[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Rules and Regulations]
[Pages 56619-56623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19661]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-149-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Pennsylvania regulatory
program (the ``Pennsylvania program'') regulations under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The
amendment adds new section 25 Pennsylvania Code (PA Code) 86.6 which
provides for the exemption from the permitting requirements of 25 PA
Code Chapters 87 and 88, relating to surface mining of coal, when
extraction of coal is incidental to government-financed construction or
government-financed reclamation projects and specified requirements are
met.
DATES: Effective Date: October 4, 2007.
FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field
Division, Telephone: (717) 782-4036, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 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.'' 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
[[Page 56620]]
approval in the July 30, 1982, Federal Register (47 FR 33050). You can
also find later actions concerning Pennsylvania's program and program
amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16.
II. Submission of the Amendment
By letter dated December 18, 2006, the Pennsylvania Department of
Environmental Protection (PADEP) sent us an amendment to revise its
program regulations at 25 Pennsylvania Code (Administrative Record No.
PA 891.00) under SMCRA (30 U.S.C. 1201 et seq.). The revisions that
Pennsylvania proposed at its own initiative concern program changes to
address the exemption of permitting requirements when the extraction of
coal is incidental to government-financed construction or government-
financed reclamation projects.
We announced receipt of the proposed amendment in the February 6,
2007, Federal Register (72 FR 5380). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
No. PA 891.03). The public comment period ended on March 8, 2007. We
did not hold a public hearing or meeting because no one requested one.
We did not receive any public comments. We received written comments
from three Federal agencies: Mine Safety and Health Administration,
District 1 (Administrative Record No. 891.04); Mine Safety and Health
Administration, District 2 (Administrative Record No. 891.02); and
Environmental Protection Agency (Administrative Record No. 891.05).
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment which amends Chapter 86 of the Pennsylvania
Code by adding the subsection 86.6, Extraction of coal incidental to
government-financed construction or government-financed reclamation.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording, editorial, or re-numbering of section changes
and are approved here without discussion.
The Federal regulations regarding government-financed construction
contracts are found at: (1) 30 CFR part 707, Exemption for Coal
Extraction Incident to Government-Financed Highway or Other
Construction. This part establishes the procedures for determining
those surface coal mining and reclamation operations which are exempt
from permitting requirements because the extraction of coal is an
incidental part of Federal, State, or local government-financed highway
or other construction and meets specified criteria that ensure that the
construction is government-financed and that the extraction of coal is
incidental to it; and (2) 30 CFR 874.17, Abandoned Mine Land agency
procedures for reclamation projects receiving less than 50% government
financing. This section sets forth the requirements for the AML agency
when considering an abandoned mine land reclamation project as
government-financed construction under 30 CFR part 707. This section
only applies if the level of funding for the construction will be less
than 50% of the total cost because of planned coal extraction.
Pennsylvania had previously adopted the provisions of 30 CFR part 874
in prior rulemaking. This amendment concerns the provisions of 30 CFR
part 707.
This amendment concerns the exemption from the permitting
requirements of 25 Pa Code Chapters 87 and 88 when the extraction of
coal is incidental to government-financed construction contracts or
government-financed abandoned mine land reclamation projects.
Pennsylvania has added a new section, 25 Pa Code 86.6, to address the
definitions, eligibility requirements (applicability) for exemption,
and information to be maintained on-site. With a few exceptions, this
new section contains language that mirrors the Federal definitions,
eligibility requirements, etc. provided at 30 CFR part 707. The
specific sections and findings are provided below.
25 Pa Code 86.6(a)(1) provides that the PADEP be provided an
opportunity to provide comments to the government entity financing the
construction or reclamation during the site selection process and prior
to development of final construction plans regarding the potential
environmental impacts of the project. There is no Federal counterpart
to this requirement. However, this change requires additional
coordination to assure that environmental impacts are considered.
Therefore, we find that the addition of 25 Pa Code 86.6(a)(1) does not
render the Pennsylvania program inconsistent with SMCRA or the Federal
regulations and can be approved.
25 Pa Code 86.6(a)(2) provides for the eligibility limits of the
extraction of coal as it pertains to the right-of-way for roads,
utility lines, or other similar construction. This is consistent with
the Federal regulations at 707.5, Definitions. However, there is no
mention that any extraction outside of the right-of-way or boundary of
the area is subject to the requirements of the Act as mentioned in the
Federal regulations at 707.5. One can deduce that once it is determined
that the exemption criteria cannot be met, the exemption does not apply
and the applicability of this chapter does not exist. Therefore, we
find that the addition of 25 Pa Code 86.6(a)(2) is no less stringent
than SMCRA and no less effective than the Federal regulations and can
be approved.
25 Pa Code 86.6(a)(3) and (a)(4) provide the cost sharing
requirements necessary for the construction project or reclamation to
be eligible for consideration under this subchapter.
The language provides that the construction or reclamation be
funded by a unit of government and it be funded 50% or more by funds
appropriated from the government unit's budget or obtained from general
revenue bonds. Funding at less than 50% may qualify if the construction
is undertaken as a Department-approved reclamation contract or project.
There is no mention of the requirement for the project to meet the
eligibility requirements of Title IV of SMCRA. However, the
Pennsylvania statute [PA SMCRA Section 4.8(c)(1)] makes specific
reference to abandoned mine land reclamation eligibility as a condition
to secure special authorization under this section and the regulations
must be read in the context of the authorizing statute, as it serves to
limit the application of 86.6(a)(4) to abandoned mine land reclamation.
Furthermore, the AML plan as amended in 1999 includes provisions
requiring coordination between the AML and Title V Agency and an
authorization which includes the requirement that the project be an
abandoned mine land reclamation project. Because the AML eligibility
requirement is provided in the statute and in the AML plan, we find
that the addition of 25 Pa Code 86.6(a)(3) and (4) is no less stringent
than SMCRA and no less effective than the Federal regulations and can
be approved.
25 Pa Code 86.6(a)(5) and (a)(6) provide that the construction be
performed under a bond, contract and specifications that substantially
provide for and require protection of the environment, reclamation of
the affected area, and handling of excavated materials in a manner
consistent with the acts and regulations implementing the acts. In
addition, it provides that the Department approve the standards and
specifications for protection of the environment that will apply to the
project when potential adverse
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environmental impacts have been identified. There is no Federal
counterpart to this requirement. However, these requirements provide
additional assurance that reclamation will be performed in a
satisfactory manner. Therefore, we find that the addition of 25 Pa Code
86.6(a)(5) and (a)(6) do not render the Pennsylvania program
inconsistent with SMCRA or the Federal regulations and can be approved.
25 Pa Code 86.6(b) provides that construction funded through
government financing agency guarantees, insurance, loans, funds
obtained through industrial revenue bonds or their equivalent or in-
kind payments does not qualify as government-financed construction.
This is consistent with the Federal regulations at 30 CFR 707.5,
Definitions. We find that the addition of 25 Pa Code 86.6(b) is no less
stringent than SMCRA and no less effective than the Federal regulations
and can be approved.
25 Pa Code 86.6(c) provides that documentation must be available
for inspection on-site when a person extracting coal incidental to
government-financed construction or government-financed reclamation
extracts more than 250 tons of coal or affects more than 2 acres. The
required documentation is provided in subsections 86.6(c)(1) through
(c)(4). Subsections 86.6(c)(1) through (c)(3) are consistent with the
Federal regulations at 30 CFR 707.12(a), (b), and (c). Therefore, we
find that addition of 25 Pa Code 86.6(c)(1) through (c)(3) is no less
stringent than SMCRA and no less effective than the Federal regulations
and can be approved.
There is no Federal counterpart for subsection 86.6(c)(4), which
requires that when an area is wholly or partially within an area
designated unsuitable for mining by the Environmental Quality Board
under 86.130, a copy of the detailed report required by subsection
86.124(e) relating to procedures (initial processing, recordkeeping and
notification requirements) must be maintained on the site and made
available for inspection. The change reflects an additional information
requirement and therefore, we find that the addition of 25 Pa Code
86.6(c)(4) does not render the Pennsylvania program inconsistent with
SMCRA or the Federal regulations and can be approved.
25 Pa Code 86.6(d) provides that government-financed construction
projects and government-financed reclamation must comply with Chapters
91-96, 102 and 105. The reference requires that the project and
reclamation comply with the State regulations pertaining to water
quality, National Pollutant Discharge Elimination System, sediment
control, waste management, and dam safety. There is no Federal
counterpart for subsection 86.6(d). The Pennsylvania regulations
require compliance with other environmental standards and, therefore,
we find that the addition of 25 Pa Code 86.6(d) does not render the
Pennsylvania program inconsistent with SMCRA or the Federal regulations
and can be approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment through the Federal
Register Notice dated February 6, 2007, (72 FR 5380) (Administrative
Record No. PA 891.03). We did not receive any comments from the public.
Federal Agency Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the
Pennsylvania program (Administrative Record No. PA 891.01). The Mine
Safety and Health Administration (MSHA), District 1, responded
(Administrative Record No. PA 891.04) and stated that it did not have
any comments or concerns regarding this request. The Mine Safety and
Health Administration (MSHA), District 2, responded (Administrative
Record No. PA 891.02) and stated that in the case of government-
financed construction or other government-financed reclamation
projects, MSHA reserves the right to assess each project where the
extraction of coal is incidental to the project, to determine
jurisdictional standing.
Environmental Protection Agency (EPA) Concurrence and Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we
are required to get a written concurrence from EPA for those provisions
of the program amendment that relate to air or water quality standards
issued 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.).
None of the revisions that Pennsylvania proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment.
On December 20, 2006, we requested comments on the amendment from
EPA (Administrative Record No. PA 891.01). The EPA, Region III,
responded (Administrative Record No. 891.05) and stated that it did not
identify any inconsistencies with the Clean Water Act or any other
statutes or regulations under its jurisdiction.
V. OSM's Decision
Based on the above findings, we approve the amendment Pennsylvania
sent to us on December 18, 2006. We are approving the changes to the
Pennsylvania program at 25 Pa. Code 86.6.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 938, which codify decisions concerning the Pennsylvania
program. 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. SMCRA requires consistency of State and Federal
standards.
VI. 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 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 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 because each 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
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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 lands.
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
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 (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 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 amendment 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. 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 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 government
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 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: August 30, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
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For the reasons set out in the preamble, 30 CFR part 938 is amended as
set forth below:
PART 938--PENNSYLVANIA
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1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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2. Section 938.15 is amended by adding a new entry in the table 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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Original amendment submission date Date of final publication Citation/description
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December 18, 2006.................... October 4, 2007.............. 25 Pa. Code 86.6 [add].
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[FR Doc. E7-19661 Filed 10-3-07; 8:45 am]
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