[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.

* * * * *

[[Page 57666]]



----------------------------------------------------------------------------------------------------------------
   Original amendment submission date      Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
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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