[Federal Register Volume 66, Number 32 (Thursday, February 15, 2001)]
[Proposed Rules]
[Pages 10405-10408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3836]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-132-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 receipt of a proposed amendment to the
Pennsylvania regulatory program (Pennsylvania program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of excerpts of House Bill 393 containing
costs in mine proceedings legislation. The amendment is intended to
revise the Pennsylvania program to be consistent with the corresponding
federal regulations.
DATES: If you submit written comments, they must be received by 4 p.m.
(local time), March 19, 2001. If requested, a public hearing on the
proposed amendment will be held on March 12, 2001. Requests to speak at
the hearing must be received by 4 p.m. (local time), on March 2, 2001.
ADDRESSES: Mail or hand-deliver your written comments and requests to
speak at the hearing to Mr. Robert J. Biggi, at the address listed
below.
You may review copies of the Pennsylvania program, the proposed
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document at the addresses listed
below during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the proposed amendment by
contacting OSM's Harrisburg Field Office.
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, e-mail: [email protected].
Pennsylvania Department of Environmental Protection, Bureau of
Mining and Reclamation, Rachel Carson State Office Building, P.O. Box
8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717)787-5103.
FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg
Field Office, Telephone: (717)782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
On July 31, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. You can find background information
on the Pennsylvania program, including the Secretary's findings, the
disposition of comments, and the conditions of the approval in the July
31, 1982, Federal Register (47 FR 33050). You can find subsequent
actions concerning the conditions of approval and program amendments at
30 CFR 938.11, 938.12, 938.15 and 938.16.
II. Description of the Proposed Amendment
By letter dated January 3, 2001, (Administrative Record No. PA-
848.25), Pennsylvania submitted a proposed amendment to its program at
the Pennsylvania Consolidated Statutes, Title 27 (Environmental
Resources), Chapter 77, section 7708. The full text of the amendment
is:
Excerpts of House Bill 393 Containing Costs in Mine Proceedings
Legislation
Amending Title 27
(Environmental Resources) of the Pennsylvania Consolidated
Statutes, providing for participation in environmental law or
regulation and for costs in mining proceedings.
The General Assembly of the Commonwealth of Pennsylvania hereby
enacts as follows:
Section 1. Title 27 of the Pennsylvania Consolidated Statutes is
amended by adding chapters to read:
Subpart A
General provisions
Chapter 77. Costs and fees
Sec. 7708. Costs for mining proceedings.
(A) Purpose.--This section establishes costs and fees available
in proceedings involving coal mining activities. The purpose of this
section is to provide costs and fees to the same extent of section
525(e) of the Surface Mining Control and Reclamation Act of 1977
(Public Law 95-87, 30 U.S.C. Sec. 1201
[[Page 10406]]
et seq.) and the regulations promulgated pursuant thereto. It is
hereby determined that it is in the public interest for the
Commonwealth to maintain primary jurisdiction over the enforcement
and administration of the Surface Mining Control and Reclamation Act
of 1977 and that the purpose of this section is to maintain primary
jurisdiction over coal mining in this Commonwealth but in no event
to authorize standards which are more stringent than federal
standards for the award of costs and fees.
(B) General rule.--Any party may file a petition for award of
costs and fees reasonably incurred as a result of that party's
participation in any proceeding involving coal mining activities
which results in a final adjudication being issued by the
Environmental Hearing Board or a final order being issued by an
appellate court.
(C) Recipients of awards.--Appropriate costs and fees incurred
for a proceeding concerning coal mining activities may be awarded:
(1) To any party from the permittee, if:
(i) The party initiates or participates in any proceeding
reviewing enforcement actions upon a finding that a violation of a
commonwealth coal mining act, regulation or permit has occurred or
that an imminent hazard existed.
(ii) The Environmental Hearing Board determines that the party
made a substantial contribution to the full and fair determination
of the issues.
Except that the contribution of a party who did not initiate a
proceeding shall be separate and distinct from the contribution made
by a party initiating the proceeding.
(2) To any party, other than a permittee or his representative,
from the department, if that party:
(i) Initiates or participates in any proceeding concerning coal
mining activities.
(ii) Prevails in whole or in part, achieving at least some
degree of success on the merits.
Upon a finding that the party made a substantial contribution to
a full and fair determination of the issues.
(3) To a permittee from the department when the permittee
demonstrates that the department in a matter concerning coal mining
activities issued an order of cessation, a compliance order or an
order to show cause why a permit should not be suspended or revoked,
in bad faith and for the purpose of harassing or embarrassing the
permittee.
(4) To a permittee from any party where the permittee
demonstrates that the party, in bad faith and for the purpose of
harassing or embarrassing the permittee:
(i) Initiated a proceeding under one or more of the coal mining
acts or the regulations promulgated pursuant to any of those acts
concerning coal mining activities;
Or
(ii) participated in such a proceeding in bad faith for the
purpose of harassing or embarrassing the permittee.
(D) Time for filing.--the petition for an award of costs and
fees shall be filed with the Environmental Hearing Board within 30
days of the date an adjudication of the Environmental Hearing Board
becomes final.
(E) Contents of petition.--A petition filed under this section
shall include the name of the party from whom costs and fees are
sought and the following shall be submitted in support of the
petition:
(1) An affidavit setting forth in detail all reasonable costs
and fees reasonably incurred for or in connection with the party's
participation in the proceeding.
(2) Receipts or other evidence of such costs and fees.
(3) Where attorney fees are claimed, evidence concerning the
hours expended on the case, the customary commercial rate of payment
for such services in the area and the experience, reputation and
ability of the individual or individuals performing the services.
(F) Answer.--Any party shall have 30 days from service of the
petition within which to file an answer to such petition.
(G) Exclusive remedy.--Except for section 601 of the act of June
22, 1937 (Pub. L. 1987, No. 394), known as the Clean Streams Law,
Section 18.3 of the act of May 31, 1945 (Pub. L. 1198, No. 418),
known as the Surface Mining Conservation and Reclamation Act,
Section 13 of the Act of April 27, 1966 (1st Sp.Sess., Pub. L. 31,
No. 1), known as the Bituminous Mine Subsidence and Land
Conservation Act and Section 13 of the act of September 24, 1968
(Pub. L. 1040, No. 318), known as the Coal Refuse Disposal Control
Act, this section shall be the exclusive remedy for the awarding of
costs and fees in proceedings involving coal mining activities.
(H) Definitions.--The following words and phrases when used in
this section shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
Coal mining activities. The extraction of coal from the earth,
waste or stockpiles, pits or banks by removing the strata or
material which overlies or is above or between them or otherwise
exposing and retrieving them from the surface, including, but not
limited to, strip mining, auger mining, dredging, quarrying and
leaching and all surface activity connected with surface or
underground coal mining, including, but not limited to, exploration,
site preparation, coal processing or cleaning, coal refuse disposal,
entry, tunnel, drift, slope, shaft and borehole drilling and
construction, road construction, use, maintenance and reclamation,
water supply restoration or replacement, repair or compensation for
damages to structures caused by underground coal mining and all
activities related thereto.
Coal mining acts. The provisions of the act of June 22, 1937
(Pub. L. 1987, No. 394), known as the Clean Streams Law, the act of
May 31, 1945 (Pub. L. 1198, No. 418), known as the Surface Mining
Conservation and Reclamation Act, the Act of April 27, 1966 (1st 27
Sp.Sess., Pub. L. 31, No. 1), known as the Bituminous Mine
Subsidence and Land Conservation Act, and the act of September 24,
1968 (Pub. L. 1040, No. 318), known as the Coal Refuse Disposal
Control Act, which govern coal mining or activities related to coal
mining.
Costs and fees. All reasonable costs and expenses, including
attorney fees and expert witness fees, reasonably incurred as a
result of participation in a proceeding involving coal mining
activities.
Department. The Department of Environmental Protection of the
Commonwealth.
Proceeding. Appeals of final Department of Environmental
Protection actions before the Environmental Hearing Board and
judicial review of Environmental Hearing Board adjudications.
Section 2. (A) The following acts or parts of acts are repealed:
The fifth sentence of section 4(b) and subsection (f)(5) of
section 4.2 of the act of May 31, 1945 (Pub. L. 1198, No. 418),
known as the Surface Mining Conservation and Reclamation Act.
The last sentence of section 5(g) of the act of April 27,1966
(1st Sp.Sess., Pub. L. 31, No. 1), known as the Bituminous Mine
Subsidence and Land Conservation Act.
The last sentence of section 5(i) of the act of September 24,
1968 (Pub. L. 1040, No. 318), known as the Coal Refuse Disposal
Control Act.
(B) All other acts and parts of acts are repealed insofar as
they are inconsistent with this act.
Section 3. The addition of 27 Pa.C.S. Section 7708 shall apply
to all proceedings and petitions for costs and fees filed after the
effective date of this act.
Section 4. This act shall take effect as follows:
(1) The following provisions shall take effect immediately:
(i) The addition of 27 Pa.C.S. Section 7708.
(ii) this section.
(2) The remainder of this act shall take effect in 60 days.
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: If you submit written or electronic comments on
the proposed rule during the 30-day comment period, they should be
specific, should be confined to issues pertinent to the notice, and
should explain the reason for your recommendation(s). We may not be
able to consider or include in the Administrative Record comments
delivered to an address other than the one listed above (see
ADDRESSES).
Electronic Comments: Please submit Internet comments as an ASCII,
WordPerfect, or Word file avoiding the use of special characters and
any form of encryption. Please also include ``Attn: SPATS NO. PA-132-
FOR'' and your name and return address in your Internet message. If you
do not receive a confirmation that we have received your Internet
message, contact the Harrisburg Field Office at (717) 782-4036.
[[Page 10407]]
Availability of Comments: Our practice is to make comments,
including names and home addresses of respondents, available for public
review during regular business hours at the OSM Administrative Record
Room (see ADDRESSES). Individual respondents may request that we
withhold their home address from the rulemaking record, which we will
honor to the extent allowable by law. There also may be circumstances
in which we would withhold from the rulemaking 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.
Public Hearing: If you wish to speak at the public hearing, you
should contact the person listed under FOR FURTHER INFORMATION CONTACT
by 4 p.m. (local time), on March 2, 2001. The location and time of the
hearing will be arranged with those persons requesting the hearing. If
no one requests an opportunity to speak at the public hearing, the
hearing will not be held.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who testifies at a public
hearing provide us with a written copy of his or her testimony. The
public hearing will continue on the specified date until all persons
scheduled to speak have been heard. If you are in the audience and have
not been scheduled to speak and wish to do so, you will be allowed to
speak after those who have been scheduled. We will end the hearing
after all persons scheduled to speak and persons present in the
audience who wish to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting: If only one person requests an opportunity to speak
at a hearing, a public meeting, rather than a public hearing, may be
held. If you wish to meet with OSM representatives to discuss the
proposed amendment, you may request a meeting by contacting the person
listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be
open to the public and, if possible, notices of meetings will be posted
at the locations listed under ADDRESSES. A written summary of each
meeting will be made a part of the Administrative Record.
Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
counterpart federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the state. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart federal regulation.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the state submittal
which is the subject of this rule is based upon counterpart federal
regulations for which an analysis was prepared and a determination made
that the federal regulation was not considered a major rule.
[[Page 10408]]
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 18, 2001.
Vann Weaver,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-3836 Filed 2-14-01; 8:45 am]
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