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Privacy Notice

OSM conducted a review of the Pennsylvania Department of Environmental Protection (PADEP) technical guidance documents (TGD) to determine whether the guidance documents properly implement the approved regulatory program statutes and regulations, and approved program policies. The study was developed as part of the Harrisburg Field Office work plan for 1999. The evaluation consisted of detailed reviews of 11 recently adopted TGD’s.

• Several TGD’s were submitted by PADEP and included in the approved primacy program in lieu of regulations. This study identified that the disclaimers associated with those TGD’s provide discretion in applying regulatory provisions that, by virtue of their incorporation the in approved program, are mandatory.
• Certain TGDs include provisions that are less effective than the original policies submitted and approved as program amendments and incorporated into the approved program (Samples Nos. 1, 2 and 11).
• PADEP has developed guidance implementing statutes and regulations that are not part of the approved program, contrary to Federal requirements imposed at 30 CFR 732.17(b)(3). (Samples Nos. 6,7. 9 and 10).

• PADEP should review and, to the extent necessary, modify the disclaimers of those TGD’s that include provisions incorporated into the approved program, to ensure discretion is not inappropriately extended where a mandatory standard is required.
• PADEP should follow the program amendment process in making changes to policies that have been incorporated in the approved primacy program.
• PADEP should implement new or revised provisions in conformance with 30 CFR 732.17(b)(3).

PADEP publishes technical guidance documents (TGDs) to implement and administer the regulatory and abandoned mine land programs approved under the Commonwealth’s primacy program (originally approved on July 30, 1982). This internal guidance was formerly known as the Program Guidance Manual or PGMs. Since primacy, only several of these guidance documents have been included in the approved program, and only in those cases where PADEP has chosen to submit policy (guidance) in lieu of regulations to satisfy a SMCRA-required program provision. The vast majority of the guidance documents simply describe how PADEP has chosen to implement and administer provisions that are already contained in the approved program. A guidance document setting forth a description of how PADEP has exercised its administrative discretion to implement already approved provisions, would not normally be required to be incorporated into the primacy program. However, where the guidance is submitted (in lieu of regulations) to satisfy a SMCRA-required State program provision, then such provisions must be binding on the State. Each time OSM accepted a policy in lieu of regulation, the Federal Register approval notice specifically set forth the mandatory standing given to that policy provision. Thus, under the approved program, these policy provisions have the same standing as regulations or law and there is not the same level of discretion in implementing those provisions as there may be with other guidance.

Shortly after primacy, PADEP developed and submitted policies covering inspection and enforcement, civil penalties, and citizen complaints to OSM as formal program amendments. Later PADEP submitted a TGD as a program amendment (reclamation in lieu of cash payment for civil penalties). The policies and the TGD were approved by OSM and thereby became part of the approved program and, as such, carry the same standing in the approved program as regulations. Under the terms of the Pennsylvania’s approved regulatory program, statutes, regulations, policies and TGD that set legal requirements cannot be implemented or modified except through the formal program amendment process.

This review focused on 1) those TGDs associated with policies and technical guidance that PADEP had, in fact, submit to OSM, in lieu of Statute or regulation through the program amendment process, , and 2) guidance implementing statutes and regulations not yet approved by OSM.

The two primary findings from this review are 1) PADEP’s implementation of rules and policies before OSM’s approval of the rules as part of the Approved State Program; and 2) the use of a disclaimer on portions of TGD’s that are approved as part of the Program.

In four of the eleven TGD’s reviewed for this study, provisions of the TGD were implementing State statutes and regulations that have not been approved by OSM. To the extent that PADEP implements new or revised provisions, subject to or covered under the approved program, prior to

OSM approval, such implementation conflicts with 30 CFR 732.17(g) which requires that,

"Whenever changes to law or regulations that make up the approved State program are proposed by the State, the State shall immediately submit the proposed changes to the Director as an amendment. No such change to laws aor regulations shall take effect for purposes for purposes of a State program until approved as an amendment."

PADEP includes a disclaimer on every TGD that states the following:

"The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect more stringent regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is no intent on the part of the Department to give these rules that weight or deference. This document establishes the framework, within which the Department will exercise its administrative discretion in the future. The Department reserves the discretion to deviate from this policy statement if circumstances warrant."

This disclaimer establishes the use of such provisions as an exercise of administrative discretion. This would not be appropriate for specific provisions covered by the TGD that are approved by OSM as part of the State program. As a condition of approval, OSM required that any policy submitted in lieu of regulations, be applied subject to the same standard application as regulations; that is, there is not administrative discretion in the application of specific provisions submitted in lieu of regulation.

TGD samples were selected from PADEP list of TGDs that reside on the PADEP website. The list was compared with hard copy TGDs resident in the Harrisburg Field Office. TGD sample selections were based on those TGD that implement approved program policy and regulations, as well as, statutes and regulations that PADEP has recently submitted for OSM’s consideration.

PADEP Technical Guidance Documents can be found on the Pennsylvania website at:

Title: Inspections

Number: 562-3000-102: August 29, 1997

Background: PADEP submitted Program Amendment package, PA 482, covering Inspections and Enforcement Policy, Civil Penalty program and Citizen Complaint Procedures on January 17, 1984. OSM published a final rule, approving the amendment, in the Federal Register, 49 FR 10253-10258, on March 20, 1984. The inspection frequency requirements in the Inspection and Enforcement policy requires four complete inspections and eight partial inspections for permits in an active status and four complete inspections for permits in an inactive status. Inactive status means that Stage II bonds have been released and the permit is in the Stage III or the liability period.

Issues:

The technical guidance provides exceptions to required inspection in cases where time is needed to conduct more frequent inspections at active coal mining operations and where the sites receiving reduced inspections are inactive and in good condition.

The disclaimer (See discussion in "Summary Findings" above.) renders the guidance less effective than the approved program Inspection and Enforcement Policy.

Title: Compliance/enforcement Procedures.

Number: 562-4100-301: November 30, 1997

Background: PADEP submitted Program Amendment package, PA 482, covering Inspections and Enforcement Policy, Civil Penalty program and Citizen Complaint Procedures on January 17, 1984. OSM published a final rule, approving the amendment, in the Federal Register, 49 FR 10253-10258, on March 20, 1984.

Section 86.211 (Enforcement-general) as amended by the program amendment process.

Issues:

The disclaimer renders the guidance less effective than the approved program Inspection and Enforcement Policy

The 60 days maximum abatement period allowed for an NOV under section IIA,5 (Extension of Compliance Dates) exceeds the 35 day maximum allowed under PA 482.

Title: Alternative Enforcement

Number: 562-4100-307 November 15, 1997

Background: PADEP submitted Program Amendment package, PA 482, covering Inspections and Enforcement Policy, Civil Penalty program and Citizen Complaint Procedures on January 17, 1984. OSM published a final rule, approving the amendment, in the Federal Register, 49 CFR 10253-10258, on March 20, 1984.

Issues: None.

Title: Reclamation in Lieu of Cash Payment for Civil Penalties

Number: 562-4180-309 May 30, 1997

Authority: Approved policy PGM.

Background: PADEP submitted PGM Section I, Part 3 Subpart 9 with an effective date of July 1, 1986 as program amendment PA 609 on August 21, 1986, The proposal deals with a civil penalty option of performing reclamation instead of cash payment to satisfy civil penalty debt. OSM identified programmatic issues during its review. Consequently, PADEP revised the PGM on July 26, 1988, and submitted the revision as program amendment PA 698. OSM approved PA 698 in final rulemaking ( Federal Register 54 FR 40303-40306, November 3, 1989). In the preamble of the final rule OSM stated:

The reclamation standards must conform to the to paragraph H that states: "...reclamation work must conform to the standards and contract specifications applicable to reclamation projects approved under Pennsylvania’s Abandoned Mine ;and Reclamation Program." In other words PADEP is adopting the same reclamation standards as applied to all other abandoned mine land reclamation projects conducted by the State. Also, coal removal is prohibited.

Operators that fail to perform the required reclamation will be subject to the civil penalty due.

Issues: The disclaimer on the first page of the TGD is not acceptable because the original PGM that it replaces is an approved program document. Consequently, the revised TGD must have the same legal weight as approved regulations.

Title: Civil Penalty Assessment

Number: 562-4180-306 October 31, 1997

Background: PADEP submitted Program Amendment package, PA 482, covering Inspections and Enforcement Policy, Civil Penalty program and Citizen Complaint Procedures on January 17, 1984. OSM published a final rule, approving the amendment, in the Federal Register, 49 CFR 10253-10258, on March 20, 1984.

Issues: Note that the $1,100 high limit for discretionary penalties under Section VI (Discretionary Penalties) is not yet approved, but is included in Program Amendment Pa 845.02, November 1, 1999. The current approved high limit is $1,000.

The most significant issue is the implementation of statutes and regulations before they are incorporated into the approved program.

Title: Bond Forfeiture.

Number: 562-4170-308 May 1, 1997

Background:

Issues: None.

Title: Surety Reclamation of Bond Forfeiture Sites

Number: 562-2504-312 December 31, 1997

Background:

The Federal regulations dealing with surety reclamation at forfeited sites are found at 30 CFR 800.50 (Forfeiture of bonds). Section 800.50(a)(2)(ii) provides for surety reclamation, but surety liability cannot be released until successful completion of all reclamation under the terms of the permit, including applicable liability periods (phase I, II and III) of § 800.13 (Period of liability). Application of this provision in a bond pool state, such as Pennsylvania, frequently results in the pool assuming the liability for the 5-year period and pollutional discharges.

Issues: Long-term treatment of the post-mining pollutional discharges is optional under the provisions of the guidance.

Title: Water Supply Replacement and Permitting

Number: .563-2112-605 December 31, 1998, as amended on July 19, 1999 (technical change on pages 15 and 25)

Background: The Pennsylvania Surface Mining Conservation and Reclamation Act was amended by Act 173 and later by Act 43. Act 173 was enacted on December 18, 1992 and later amended by Act 43 on May 22, 1996. PADEP divided the statutory provisions into rulemaking packages. The largest package is the proposed rules that Pennsylvania published in the Pennsylvania Bulletin at 25 Pa. B. 5885-5903, on December 16, 1995 (PA 854.00) and submitted the proposed rules as to OSM as an informal amendment. These proposed rules covered passive treatment of post-mining pollutional discharges, alternative affluent limit standards, bonding and the release of performance bonds after trust funds are established. PADEP published the final rules in 27 Pa. B., 6041-6061, on November 15, 1997. The final rules deleted the trust fund provisions for post mining discharges.

A second rulemaking package (PA-840.00) was published as a final rule (26 Pa. B., 4181-4193) on August 24, 1996. The rule provides for a remining and incentive program to encourage reclamation of previously mined sites by active operators.

A third package under Act 173/43 ( AML No.2) is an amendment to the PADEP Abandoned Mine Land Reclamation Plan. AML No. 2 was submitted as program amendment PA 855.00. The final rule (PA 855.20-64 FR 30387-30388, June 8, 1999) approved the amendment and removed all conditions imposed for deficiencies identified in the approval process. The approval makes it clear that all contracts, including no-cost contracts, must comply with the requirements of Subchapter R, Chapter VII of the Federal regulations, even when the projects receives state financing, but does not receive Federal Funding.

A fourth rulemaking package implementing Act 173/43 under Section 4(a)(2)C (52 P.S. 1396.4(a)(2)C) dealing with vegetation on remined sites; and Section 4.2(f)(1) (52 P.S. §1396.4b(f)(1) and Section 4.2(f)(2) (52 PS. §1396.4b(f)(2) dealing with water supply replacement PADEP published the final rule at 28 Pa.B., 2215-2224, May 9 1998 (PA 850.01). The final rule is part of PA 853.01.

On December 18, 1998, PADEP submitted parts of Act 173 as modified by Act 43 and select implementing regulations as a formal program amendment (PA-853.01). The amendment includes water replacement. The amendment also includes select statutes of Act 173/43 and implementing regulations. These provisions cover passive treatment, trust funds and release of performance bonds based on alternative treatment of long-term pollutional discharges. OSM separated the program amendment provision into two categories (Priority review and regular review). OSM completed the priority review and sent its first issue letter (PA 853.14) PADEP on September 22, 1999. The regular review will include water replacement statutes and regulations.

Issues: The issue is PADEP practice of implementing statues and regulations before the respective statues and/or regulations are first approved by OSM. Certain statutory provisions and regulations included in the regular review of PA 853.01 are implemented in the TGD.

Title: Underground Mining-Delineating Zones for Public Water Supplies.

Number: 563-2112-657 October 15, 1997

Background: Act 54 was enacted on June 20, 1994, effective August 20, 1994. The TGD provides the methodology for protecting groundwater supplies from dewatering by underground mining.

Issues: None.

Title: Water Supply Replacement and Subsidence Damage Repair Under Act 54 Amendments to the Bituminous Mine Subsidence and Land Conservation Act

Number: 853-3900-404 November 7,1997

Background: Act 54 was enacted on June 22, 1994, effective August 20, 1994. The TGD 563-3900-404 (Section I Part 04, Subpart 04) was issued on September 19, 1994. The TGD was developed to provide guidance to field staff for implementation of Act 54 and to address PADEP actions in relation to the Federal Energy Policy Act. The TGD was replaced by the November 7, 1997 revision that is similar to the original guidance, except for the TGD format. The November revision was rescinded on June 2, 1997, effective June 13, 1998. Note that the recission is dated June 2, 1997. This June 2, 1997 date (PADEP-Miller) is incorrect. The correct date is June 2, 1998.

Issues: No issues, this TGD was rescinded by PADEP. The issue was PADEP practice of implementing statutes and regulations before the respective statues and/or regulations are approved by OSM and incorporated into the approved program. PADEP submitted Act 54 and implementing regulations to OSM as a program amendment, PA-841.07,.on July 29, 1998. OSM sent issue letter (PA 841.32) to PADEP on June 21, 1999. OSM is awaiting comments as of November 8, 1999. Certain provisions in the issue letter are also in the TGD.

Title: Bond Adjustment/Release for Post-mining Discharges

Number: 563-2504-450 September 29, 1997

Authority: Act 173 as amended by Act 43 amends the Surface Mining Conservation and Reclamation Act

Background: The Pennsylvania Surface Mining Conservation and Reclamation Act was amended by Act 173 and later by Act 43. Act 173 was enacted on December 18, 1992 and later amended by Act 43 on May 22, 1996. Pennsylvania published proposed rules in the Pennsylvania Bulletin at 25 Pa. B. 5885-5903, on December 16, 1995 (PA 854.00) and submitted the proposed rules as to OSM as an informal amendment. The proposed rules covered passive treatment of past mining pollutional discharges, alternative affluent limit standards and the release of performance bonds after trust funds are established. PADEP published the final rules in 27 Pa. B., 6041-6061, on November 15, 1997. The final rules deleted the trust fund provisions. On December 18, 1998, PADEP submitted parts of Act 173 as modified by Act 43 and select implementing regulations as a formal program amendment (PA-853.01). The amendment includes select statutes of Act 173/43 and implementing regulations. These provisions cover passive treatment, trust funds and release of performance bonds based on alternative treatment of long term pollutional discharges. OSM separated the program amendment provision into two categories (Priority review and regular review). OSM completed the priority review and sent its first issue letter (PA 853.14) on September 22, 1999.

Issues: The issue is PADEP practice of implementing statues and regulations before the respective statues and/or regulations are approved by OSM and incorporated into the approved program.

Certain provisions in the issue letter are also in the TGD.

Sample No. 11

Title: Citizens’ Requests, Receiving, Tracking, Investigating, Appealing and filing.

Number: 562-3900-402 November 30, 1998 as modified on July 2, 1999 to provide for non coal mining.

Background: PADEP submitted Program Amendment package, PA 482, covering Inspections and Enforcement Policy, Civil Penalty program and Citizen Complaint Procedures on January 17, 1984. OSM published a final rule, approving the amendment, in the Federal Register, 49 FR 10253-10258, on March 20, 1984.

Issues:

The disclaimer on the first page of the TGD renders portions of the approved program enforcement provisions descretionary and is, thereby, less effective than the approved program document.

The revised PGM does not include the ten and 15 day notification periods that are in the approved program, nor the three day acknowledgment letterof the request for review of PADEP actions.