[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Proposed Rules]
[Pages 72297-72300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33462]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-128-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.

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

SUMMARY: OSM is announcing the receipt of a proposed amendment to the 
Pennsylvania Regulatory Program (hereinafter referred to as the 
Pennsylvania program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA), 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 following rulemaking:
    Coal Mining--Areas Unsuitable for Mining, Pennsylvania Bulletin, 
Vol. 29, No. 41, October 9, 1999.

DATES: Written comments must be received by 4:00 p.m., on January 26, 
2000. If requested, a public hearing on the proposed amendment will be 
held on January 21, 2000. Requests to speak at the hearing must be 
received by 4:00 p.m., on January 11, 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 meeting 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, 
415 Market Street, Harrisburg, Pennsylvania 17101, Telephone: (717) 
782-4036.
    Pennsylvania Department of Environmental Protection, Bureau of 
Mining and Reclamation, Rachel Carson State Office Building, Post 
Office Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717) 
787-5103.
    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 Pennsylvania program 
amendments are identified at 30 CFR 938.15.

II. Discussion of the Proposed Amendment

    By letter dated November 22, 1999 (Administrative Record No. PA-
861.03, the Pennsylvania Department of Environmental Protection (PADEP) 
submitted a proposed amendment to its program regarding rules related 
to Areas Unsuitable for Mining 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.
    The changes proposed by PADEP in this amendment apply to the 
following parts of the Pennsylvania program: 25

[[Page 72298]]

PA Code 86.1, 86.101-86.121, and 86.123-86.130. These changes are 
summarized below. Revisions concerning nonsubstantive wording, format, 
or organizational changes will not be described in this notice.
    1. In 25 PA Code 86.1 (definitions), subsections (i) through (v) 
which formally defined Valid Existing Rights have been deleted and 
replaced by the following: ``Rights which exist under the definition of 
`valid existing rights' in 30 CFR Section 761.5 (relating to areas 
unsuitable for mining).'' The purpose of this change is to make this 
section more consistent with the Federal regulations at 30 CFR 761.5.
    2. In 25 PA Code 86.101 (definitions), the amendment revises the 
definitions of the following terms: fragile lands; historic lands; 
public building; public park; renewable resource lands; and significant 
recreational, timber, economic or other values incompatible with 
surface mining operations. The objectives of the revisions are 
consistency with the Federal regulations (at 30 CFR 700.5, 761.5, and 
762.5) and, in the case of fragile lands, consistency with Pennsylvania 
SMCRA, Section 4.5. Specific revisions include the following:
    In the definition of fragile lands, ``significantly'' is inserted 
in front of the word, ``damaged.'' At the end of the subsection, the 
amendment deletes the following: ``* * * and buffer zones adjacent to 
the boundaries of areas where surface mining operations are prohibited 
under section 4.5(h) of the Surface Mining Conservation and Reclamation 
Act (52 P.S. Sec. 1396.4e(h)).''
    In the definition of historic lands, the following is deleted: 
``Historic or cultural districts, places, structures or objects, 
including archaeological and paleontological sites, National Historic 
Landmark sites, sites listed * * *''. This is replaced by: ``Areas 
containing historic, cultural or scientific resources. Examples of 
historic lands include archaeological sites, properties listed on * * 
*''.
    In the definition of public building, the following is deleted: ``* 
* * by a public agency or used principally * * *''. This is replaced by 
``* * * or leased and principally used by a government agency * * *''
    In the definition of public park, ``* * * or portion of an area * * 
*'' is inserted after the word, ``area'' at the beginning of the 
subsection. In the same sentence, the word ``primarily,'' is inserted 
before ``* * * for public recreational use * * *'' The following final 
sentence has been deleted: ``For the purposes of this subchapter, local 
agency shall include nonprofit organizations owning lands which are 
dedicated or designated for public recreational use.''
    The definition of renewable resource lands has been changed to: 
``Areas which contribute significantly to the long-range productivity 
of water supply or of food or fiber products, such lands to include 
aquifers and aquifer recharge areas.''
    In the definition of surface mining operations, the following 
phrase at the end of the subsection has been deleted: ``* * * and 
activities involved in or related to underground coal mining which are 
conducted on the surface of the land, produce changes in the land 
surface, or disturbs the surface, air or water resources of the area.''
    3. 25 PA Code 86.102 (areas where mining is prohibited or limited) 
was revised to improve consistency with the Federal regulations (at 30 
CFR 761.11 and 761.12), to recognize the role of the newly formed 
Department of Conservation and Natural Resources, to clarify a legal 
citation, and insert metric equivalents for barrier distances.
    In subsection (1), following the citation, ``(16 U.S.C.A. 
1276(a)),'' the following has been inserted: ``* * * or study rivers or 
study river corridors as established in guidelines under the act * * 
*''. In subsection (3), the following phrase after the word, 
``included,'' has been deleted: ``* * * on or eligible for inclusion * 
* *''. The first part of the subsection now reads: ``Which will 
adversely affect a publicly-owned park or a place included on the 
National Register of Historic Places * * *''. In subsection (4), ``* * 
* the Department of Conservation and Natural Resources and * * *'' is 
inserted before the words, ``the Department.'' In subsection (5), ``* * 
* Department of Conservation and Natural Resources and the * * *'' is 
inserted before the word, ``Department.''
    Subsection (9) has been revised to read as follows:
    (9) Within 300 feet (91.44 meters) measured horizontally from an 
occupied dwelling, unless one or more of the following exist:
    (i) The only part of the surface mining operations which is within 
300 feet (91.44 meters) of the dwelling is a haul road or access road 
which connects with an existing public road on the side of the public 
road opposite to the dwelling.
    (ii) The owner thereof has provided a written waiver by lease, deed 
or other conveyance clarifying that the owner and signatory had the 
legal right to deny surface mining operations and knowingly waived that 
right and consented to surface mining operations closer than 300 feet 
(91.44 meters) of the dwelling as specified.
    (A) A valid waiver shall remain in effect against subsequent owners 
who had actual or constructive knowledge of the existing waiver at the 
time of purchase.
    (B) Subsequent owners shall be deemed to have constructive 
knowledge if the waiver has been properly filed in public property 
records or if the surface mining operations have proceeded to within 
the 300 foot (91.44 meters) limit prior to the date of purchase.
    (iii) A new waiver is not required if the applicant for a permit 
had obtained a valid waiver prior to August 3, 1977, from the owner of 
an occupied dwelling to mine within 300 feet (91.44 meters) of such 
dwelling.
    4. Parts of 25 PA Code 86.103 (procedures) have been revised to 
increase the clarity of the language and to add metric equivalents. 
Subsection (d) has been revised to read as follows:
    (d) When the proposed surface mining operations would be conducted 
within 300 feet (91.44 meters) measured horizontally of any occupied 
dwelling, the applicant shall submit with the application a written 
waiver as specified in Sec. 86.102(9) (relating to areas where mining 
is prohibited or limited).
    In subsection (e) the word, ``may,'' following ``surface mining 
operations'' has been replaced by, ``will.'' The first part of the 
subsection now reads: ``When the proposed surface mining operations 
will adversely affect a publicly owned park or a place included on the 
National Register of Historic Places, * * *''. Also, the following has 
been added to subsection (e)(2):
    (i) Upon request by the appropriate agency a 30-day extension may 
be granted.
    (ii) Failure to object within the comment period shall constitute 
an approval of the proposed permit by that agency.
    5. 25 PA Code 86.121 (areas designated unsuitable for surface 
mining operations) has been revised for clarity and consistency with 
the Federal regulations (at 30 CFR 762.13). The section's title has 
been changed to: ``Areas exempt from designation as unsuitable for 
surface mining operations.'' Also, subsections (a) and (b) have been 
deleted, and the following added:
    (1) Surface mining operations were being conducted on August 3, 
1977.
    (2) Surface mining operations have been authorized by a valid 
permit issued under the Surface Mining Conservation and Reclamation Act 
(52 P.S. Secs. 1396.1-1396.19a), the Coal Refuse Disposal Control Act 
(52 P.S. Secs. 30.51-30.66), The Clean Streams Law (35 P.S. 
Secs. 691.1-691.1001), or the

[[Page 72299]]

Bituminous Mine Subsidence and Land Conservation Act (52 P.S. 
Secs. 1406.1-1406.21).
    (3) A person establishes that substantial legal and financial 
commitments in surface mining operations were in existence prior to 
January 4, 1977.
    6. In 25 PA Code 86.123 (procedures: petitions), the following 
language has been added to subsection (c)(5) to make it more consistent 
with the Federal regulations at 30 CFR 764.13: ``A person having an 
interest which is or may be adversely affected must demonstrate an 
``injury in fact'' by describing the injury to the specific affected 
interest and demonstrating how they are among the injured.''
    7. 25 PA Code 86.124 (procedures: initial processing, record 
keeping and notification requirements) has been revised for clarity and 
consistency with 25 PA Code 86.126 and the corresponding Federal 
provisions at 30 CFR 764.15 and 764.17. Following the first sentence of 
subsection (2), the following has been inserted: ``A frivolous petition 
is one in which the allegations of harm lack serious merit.'' In 
subsection (c), the following is inserted after the words, 
``allegations of facts'' for clarity: ``* * * describing how the 
designation determination directly affects the intervenor * * *''. 
Subsection (f) has been revised to read as follows: ``The Department 
will prepare a recommendation on each complete petition received under 
this section and submit it to the EQB within 12 months of receipt of 
the complete petition.
    8. 25 PA Code 86.125 (procedures: hearing requirements) has been 
revised for clarity and consistency with the PADEP and EQB regulatory 
review procedures. The part of subsection (a), beginning with the 
words, ``The hearing shall be'' has been separated into a new 
subsection (b). The last sentence under the original subsection (a), 
which had required the EQB to make a verbatim transcript of the 
hearing, has been deleted. The original subsection (b) has been changed 
to (e), and has been revised. The original subsections (c) and (d) have 
been changed to (g) and (h) respectively. The new subsections (c) 
through (d) read as follows:
    (c) No person shall bear the burden of proof or persuasion.
    (d) A verbatim transcript of the hearing will be made and included 
in the public record.
    The opening statement of subsection (e) has been changed to read as 
follows: ``The department will give notice of the date, time and 
location of the hearing by first class mail postmarked not less than 30 
days before the scheduled hearing to:'' Then subsections (e)(2) through 
(4) have been revised as follows: the original language in (e)(2) 
(``The petitioner and intervenors'') has been deleted; the original 
language in (3) has been transferred to (2), and has been changed to 
read, ``persons known to the department to have an ownership or other 
interest in the area covered by the petition'; and (e)(4) has been 
deleted.
    The language originally under subsection (f) is now designated as 
(k). The new subsection (f) reads as follows: ``The Department will 
give notice of the date, time and location of the hearing by certified 
mail postmarked not less than 30 days before the scheduled hearing to 
the petitioner and to the intervenors.''
    9. 25 PA Code 86.126 (procedures: decision) has been revised for 
clarity and consistency with PADEP and EQB regulatory review 
procedures. Under subsection (b) there are new subsections, (1) and 
(2), which specify actions the EQB is required to take, depending on 
its decision whether or not to designate an area as unsuitable for 
surface mining operations.
    10. 25 PA Code 86.127 (data base and inventory system requirements) 
has been revised to correct a misspelling and reflect the dissolution 
of the Department of Community and Economic Development.
    11. 25 PA Code 86.128 (public information) has been revised to 
correct a misspelling.
    12. 25 PA Code 86.129 (coal exploration) has been revised for 
consistency with the Federal regulations at 30 CFR 762.14. It's title 
has been changed to: ``Coal exploration on areas designated as 
unsuitable for surface mining operations.'' The remainder of the 
revised subsection reads as follows:
    (a) Designation of an area as unsuitable for all or certain types 
of surface mining operations under this chapter does not prohibit coal 
exploration operations in the area.
    (b) Coal exploration may be conducted on an area designated as 
unsuitable for surface mining operations in accordance with this 
chapter if the following apply:
    (1) The exploration is consistent with the designation.
    (2) The exploration will be conducted to preserve and protect the 
applicable values and uses of the area under Subchapter E (relating to 
coal exploration), and the Department has issued written approval for 
the exploration.
    13. 25 PA Code 86.130 (areas designated as unsuitable for mining) 
has been revised to insert metric equivalents and correct two 
regulatory references.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comment on whether the amendment proposed by Pennsylvania 
satisfies the applicable requirements for the approval of State program 
amendments. 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 Administration 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 11, 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

[[Page 72300]]

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 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this rule will not produce a Federal mandate of $100 million 
or greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 16, 1999.
Allen D, Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 99-33462 Filed 12-23-99; 8:45 am]
BILLING CODE 4310-05-P