[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Proposed Rules]
[Pages 50868-50871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14229]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 71, No. 166 / Monday, August 28, 2006 /
Proposed Rules
[[Page 50868]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-147-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 on proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the
Pennsylvania regulatory program (hereinafter, the ``Pennsylvania
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Pennsylvania proposes to revise its program
concerning reclamation fees, financial guarantees for bonding, money
received from fees, the definition of reclamation, reclamation of bond
forfeiture sites, alternate reclamation plans for bond forfeiture
sites, bond forfeiture sites where reclamation is unreasonable,
unnecessary or impossible, and evaluation of bond sites.
The proposed amendments are intended to revise the Pennsylvania
program to be consistent with the corresponding Federal regulations and
to amend provisions at its own initiative.
This document gives the times and locations that the Pennsylvania
program and this submittal are available for your inspection, the
comment period during which you may submit written comments, and the
procedures that we will follow for the public hearing.
DATES: We will accept written comments until 4 p.m., local time,
September 27, 2006. If requested, we will hold a public hearing on
September 22, 2006. We will accept requests to speak until 4 p.m.,
local time on September 12, 2006.
ADDRESSES: You may submit comments, identified by ``PA-147-FOR'', by
any of the following methods:
E-mail: [email protected]. Mail/Hand Delivery: George
Rieger, Director, Pittsburgh Field Division, Office of Surface Mining
Reclamation and Enforcement, 415 Market Street, Room 304, Harrisburg,
PA 17101; Telephone: (717) 782-4036.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number ``PA-147-FOR'' for this rulemaking. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see the ``Public Comment Procedures'' Section in
this document. You may also request to speak at a public hearing by any
of the methods listed above or by contacting the individual listed
under FOR FURTHER INFORMATION CONTACT.
Docket: You may review copies of the Pennsylvania program, this
submission, a listing of any scheduled public hearings, and all written
comments received in response to this document at OSM's Pittsburgh
Field Division Office at the address listed above during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the submission by contacting OSM's Pittsburgh
Field Division's Harrisburg Office. In addition, you may receive a copy
of the submission during regular business hours at the following
location:
Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation,
Pennsylvania Department of Environmental Protection, Rachel Carson
State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5103.
FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Act 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 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 this Act * * *; and rules and
regulations consistent with regulations issued by the Secretary
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior 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 conditions of approval of
the Pennsylvania program in the July 30, 1982, Federal Register (47 FR
33050). You can also find later actions concerning the Pennsylvania
program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15
and 938.16.
II. Description of the Proposed Amendment
By letter dated May 23, 2006 (Administrative Record Number PA
793.11), Pennsylvania sent OSM a proposed program amendment to revise
their program regulations at 25 Pa. Code. The submission includes the
following: (1) Revisions to the Pennsylvania program initiated by
Pennsylvania at 25 Pa. Code 86.17(e), 86.187(a)(2) and 86.283(c); (2)
revisions intended to correct a typographical error in the State
program at 25 Pa. Code 86.187(a)(1); (3) revisions intended to satisfy
five required amendments codified in the Federal regulations at 30 CFR
938.16(mm)-(qq); and (4) revisions to address a previous OSM
disapproval of language at 25 Pa. Code 86.188 (Administrative Record
Number PA 793.11). The Pennsylvania Department of Environmental
Protection (PADEP or Department) believes that this amendment will make
its program consistent with the Federal program and satisfy the
required amendments at 30 CFR 938.16(mm)-(qq). The letter described
Pennsylvania's intended program changes at 25 Pa. Code 86.17(e),
86.187(a)(1), 86.187(b), 86.187(c) and 86.189(c)(2)-(c)(5), 86.188(b)
and (c), 86.190(a), and 86.283(c). The full text of the proposed
amendments is available for you to read
[[Page 50869]]
at the locations listed above under ADDRESSES.
On October 24, 1991, OSM published a final rule requiring the PADEP
to amend its program to be no less effective than the Federal program
(56 FR 55080-55087). The required amendments concern reclamation of
bond forfeiture sites, alternate reclamation plans for bond forfeiture
sites, bond forfeiture sites where reclamation is unreasonable,
unnecessary or impossible, and evaluation of bond forfeiture sites. In
response, PADEP submitted an informal amendment on March 27, 2002, with
draft proposed changes intended to satisfy five required amendments
codified at 30 CFR 938.16(mm)-(qq). The regulatory process in
Pennsylvania was delayed until the State proposed the changes to the
Mining and Reclamation Board in 2005.
On March 31, 2005, Pennsylvania sent a summary of the findings for
those proposed regulatory changes to OSM (Administrative Record Number
PA 793.09). By letter dated April 15, 2005 (Administrative Record
Number PA 793.10), we provided Pennsylvania with our comments on their
draft amendments.
A summary of the proposed changes are as follows.
25 Pa. Code 86.17(e) Reclamation Fees
Pennsylvania has proposed a revision of this Subsection that would
discontinue the collection of the Alternative Bonding System (ABS) $100
per acre reclamation fee. Pennsylvania believes that this fee is no
longer needed because the State now uses a Conventional Bonding System
(CBS).
Until 2001, Pennsylvania's bonding program was funded under its
ABS, which included a central pool of money used for reclamation which
was funded in part by a per-acre reclamation fee paid by operators of
permitted sites, and supplemented by site bonds posted by those
operators for each mine site. Because of growing problems with the
solvency of ABS, in 2001, Pennsylvania began converting all active
surface coal mining permits issued under the ABS, to a Full Cost
Bonding (FCB) program. This FCB requires a permittee to post bonds in
an amount sufficient to cover the estimated costs to complete
reclamation in the event of bond forfeiture. The State believes that
because all of its permittees are now subject to FCB, there is no
longer a basis for maintaining the per acre reclamation fee, and is
therefore, proposing to delete the per-acre fee requirement.
25 Pa. Code 86.187(a)(2) Use of Monies and 25 Pa. Code 86.188
Definition of Reclamation--Eligible Sites Statement
PADEP proposes to revise Section 86.187(a)(2), to include a
requirement that the forfeited bond money be used ``only to reclaim
land and restore water supplies affected by the surface mining
operation upon which liability was charged on the bond, except as
provided in Section 86.190 * * *'' The State also provided
clarification of its policy on bond collection in a letter to OSM dated
May 23, 2006 (Administrative Record No. PA 793.11). The clarification
indicates that ``when a bond is collected, Pennsylvania earmarks the
bond, assigning it to the site for which it was forfeited. It can only
be used for that site unless it is released, pursuant to Section
86.190.'' Before releasing the funds, PADEP stated that it ``conducts a
rigorous review to assure that the bond money is not needed for the
reclamation at the site for which the bond was forfeited.''
25 Pa. Code 86.283(c) Procedures (Financial Guarantees Program)
Pennsylvania has proposed to remove the requirement relating to the
per acre reclamation fees for remining areas for mine operators
approved to participate in the financial guarantees program. The State
has proposed this change for consistency with the change proposed in
Section 86.17(e); PADEP believes that the removal of the $100 per acre
reclamation fee, as discussed in the previous Section of this proposed
amendment, will make this provision inapplicable.
25 Pa. Code 86.187(a)(1) Money Received From Fees
Pennsylvania has proposed a revision of this Subsection to correct
a typographical error. PADEP is deleting the reference to Section
86.17(b) and replacing that correction with a reference to Section
86.17(e).
30 CFR 938.16(mm), 25 Pa. Code 86.187(b) Reclamation of Bond Forfeiture
Sites
Required Amendment: Pennsylvania has proposed revisions of these
Subsections to address a required amendment codified in the Federal
regulations at 30 CFR 938.16(mm) (56 FR 55080-55087). The required
program amendment requires that Pennsylvania delete 25 Pa. Code
86.187(b)(1), or otherwise amend its program, by requiring that
alternative reclamation plans comply with all applicable performance
standards in accordance with 86.189(c)(2), (c)(3) or (c)(4), whichever
is appropriate to be consistent with 30 CFR 800.50.
The State is proposing to revise Section 86.187(b) to make clear
that an alternative reclamation plan must meet applicable performance
standards identified in Section 86.189(c) and to assure that the
Department will notify and consult with the landowner prior to
expending funds for reclamation of a bond forfeiture site in all cases
and not just when an alternative reclamation plan is being considered.
30 CFR 938.16(nn)-(oo), 25 Pa. Code 86.187(c) and 86.189(c)(2)-(c)(5)
Alternate Reclamation Plans for Bond Forfeiture Sites
Required Amendment: Pennsylvania has proposed revisions of these
Subsections to address required amendments published in the Federal
regulations at 30 CFR 938.16(nn) and (oo) (56 FR 55080-55087). The
required amendment requires that Pennsylvania amend 25 Pa. Code
86.187(c) and Section 18(c) of the Pennsylvania Surface Mining and
Conservation Act or otherwise amend its program to be no less effective
than the Federal regulations at 30 CFR 816.133(a) and 817.133(a). The
required amendments require Pennsylvania to require that alternative
postmining land use determinations for sites with forfeited bonds under
the Federal interim program or under Pennsylvania's permanent program
be made to ensure that all disturbed areas are restored to conditions
that are capable of supporting either the uses they were capable of
supporting before any mining, or higher or better uses.
The State is proposing to revise Subsection 86.189(c)(5), to delete
the language requiring reclamation plans for bond forfeiture sites
allowing the sites to be made suitable at a minimum for agriculture,
forests, recreation, wildlife or water conservation. Subsection
86.187(c) is proposed to be revised further by adding language
requiring the alternate reclamation plans to provide for restoration of
the disturbed land to conditions that are capable of supporting either
the uses they were capable of supporting before any mining, or higher
or better uses. Paragraphs (c)(2)-(4) of Section 86.189 are proposed to
be revised to delete the reference to paragraph (5). The Federal
regulations at 30 CFR 816.133(a) and 817.133(a) require that all
disturbed areas be restored to uses they were capable of supporting
before any mining, or to a higher or better use. Paragraph (c)(5) is
being deleted to render Section 86.189 consistent with the Federal
provisions.
[[Page 50870]]
Both 30 CFR 938.16(nn) and (oo) require that Pennsylvania amend 25
Pa. Code 86.187(b)(1) and Section 18(c) of the Pennsylvania Surface
Mining and Conservation Act or otherwise amend its program to be no
less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that
alternative postmining land use determinations for sites with forfeited
bonds under the Federal interim program or under Pennsylvania's
permanent program be made to ensure that all disturbed areas are
restored to conditions that are capable of supporting either the uses
they were capable of supporting before any mining, or higher or better
uses.
30 CFR 938.16(pp)-(qq), 25 Pa. Code 86.190(a) Bond Forfeiture Sites
Where Reclamation Is Unreasonable, Unnecessary Or Impossible
Required Amendment: Pennsylvania has proposed revisions of these
Subsections to address required program amendments codified in the
Federal regulations at 30 CFR 938.16(pp) and (qq) (56 FR 55080-55087),
which require that the State delete words ``but are not limited to''
from the introductory paragraph of Section 86.190(a), as well as the
entire Subsection (a)(3) to be consistent with 30 CFR 800.50.
Pennsylvania proposes to delete Subsection (a)(3) which allows the
landowner of a bond forfeiture site to prevent reclamation. The State
is also proposing to revise Subsection (a) to delete language that
allows for additional reclamation of bond forfeiture sites for reasons
beyond those specifically listed in Subsection (a).
30 CFR 938.15, 25 Pa Code 86.188(b) and (c) Evaluation of Bond
Forfeiture Sites
Required Amendment: Pennsylvania has proposed revisions of these
Subsections to address an OSM disapproval of Section 86.188 to the
extent that Subsections (b) and (c) would allow bond forfeiture funds
posted for and needed to complete reclamation of a specific site be
used for reclamation of other sites. In that disapproval, OSM stated
that the provision would render the Pennsylvania program less effective
than the Federal regulations at 30 CFR 800.50(b)(2). (See 56 FR 55084,
October 24, 1991).
In this submission, the State is proposing to revise Subsections
86.188(b) and (c) to delete the language in paragraphs (b)(5) and
(c)(3). The PADEP stated in its May 23, 2006, letter to OSM that this
proposed revision will make it clear that bond forfeiture funds posted
for and still needed to complete reclamation of the specific site for
which the bonds were forfeited will not be used for reclamation of
other sites until reclamation of the forfeited site has been completed.
The PADEP also stated that the Department fully intends to maintain
adequate bonding so that funds are available for the completion of
reclamation should the bonds be forfeited (Administrative Record No. PA
793.11).
III. Public Comment Procedures
In accordance with 30 CFR 732.17(h), we are seeking your comments
on whether the submission satisfies the applicable program approval
criteria of 30 CFR 732.15. If we approve the amendments, they will
become part of the Pennsylvania program.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. We may not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see DATES). We will make every attempt to log all
comments into the administrative record, but comments delivered to an
address other than the Pittsburgh Field Division identified above may
not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: PA-147-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 Pittsburgh Field Division's
Harrisburg Office at (717) 782-4036.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their 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 review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time on
September 12, 2006. If you are disabled and need special accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the submission, please request a meeting by contacting
the person listed under FOR FURTHER INFORMATION CONTACT. All such
meetings are open to the public and, if possible, we will post notices
of meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
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
[[Page 50871]]
allowable 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 the Federal regulations at 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 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. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian Tribes.
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 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
This rule does not require an environmental impact statement
because 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. 4321 et
seq.).
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 certifies 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 that is the subject of this rule is based on
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. 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 regulations.
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, geographic regions, or Federal, State or local governmental
agencies; and (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 an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. 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 did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 3, 2006.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E6-14229 Filed 8-25-06; 8:45 am]
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