[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46877-46880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19017]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-156-FOR; OSM 2010-0004]
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 an amendment to the Pennsylvania
program (the ``Pennsylvania program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act) (Administrative Record
No. 888.00). The revisions to the regulations specifically address
fourteen required program amendments and the remining financial
guarantee program, thereby addressing a portion of the Pennsylvania
regulatory provisions that were previously determined not to be
approvable. Pennsylvania intends to revise its program to be consistent
with the corresponding Federal regulations. 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, if one is requested.
DATES: We will accept written comments until 4 p.m., local time
September 3, 2010. If requested, we will hold a public hearing on
August 30, 2010. We will accept requests to speak until 4 p.m., local
time on August 19, 2010.
ADDRESSES: You may submit comments, identified by ``PA-156-FOR; Docket
ID: OSM-2010-0004'' by either of the following two methods:
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID: OSM-2010-0004. If you
would like to submit comments through the Federal eRulemaking Portal,
go to http://www.regulations.gov and follow the instructions.
Mail/Hand Delivery/Courier: Mr. George Rieger, Chief,
Pittsburgh Field Division, Office of Surface Mining Reclamation and
Enforcement, Harrisburg Transportation Center, 415 Market St., Suite
304, Harrisburg, PA 17101.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section
of this document.
Docket: In addition to obtaining copies of documents at http://www.regulations.gov, information may also be obtained at the addresses
listed below during normal business hours, Monday through Friday,
excluding holidays. You may receive one free copy of the amendment by
contacting OSM's Pittsburgh Field Division Office.
George Rieger, Chief, Pittsburgh Field Division, Office of Surface
Mining Reclamation and Enforcement, Harrisburg Transportation Center,
415 Market St., Suite 304, Harrisburg, Pennsylvania 17101, Telephone:
(717) 782-4036, E-mail: [email protected];
William S. Allen Jr., Acting 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) 787-5015, E-mail:
[email protected].
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 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
[[Page 46878]]
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 Amendment
By letter dated March 17, 2010, Pennsylvania sent us an amendment
to its program, Administrative Record Number 888.00, under SMCRA (30
U.S.C. 1201 et seq.). Pennsylvania's submittal is intended to address
fourteen required amendments found at 30 CFR 938.16 (rr), (tt), (uu),
(vv), (ww), (xx), (zz), (aaa), (ccc), (iii), (jjj), (nnn), (ppp), and
(ttt). It is also intended to address a partial disapproval of a 1998
submission that included regulations about remining financial
guarantees, which is found at 30 CFR 938.12(c)(3).
Required Amendments at 30 CFR 938.16
The required amendments at 30 CFR 938.16 require Pennsylvania to
submit proposed amendments to:
(rr) section 86.36(c) to require permit denial for unabated
violations of any Federal or State program under SMCRA, without the
three-year limitation.
(tt) section 86.37(a)(10) to require that all violations of the
Federal SMCRA and all programs approved under SMCRA be considered in
determining whether there is a demonstrated pattern of willful
violations.
(uu) section 86.37(a) to require that the criteria upon which the
regulatory authority bases its decision to approve or deny a permit
application are based on all information available to the regulatory
authority.
(vv) section 86.37(a) to include language that would prohibit
permit approval if the applicant or anyone linked to the applicant
through the definition of ``owned or controlled'' or ``owns or
controls'' has forfeited a bond and the violation upon which the
forfeiture was based remains unabated.
(ww) sections 86.37(a)(9) and (a)(16) to require denial of a permit
if it finds that those linked to the applicant through the definition
of ``owned or controlled'' or ``owns or controls'' are delinquent in
payment of abandoned mine reclamation fees or delinquent in the payment
of State and Federal final civil penalty assessments.
(xx) section 86.37(c) to require that the regulatory authority's
reconsideration of its decision to approve the permit include a review
of information, updated for the period from permit approval to permit
issuance, pertaining to the payment of abandoned mine reclamation fees
and civil penalty fees and the status of unabated violations upon which
a bond forfeiture was based.
(zz) section 86.62(b)(2)(ii) to correct the cross-reference to
section 86.63 with a reference to section 86.212(c).
(aaa) sections 86.62(c) and 87.14(3) to include the requirement
that the application include the address for each permit held by a
related entity or company, and identification of the regulatory
authority for such permit.
(ccc) section 86.133(f) to require that exploration on areas
designated as unsuitable for mining shall be subject to permitting
requirements no less effective than the Federal regulations at 30 CFR
772.12.
(iii) section 87.112(c) and 89.111(c) to require a seismic safety
factor of at least 1.2 for all impoundments that meet the criteria of
30 CFR 77.216(a) or are located where failure could cause loss of life
or serious property damage.
(jjj) section 90.112(c)(2) to require that all impounding
structures that meet the criteria of 30 CFR 77.216(a) and are either
constructed of coal mine waste or intended to impound coal mine waste
have sufficient spillway capacity and/or storage capacity to safely
pass or control the runoff from the 6-hour PMP or greater precipitation
event.
(nnn) section 86.159(1)(2) to require two officer signatures for
each corporate indemnitor, an affidavit from the corporation(s)
certifying that entering into the indemnity agreement is valid under
all applicable Federal and State laws, and documents that evidence the
authority of the signatories to bind the corporation and an
authorization by the parent corporation to enter into the indemnity
agreement.
(ppp) section 86.5(m), or otherwise amend its program, to provide
for notification of the operator and any intervenors of a decision not
to revoke an exemption.
(ttt) sections 88.321 and 90.133, or otherwise amend its program to
require that no noncoal waste be deposited in a coal refuse pile or
impounding structure.
Pennsylvania Response to Required Amendments at 30 CFR 938.16
The provisions of the Pennsylvania rules that Pennsylvania proposes
to revise and/or add are found at 25 Pennsylvania Code. The following
is a summary of the regulatory changes being proposed to address
program deficiencies noted at 30 CFR 938.16.
Section 86.1, Definitions
The Noncoal Surface Mining and Reclamation Act is being added to
the list for the definition of Acts. When Chapter 86 was promulgated in
1983, noncoal mining was regulated under the authority of the Surface
Mining Conservation and Reclamation Act (SMCRA). In 1984, the Noncoal
Surface Mining Conservation and Reclamation Act (NSMCRA) was enacted,
superseding the role of SMCRA for noncoal mining. In order to comply
with Federal program requirements (and to have an effective regulatory
program) relating to incidental extraction of coal under noncoal mining
permits, it is necessary to include NSMCRA in the applicable Acts. This
amendment addresses the requirement set forth at 30 CFR 938.16 (tt).
The definition of ``owned or controlled'' and ``owns or controls''
is being corrected to include the current reference to the Federal
regulations relating to definitions. This addresses Federal regulation
revisions that resulted in the definition being placed in a different
section of the State program.
Section 86.5, Extraction of Coal Incidental to Noncoal Surface Mining
Section 86.5(m) is amended to add the requirement for the
Department to notify interested parties in the case that the Department
decides not to revoke an exemption from the coal permitting
requirements. This amendment addresses the requirement set forth at 30
CFR 938.16 (ppp).
Section 86.36, Review of Permit Applications
Section 86.36 is amended to delete the three-year time limitation
for the review of an outstanding Federal violation. This amendment
addresses the requirement set forth at 30 CFR 938.16 (rr).
Section 86.37, Criteria for Permit Approval or Denial
Section 86.37(a)(8) is amended to include a reference to the
Federal definition of a violation. This amendment was required by the
Federal requirement set forth at 30 CFR 938.16 (ww). This amendment
also addresses the deficiencies set forth at 30 CFR 938.16 (uu), (vv),
and (xx).
Section 86.62, Identification of Interests
Section 86.62(b)(2)(ii) is being amended to correct the reference
to the Federal minimum enforcement action.
[[Page 46879]]
This amendment addresses the requirement set forth at 30 CFR
938.16(zz).
Section 86.62(c) is being amended to include the permittee name and
address as required information relating to permits for related
entities and to clarify that issued permits must be reported as part of
an application. This amendment addresses the requirement set forth at
30 CFR 938.16 (aaa).
Section 86.103(g), Procedure; Section 86.129, Coal Exploration on Areas
Designated as Unsuitable for Surface Mining Operations; and Section
86.133, General Requirements
Section 86.103(g) is being added to require that the procedures for
processing an assertion of Valid Existing Rights (VER) follow the
Federal requirements by incorporating the Federal procedural
requirements by reference.
Section 86.129(b) is being amended to provide specific procedures
and requirements for permit applications for exploration activities on
lands designated as unsuitable for mining. The detailed requirements
mirror the Federal procedures and standards for approval. This
amendment also results in the renumbering of current subsections
86.129(b)(1) and 86.129(b)(2).
Section 86.133(f) is being amended to clarify that a permit is
required for exploration activities on lands designated as unsuitable
for mining.
These amendments address the requirements set forth at 30 CFR
938.16(ccc).
Section 86.159, Self-Bonding
Section 86.159(l)(1) is amended to incorporate the language in the
Federal regulations regarding the indemnification of self-bonds in the
case of a corporate applicant that has a parent company. This amendment
addresses the requirement set forth at 30 CFR 938.16(nnn).
Section 87.112, Hydrologic Balance: Dams, Ponds, Embankments and
Impoundments--Design, Construction and Maintenance and Section 89.111,
Large Impoundments
Section 87.112(c) is amended to add a requirement to protect miners
or the public. Section 87.112(c)(1) is amended to add the required
seismic safety factor.
Section 89.111(c) is amended to add a requirement to protect miners
or the public. Section 89.11(c)(1) is amended to add the required
seismic safety factor.
These amendments address the requirement set forth at 30 CFR
938.16(iii).
Section 88.321, Disposal of Noncoal Wastes and Section 90.133, Disposal
of Noncoal Wastes
Section 88.321 is amended to include all noncoal wastes and to
apply the prohibition to impoundments.
Section 90.133 is amended to include all noncoal wastes and to
apply the prohibition to impoundments.
These amendments address the requirements set forth at 30 CFR
938.16(ttt).
Section 90.112, Hydrologic Balance: Dams, Ponds, Embankments and
Impoundments--Design, Construction and Maintenance
Section 90.112(c) is amended to add a requirement to protect miners
or the public. Section 90.112(c)(2) is amended to match the language in
the Federal regulations regarding spillway capacity for large
impoundments at coal refuse disposal sites. These amendments address
the requirements set forth at 30 CFR 938.16 (jjj).
OSM Partial Disapproval of 1998 Regulatory Amendment Found at 30 CFR
938.12(c)(3)
We did not approve a provision of a proposed program amendment that
Pennsylvania submitted on December 18, 1998, regarding 25 Pa Code
86.281(e). The last sentence which states, ``If the actual cost of
reclamation by the Department exceeds the amount reserved, additional
funds from the Remining Financial Assurance Fund will be used to
complete reclamation'' was not approved.
Pennsylvania's Response to the OSM Disapproval at 30 CFR 938.12(c)(3)
The provisions of the Pennsylvania rules that Pennsylvania proposes
to revise and/or add are found at 25 Pennsylvania Code. The following
regulatory changes are being made to the remining financial guarantee
program and should address the portion of 25 Pa Code 86.281(e) that was
not approved as documented at 30 CFR 938.12(c)(3).
Section 86.165, Failure to Maintain Proper Bond
Section 86.165(a) is amended to add that an operator's obligation
to maintain a proper bond includes the payments required under the
Remining Financial Guarantee program. This amendment will allow the
enforcement of the payment requirement using consistent procedures.
Section 86.281, Financial Guarantees To Insure Reclamation--General
Section 86.281(c) is amended to provide that the Department will
designate a specified amount in the financial guarantees special
account as financial assurance for the reclamation obligation of a
permit with an approved remining area, rather than reserving a portion
of those funds. This change is necessary in light of the conversion to
a conventional bonding program. Under conventional bonding, the total
reclamation cost is accounted for when determining the bond amount,
thus enabling the Department to calculate more precisely the amount of
funds that may need to be used to reclaim an approved remining area
covered by a remining financial guarantee.
Section 86.281(e) is amended in conjunction with the revision in
Section 86.281(c) and to clarify that all of the bonds forfeited
(including the Remining Financial Guarantee) on a permit are to be used
for reclamation of the mine site (including the remining area). It also
is amended to allow, rather than require, the use of additional funds
from the Remining Financial Assurance Fund if they are needed to
complete the reclamation of the mine site. This change is based
primarily on the concept that under conventional bonding, the bond
amount posted is the amount required to complete the reclamation. In
addition, it provides the Department with flexibility to use money from
the Remining Financial Assurance Fund to pay for the necessary
reclamation.
Section 86.282, Participation Requirements
Section 86.282(a)(2) is being revised to delete the option of using
the ability to obtain a letter of credit as a demonstration of
financial responsibility. Experience in implementing the Remining
Financial Guarantee program has shown that the ability to obtain a
letter of credit from a bank is not a good test of financial
responsibility.
Section 86.283, Procedures
Section 86.283(a)(1) is amended to change the way the amount of the
payment is determined as a result of the change to conventional
bonding. The deleted language is based on the per-acre bond rate
system. The proposed wording is based on the amount of the Remining
Financial Guarantee.
Section 86.283(d) is amended to clarify how financial guarantee
funds are allocated.
Section 86.283(e) is amended to delete language relating to the
process of
[[Page 46880]]
``bond rollover'' that was allowed under the Alternative Bonding System
(ABS). The concept of ``bond rollover'' is not pertinent to
conventional bonding.
Section 86.283(f) is being added to reduce the potential risk of
insolvency of the Remining Financial Assurance Fund by requiring the
replacement of a Remining Financial Guarantee in the event a
pollutional discharge occurs at a mine site bonded with a Remining
Financial Guarantee.
Section 86.284, Forfeiture
Sections 86.284(a) and (c) are amended to be consistent with the
changes made in Sections 86.281(c) and (e).
The full text of the program amendment is available for you to read
at the locations listed above under ADDRESSES.
III. Public Comment Procedures
Under the provisions of 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 amendment, it
will become part of the Pennsylvania program.
Electronic or Written Comments
If you submit written comments, they should be specific, confined
to issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent Tribal or
Federal laws or regulations, technical literature, or other relevant
publications. We cannot ensure that comments received after the close
of the comment period (see DATES) or sent to an address other than
those listed above (see ADDRESSES) will be included in the docket for
this rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you may
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so. We will not consider anonymous comments.
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
August 19, 2010. If you are disabled and need reasonable 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 there is only limited interest in participating in a public
hearing, 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 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Other Laws and Executive Orders Affecting Rulemaking
When a State submits a program amendment to OSM for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an opportunity for public comment. We
conclude our review of the proposed amendment after the close of the
public comment period and determine whether the amendment should be
approved, approved in part, or not approved. At that time, we will also
make the determinations and certifications required by the various laws
and executive orders governing the rulemaking process and include them
in the final rule.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 28, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2010-19017 Filed 8-3-10; 8:45 am]
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