[Federal Register Volume 66, Number 222 (Friday, November 16, 2001)]
[Rules and Regulations]
[Pages 57662-57666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28761]
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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: Final rule.
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SUMMARY: The Secretary of the Interior (Secretary) is approving
legislation submitted by Pennsylvania as part of its regulatory program
(Pennsylvania program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA or the Act). Pennsylvania submitted the legislation
to satisfy a condition of program approval found at 30 CFR 938.11(i).
The condition requires the submission of enacted laws providing for the
award of costs and expenses that are no less effective than 30 CFR
840.15 and in accordance with section 525(e) of SMCRA.
EFFECTIVE DATE: November 16, 2001.
FOR FURTHER INFORMATION CONTACT: Beverly Brock, Acting 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,
email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Pennsylvania's Submission
III. Secretary's Findings
IV. Summary and Disposition of Comments
V. Secretary's Decision
VI. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of SMCRA permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *'' and
``rules and regulations consistent with regulations issued by the
Secretary'' pursuant to the Act. 30 U.S.C. 1253(a)(1) and (7). On the
basis of these criteria, the Secretary conditionally approved the
Pennsylvania program on July 30, 1982. 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 30, 1982, Federal Register (47 FR 33050).
Subsequent actions concerning the Pennsylvania program and previous
amendments are codified at 30 CFR 938.11, 938.12, 938.15 and 938.16.
II. Pennsylvania's Submission
By letter dated January 3, 2001, (Administrative Record Number PA
848.25), the Pennsylvania Department of Environmental Protection
(PADEP) submitted legislation consisting of excerpts of House Bill 393
regarding attorney costs and expenses associated with administrative
legal proceedings relating to coal mining for Secretarial approval.
House Bill 393 amends Title 27 of the Pennsylvania Consolidated
Statutes by adding section 7708 titled, ``Costs for Mining
Proceedings.''
The full text of Pennsylvania's submission was published in the
February 15, 2001, Federal Register (66 FR 10405). The public comment
period closed on March 19, 2001. OSM received two comments. No one
requested an opportunity to speak at a public hearing, so no hearing
was held.
III. Secretary's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Secretary's findings concerning the
legislation submitted by Pennsylvania.
Section 1 of House Bill 393 amends Title 27 of the Pennsylvania
Consolidated Statutes by adding Chapter 77, ``Costs and Fees,'' section
7708. Section 7708 (a) states that
[[Page 57663]]
purpose of the 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. 1201 et seq.) and the
regulations promulgated pursuant thereto.'' The Secretary finds that
this portion of the legislation is in keeping with the requirements of
the program condition at 30 CFR 938.11 that requires Pennsylvania to
submit legislation in accordance with section 525(e) of SMCRA. The
Secretary is approving this portion of the submission.
Section 7708 (b) provides that, ``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.''
The Secretary finds that this provision is consistent with the
provision in the Federal regulations at 43 CFR 4.1290. The Secretary is
approving this portion of the submission.
Section 7708 (c) defines who may receive an award. Subsection (1)
defines the circumstances under which appropriate costs and fees may be
awarded to any person from the permittee. This section is substantively
identical to the provisions in the Federal regulations at 43 CFR
4.1294(a). The Secretary is approving this portion of the submission.
Subsection (2) defines the circumstances under which appropriate
costs and fees may be awarded to any party, other than a permittee or
his representative, from the department. This section is substantively
identical to the provisions in the Federal regulations at 43 CFR
4.1294(b). The Secretary is approving this portion of the submission.
Subsection (3) provide that costs and fees may be awarded 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. This section is
substantively identical to the provisions in the Federal regulations at
43 CFR 4.1294(c). The Secretary is approving this portion of the
submission.
Subsection (4) defines the circumstances under which appropriate
costs and fees may be awarded to a permittee from any party. This
section is substantively identical to the provisions in the Federal
regulations at 43 CFR 4.1294(d). The Secretary is approving this
portion of the submission.
Section 7708(d) defines the time for petitions for an award of
costs. This section requires the petitions to be filed with the
Environmental Hearing Board within 30 days of the date an adjudication
of the Environmental Hearing Board becomes final. The Federal
regulations at 43 CFR 4.1291 require petitions to be filed within 45
days of receipt of a final order. While the Pennsylvania provision
allows less time for the filing of these petitions, the Secretary finds
that 30 days is still a reasonable allotment of time. Moreover, the
deadline will apply to both citizens and coal operators, and is
therefore even-handed on its face. As such, the Secretary finds that
subsection (d) is no less effective than its Federal counterpart in
ensuring that parties have an adequate opportunity to petition the
appropriate tribunal for an award of costs and fees, and it is
therefore approved.
Section 7708(e) states the requirements for the contents of a
petition. The requirements are substantively identical to the
requirements of the Federal regulations at 43 CFR 4.1292(a)(1) through
(3). The Secretary is approving this portion of the submission.
Section 7708(f) provides that any party shall have 30 days from
service of the petition within which to file an answer to such
petition. This section is substantively identical to the Federal
regulation at 43 CFR 4.1293. The Secretary is approving this portion of
the submission.
Section 7708(g) states, ``Except for section 601 of the act of June
22, 1937 (P.L.1987, No.394), known as the Clean Streams Law, Section
18.3 of the act of May 31, 1945 (P.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., P.L.31, No.1), known as the Bituminous
Mine Subsidence and Land Conservation Act and Section 13 of the act of
September 24, 1968 (P.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.'' The sections of the various laws excluded in section
7708(g) refer to citizen suits. Section 520 of SMCRA provides for
citizen suits, and subsection (f) of this section allows persons to
bring actions for damages, including attorney fees and expert witness
fees, in the event of personal or property injury caused by a violation
of SMCRA. Section 7708(g) merely preserves this independent basis for
seeking awards of costs and attorney fees incurred in citizen suits.
Accordingly, the Secretary finds that this portion of the submission
does not make the submission as a whole inconsistent with SMCRA or the
Federal regulations regarding petitions for awards and costs and is
approving this section.
Section 7708(h) provides definitions for terms used in this
section. The language states:
(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
(P.L.1987, No.394), known as the Clean Streams Law, the act of May
31, 1945 (P.L.1198, no.418), known as the Surface Mining
Conservation and Reclamation Act, the Act of April 27, 1966 (1st 27
Sp.Sess., P.L.31, No.1), known as the Bituminous Mine Subsidence and
Land Conservation Act, and the act of September 24, 1968 (P.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.
The Secretary finds that the definitions of the terms, ``coal
mining activities,'' ``coal mining acts,'' ``costs and fees,''
``Department,'' and ``proceeding'' do not make the submission
inconsistent with the
[[Page 57664]]
Federal regulations and is approving those definitions.
We note that this submission lacks a specific counterpart to the
Federal regulations at 43 CFR 4.1295(b), which states that an award may
include ``all costs and expenses, including attorneys' fees and expert
witness fees, reasonably incurred in seeking the award* * *'' However,
section 7708(a) states that the purpose of section 7708 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.
1201 et seq.) and the regulations promulgated pursuant thereto.'' Also,
while section 7708(b) sets forth a general rule that a party may file a
petition for costs and fees as a result of any ``proceeding involving
coal mining activities,'' and while the definition of ``proceeding''
contained in section 7708(h) does not expressly include fee petition
proceedings, the general rule does not appear to prevent the
Environmental Hearing Board from complying with the above-stated
purpose of section 7708 by awarding costs and fees reasonably incurred
in seeking the award for the underlying proceeding. Thus, the Secretary
finds that section 7708 provides the Environmental Hearing Board with
the authority to award all costs and expenses, including attorneys'
fees and expert witness fees, reasonably incurred in seeking the award.
Section 2 of House Bill 393 repeals sections of several
Pennsylvania mining laws. Specifically, the following sections are
repealed:
The fifth sentence of section 4(b) and subsection (f)(5) of section
4.2 of the act of May 31, 1945 (P.L. 1198, No. 418), known as the
Surface Mining Conservation and Reclamation Act. The fifth sentence of
section 4(b) states, ``The Environmental Hearing Board, upon the
request of any party, may in its discretion order the payment of costs
and attorney's fees it determines to have been reasonably incurred by
such party in proceedings pursuant to this section.'' Subsection (f)(5)
states, ``A surface mining operator or owner who provides a successful
defense to the presumptions of liability shall be entitled to recover
the costs incurred, including, but not limited to, the costs of
temporary water supply, design, construction, restoration or
replacement costs, attorney fees and expert witness fees from the
department.''
The last sentence of section 5(g) of the act of April 27, 1966 (1st
Sp. Sess., P.L. 31, No. 1), known as the Bituminous Mine Subsidence and
Land Conservation Act. This sentence states, ``The Environmental
Hearing Board, upon the request of any party, may in its discretion
order the payment of costs and attorney's fees it determines have been
reasonably incurred by such party (sic) proceedings pursuant to this
section.''
The last sentence of section 5(i) of the act of September 24, 1968
(P.L. 1040, No. 318), known as the Coal Refuse Disposal Control Act.
This sentence states, ``The Environmental Hearing Board, upon the
request of any party, may in its discretion order the payment of costs
and attorney's fees it determines to have been reasonably incurred by
such party in proceedings pursuant to this section.''
In addition, section 2(b) of House Bill 393 indicated that, ``All
other acts and parts of acts are repealed insofar as they are
inconsistent with this act.''
The Secretary is approving the repeal of the above noted statute
sections. Repeal of these sections, in conjunction with the addition of
the new section 7708, does not make this submission inconsistent with
the Federal regulations.
Section 3 of House Bill 393 states, ``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.'' The Secretary finds
that this section is not inconsistent with SMCRA or the Federal
regulations, and is therefore approving it.
Section 4 of House Bill 393 provides that:
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.
The Secretary finds that this section is not inconsistent with
SMCRA or the Federal regulations, and is therefore approving it.
IV. Summary and Disposition of Comments
Federal Agency Comments
On January 31, 2001, we asked for comments from various Federal
agencies who may have an interest in the Pennsylvania submission
(Administrative Record Number PA 848.26). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the Federal regulations.
The U.S. Department of Labor, Mine Safety and Health Administrative
(MSHA) commented that Title 27, Environmental Resources of the
Pennsylvania Consolidated Statutes, is consistent with requirements of
section 525(e) of the Surface Mining Control and Reclamation Act of
1977.
No other Federal agency comments were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to
obtain the written concurrence of the EPA with respect to those
provisions of the proposed program submission that relate to air or
water quality standards promulgated under the authority of the Clean
Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401
et seq.). We have determined that this submission contains no such
provisions, thereby rendering EPA concurrence unnecessary. By letter
dated January 31, 2001, we requested comments from EPA on the State's
proposed submission of January 3, 2001, (Administrative Record Number
PA 848.26). EPA responded on April 11, 2001, (Administrative Record
Number PA 848.29) by noting that it had no comments on the submission.
Public Comments
No comments were received in response to our request for public
comments.
V. Secretary's Decision
Based on the findings above we are approving Pennsylvania's
submission and removing the condition codified at 30 CFR 938.11(i).
The Federal regulations at 30 CFR Part 938 codifying decisions
concerning the Pennsylvania program are being amended to implement this
decision. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. Consistency of State and Federal standards is required by
SMCRA.
VI. 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.
[[Page 57665]]
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.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866, and because it is not expected to have a
significant adverse effect on the supply, distribution, or use of
energy, a Statement of Energy Effects is not required.
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.
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: October 15, 2001.
J. Steven Griles,
Acting Assistant Secretary Lands and Minerals Management.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below.
PART 938--PENNSYLVANIA
1. The authority citation for Part 938 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 938.11 is amended by removing and reserving paragraph
(i).
3. Section 938.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
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[[Page 57666]]
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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
January 3, 2001......................... 11/16/01................... Addition of Chapter 77, Section 7708 to
2001 Title 27 of the Pennsylvania
Consolidated Statutes; repeal of the
fifth sentence of section 4(b) and
section 4.2(f)(5) of the Surface Mining
Conservation and Reclamation Act of May
31, 1945 (P.L. 1198, No. 418); repeal of
the last sentence of section 5(g) of the
Bituminous Mine Subsidence and Land
Conservation Act of April 27, 1966 (1st
Sp. Sess., P.L. 31, No. 1); repeal of
the last sentence of section 5(i) of the
Coal Refuse Disposal Control Act of
September 24,1968 (P.L. 1040, No. 318).
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[FR Doc. 01-28761 Filed 11-15-01; 8:45 am]
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