoff outside the permit area. These contributions may

not be in excess of limitations of State or Federal law.

Section 89.82 Protection of Fish, Wildlife and Related Environmental

Values

PADEP proposes to modify subsections (a) and (c) by adding the

phrase ``to the extent possible'' prior to the phrase ``using the best

technology currently available'' and by deleting the phrase ``of the

reclamation activities'' in subsection (a).

PADEP also proposes to modify subsections (b) and (e) by changing

the name of the Fish Commission to the Fish and Boat Commission.

Section 89.87 Regrading or Stabilizing Rills and Gullies

PADEP proposes to eliminate the existing subsections and substitute

the following new subsections:

(a) Exposed surface areas shall be protected and stabilized to

effectively control erosion and air pollution attendant to erosion.

(b) Rills and gullies, which form in areas that have been regraded

and topsoiled and which do one of the following shall be filled,

regraded and otherwise stabilized:

(1) Disrupt the approved postmining land use or the reestablishment

of the vegetative cover.

(2) Cause or contribute to a violation of water quality standards

for receiving streams.

(c) For the areas listed in subsection (b), the topsoil shall be

replaced and the areas shall be reseeded or replanted.

Section 89.88 Postmining Land Use

PADEP proposes to modify subsection (b) by eliminating subsections

(2) and (3) pertaining to land that has received improper management or

was changed within 5 years of the beginning of mining.

PADEP also proposes to add new subsection (2) as follows: The

proposed postmining land use is reasonably likely to be achieved which

may be demonstrated by one or more of the following or other similar

criteria: Criteria currently identified in subsection (2) is now

included in subsection (i).

[[Page 70649]]

PADEP also proposes to eliminate subsection (3) pertaining to

certification of plans for postmining land use by a registered

professional engineer. Existing subsections (4), (5), (6) and (7) are

renumbered as (3), (4), (5) and (6), respectively.

Section 89.90 Restoration of Roads

PADEP proposes to modify subsection (a) by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

PADEP also proposes to modify subsection (4) by eliminating the

requirement that roadbeds be plowed. The subsection now reads

``Roadbeds shall be ripped or scarified''.

Chapter 90, Coal Refuse Disposal

Section 90.1 Definitions

PADEP proposes to add subsection (x) ``unmanaged natural habitat'',

which is defined as idle land which does not require a specific

management plan after the reclamation and revegetation have been

accomplished.

Section 90.40 Protection of Public Parks and Historic Places

PADEP proposes to modify subsection (a) by specifying that the

rules pertain to publicly owned parks or historic places that are

listed on the National Register of Historic Places.

PADEP also proposes to modify subsections (a)(1) and (a)(2) by

deleting the word ``to'' before ``prevent'' and ``minimize''

respectively.

Section 90.93 Casing and Sealing of Drilled Holes and Underground

Workings

PADEP proposes to modify subsection (d) by deleting the reference

to the requirements of the Gas Operations, Well-Drilling, Petroleum and

Coal Mining Act (52 P.S. Sec. 2101-2602) and adding a reference to the

Oil and Gas Act (58 P.S. Secs. 601.101-601.605).

PADEP also proposes to add a metric measurement of 38.1 meters to

subsection (e) pertaining to the radius of the barrier of undisturbed

earth around all oil and gas wells.

PADEP further proposes to modify subsection (2)(iii) pertaining to

when the Department may approve lesser distances by deleting the

existing language and adding the following: ``The measures included in

the permit to minimize damage, destruction or disruption of services

pursuant to Sec. 90.147(b) are implemented.

Section 90.97 Topsoil: Removal

PADEP proposes to modify subsection (c) by including metric

measurements of 30.48 centimeters with the 12-inch measurement and to

modify subsection (f) by substituting the word ``topsoil'' for

``subsoil.''

Section 90.101 Hydrologic Balance: General Requirements

PADEP proposes to modify subsection (a) by substituting the words

``minimize disturbances'' for the phrase ``prevent to the maximum

extent possible, changes'' and by adding a requirement that surface

mining activities shall be planned and conducted to prevent material

damage to the hydrologic balance outside the permit area. PADEP further

proposes to add that the Department may require additional

preventative, remedial, or monitoring measures to assure that material

damage to the hydrologic balance outside the permit area is prevented.

Section 90.106 Hydrologic Balance: Erosion and Sedimentation Control

PADEP proposes to modify subsection (a)(l) pertaining to prevention

of contributions of sediment to streamflow or runoff by eliminating the

word ``maximum'' prior to the words ``extent possible''.

PADEP also proposes to modify subsection (a)(3) by changing the

requirement from ``Prevent erosion to the maximum extent possible'' to

``Minimize erosion to the extent possible.''

Section 90.134 Haul Roads and Access Roads: General

PADEP proposes to modify subsection (a) by eliminating the phrase

``minimize erosion and to prevent'', and substituting the words

``control or prevent:'' prior to ``contributions of sediment to streams

or runoff . . .''.

Section 90.140 Haul Roads and Access Roads: Restoration

PADEP proposes to modify this subsection by substituting the phrase

``as soon as practicable'' for the word ``immediately''.

PADEP also proposes to modify subsection (4) by eliminating the

requirement that roadbeds be plowed. The subsection now reads

``Roadbeds shall be ripped or scarificed''.

Section 90.147 Support Facilities and Utility Installations

PADEP proposes to modify subsection (a) by eliminating criteria

from the opening paragraph and deleting subsections (1) and (2). The

criteria to locate, maintain and use buildings is now included in new

subsections (1), (2), (2)(i) and (2)(ii) as follows:

(1) Prevents or controls erosion and siltation, water pollution,

and damage to public or private property.

(2) To the extent possible using the best technology currently

available:

(i) Minimizes damage to fish, wildlife and related environmental

values.

(ii) Minimizes additional contributions of suspended solids to

streamflow or runoff outside the permit area. These contributions may

not be in excess of limitations of State or Federal law.

Section 90.150 Protection of Fish, Wildlife and Related Environmental

Values

PADEP proposes to modify subsection (a) by adding the phrase ``to

the extent possible'' prior to the phrase ``using the best technology

currently available''.

PADEP also proposes to modify subsections (a)(1) through (a)(3) by

eliminating the word ``prevent'' at the beginning of each and

substituting the words ``minimize'', ``Locate and operate haul and

access roads to avoid or minimize'' and ``avoid'' respectively, as they

pertain to disturbances in each subsection. Subsection (a)(3) is

further modified by requiring an operator to avoid disturbances to

enhance or restore habitats of unusually high value for fish and

wildlife.

PADEP proposes to modify subsections (b) and (d) by changing the

name of the Fish Commission to the Fish and Boat Commission.

Section 90.166 Postdisposal Land Use

PADEP proposes to modify subsection (a) by changing the reference

from ``Subchapter E (relating to coal exploration)'' to ``Subchapter F

(relating to bonding and insurance requirements)''.

PADEP also proposes to modify subsection (b) by eliminating

subsections (3) and (4) pertaining to land that has received improper

management or was changed within 5 years of the beginning of mining.

PADEP also proposes to add new subsection (3) as follows: ``The

proposed postmining land use is reasonably likely to be achieved which

may be demonstrated by one or more of the following or other similar

criteria'': Criteria currently identified in subsections (3), (4) and

(5) are re-lettered as (i), (ii) and (iii) respectively under new

subsection (3).

PADEP also proposes to eliminate subsection (6) pertaining to

certification of plans for postdisposal land use by a registered

professional engineer. Existing subsections (7), (8), and (9) are re-

numbered as (4), (5) and (6), respectively.

[[Page 70650]]

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Pennsylvania program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Harrisburg Field Office will

not necessarily be considered in the final rulemaking or included in

the Administrative Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by close of

business on January 3, 2000. If no one requests an opportunity to

comment at a public hearing, the hearing will not be held.

If a public hearing is held, it will continue on the specified date

until all persons scheduled to comment have been heard. Persons in the

audience who have not been scheduled to comment and who wish to do so

will be heard following those scheduled. The hearing will end after all

persons who desire to comment have been heard. Filing of a written

statement at the time of the hearing is requested as it will greatly

assist the transcriber.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the Harrisburg Field Office by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings will be open to the public and, if possible, notices of

the meetings will be posted in advance at the locations listed above

under ADDRESSES. A summary of meeting will be included in the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed 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 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

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 in the analyses 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.

Tim L. Dieringer,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 99-32740 Filed 12-16-99; 8:45 am]

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