[Federal Register Volume 67, Number 215 (Wednesday, November 6, 2002)]
[Rules and Regulations]
[Pages 67528-67531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28200]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-136-FOR]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the Pennsylvania 
regulatory program ( the ``Pennsylvania program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Pennsylvania proposed to revise its program at 25 Pa. Code Sections 
86.37(a)(5), 87.160(a), 88.138(a), 88.231(a), 88.335(a), and 90.134(a) 
about criteria for permit approval or denial and for performance 
standards for retention of roads following completion of surface mining 
activities. Pennsylvania intended to revise its program to be 
consistent with the corresponding Federal regulations and SMCRA, and to 
clarify ambiguities.

EFFECTIVE DATE: November 6, 2002.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036. Email: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Proposed 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 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, 938.15 and 938.16.

II. Submission of the Proposed Amendment

    By letter dated February 25, 2002, Pennsylvania sent us an 
amendment to its program (Administrative Record No. PA 889.00) under 
SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania sent the amendment in 
response to the required program amendment at 30 C.F.R. 938.16(gggg) 
and to include changes made at its own initiative.
    We announced receipt of the proposed amendment in the April 16, 
2002, Federal Register (67 FR 18518). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendments adequacy. We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on May 16, 2002. We did not receive any comments.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at

[[Page 67529]]

30 CFR 732.15 and 732.17. We are approving the amendment.

a. Revisions to Pennsylvania's Regulations That Have the Same Meaning 
as the Corresponding Provisions of the Federal Regulations

    In response to the required amendment found at 30 CFR 938.16(gggg), 
Pennsylvania proposed a revision to 25 Pa. Code 90.134(a). The proposed 
amendment contains language making the rule similar to the 
corresponding sections of the Federal regulations.
    30 CFR 938.16(gggg) requires Pennsylvania to amend its performance 
standards for coal refuse disposal by requiring that haul roads and 
access roads be designed, constructed, and maintained to control or 
prevent erosion. Pennsylvania proposed to satisfy this required 
amendment by adding the phrase, ``erosion and'' to 25 Pa. Code 
90.134(a). The language of the section now reads, ``[h]aul roads and 
access roads shall be designed, constructed and maintained to control 
or prevent: erosion and contributions of sediment to streams or runoff 
outside the affected area * * *'' Since Pennsylvania added the required 
language, we find that the proposed rule satisfies the required 
amendment and are therefore approving the amendment.
    We are also approving the State's proposed changes to 25 Pa. Code 
86.37, which contains criteria for permit approval or denial. The 
current language of 86.37(a)(5) requires that the ``proposed permit 
area'' exclude several enumerated categories.
    The amendment we are approving replaces the phrase ``the proposed 
permit area'' with ``the area covered by the operator's bond and upon 
which the operator proposes to conduct surface mining activities within 
the boundary of the proposed surface or coal mining activities 
permit.'' Thus, the issue presented by this proposed amendment is 
whether the proposed language is no less effective than the Federal 
regulations at 30 CFR 773.15(c), which provide, as a precondition to 
permit approval, that the ``permit area'' not include certain protected 
lands. Based on the following discussion, we find that the proposed 
language is no less effective than its Federal counterpart.
    The Federal definition of ``permit area'' is ``the area of land, 
indicated on the approved map submitted by the operator with his or her 
application, required to be covered by the operator's performance bond 
under subchapter J of this chapter and which shall include the area of 
land upon which the operator proposes to conduct surface coal mining 
and reclamation operations under the permit, including all disturbed 
areas; provided that areas adequately bonded under another valid permit 
may be excluded from the permit area.'' 30 CFR 701.5. Like the Federal 
definition, Pennsylvania's proposed amendment includes the area covered 
by an operator's bond and upon which surface coal mining and 
reclamation operations will be conducted as designated in the permit. 
However, unlike the Federal definition, the proposed language does not 
explicitly include ``all disturbed areas.''
    Although the proposed language does not explicitly cover all 
disturbed areas, it implicitly includes such areas by including the 
area covered by the operator's bond. Under 25 Pa. Code 86.143(b), an 
operator's bond must cover all disturbed areas. It states that ``[a]n 
operator may not disturb surface acreage * * * prior to receipt of 
approval from the Department of a bond and issuance of a permit 
covering the surface acreage to be affected.'' Thus, all areas to be 
disturbed must be covered by a bond. Further, 25 Pa. Code 86.143(c) 
provides that liability on the bond shall cover activities within the 
permit area as well as ``effects resulting from the mining of the 
permit area * * *'' Therefore, because the proposed amendment refers to 
an area of land that is as inclusive as the ``permit area,'' as defined 
in the Federal regulation, the amendment is no less effective than the 
Federal regulations at 30 CFR 773.15(c) and can be approved.

b. Deletions of Pennsylvania Regulatory Provisions With No 
Corresponding Federal Regulations or Statutes

    We are approving Pennsylvania's proposed change regarding 
performance standards for haul roads and access roads. The State 
proposed to amend its regulations at 25 Pa. Code Sections 87.160(a), 
88.138(a), 88.231(a), 88.335(a), and 90.134(a) by removing the 
requirement that a haul road's or an access road's maintenance plan 
must be approved as part of the postmining land use before the road can 
be retained at the conclusion of mining activities. We are approving 
the proposed amendment because no Federal statutory or regulatory 
requirement exists mandating that a maintenance plan for haul or access 
roads be approved as part of a postmining land use.
    30 CFR 780.37(a) and 30 CFR 784.24(a) require that each applicant 
for a surface coal mining and reclamation permit submit plans and 
drawings for each road to be constructed, used, or maintained within 
the permit area. These requirements include plans to remove and reclaim 
each road not to be ``retained under an approved postmining land use.'' 
30 CFR 780.37(a)(6), 784.24(a)(6). Thus, while these Federal provisions 
imply that a road to be retained after mining and reclamation must be 
approved as part of the postmining land use, they do not require that a 
maintenance plan for such road be approved.
    Similarly, 30 CFR 816.150(f) and 817.150(f) set forth reclamation 
requirements for roads not being retained under an approved postmining 
land use. Like 30 CFR 780.37(a) and 784.24(a), 30 CFR 816.150(f) and 
817.150(f) only refer to roads, not any associated maintenance plans, 
as being approved as part of the postmining land use. Since neither 
SMCRA or its implementing regulations require a road maintenance plan 
to be approved as part of a postmining land use, the removal of such 
requirement by Pennsylvania does not render its program inconsistent 
with, less stringent than, or less effective than corresponding Federal 
law or regulations. Therefore, we are approving the amendment.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in an April 16, 2002 
Federal Register notice, 67 FR 18518, but did not receive any specific 
comments. However, the Pennsylvania Coal Association (PCA) generally 
supported the amendment and urged us to approve it. It noted that the 
amendment will allow efficient and effective permitting and haul road 
maintenance practices.

Federal Agency Comments

    Under 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. 889.01). The Mine Safety and Health 
Administration merely noted that the modifications in the amendment 
appeared to be minor. The U.S. Environmental Protection Agency (EPA) 
stated that no apparent inconsistencies exist between the amendment and 
the Clean Water Act or other statutes or regulations under its 
jurisdiction.

(EPA) Concurrence

    Under 30 CFR 732.17(h)(11)(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

[[Page 67530]]

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 did not seek EPA concurrence 
on this amendment because we determined that it contains no such 
provisions.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On March 1, 2002, we requested comments on Pennsylvania's 
amendment (Administrative Record No. 889.01), but neither the SHPO nor 
the ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Pennsylvania 
sent us. 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 Pennsylvania 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 regulation.

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 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 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, 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 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. 
4332(2)(C)).

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, 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. 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, Federal, State, or local government agencies, or geographic 
regions; 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.


[[Page 67531]]


    Dated: September 4, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR Part 938 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 938.15 is amended in the table by adding a new entry in 
chronological order by November 6, 2002 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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                                                                      * * * * * * *
February 25, 2002.......................  November 6, 2002...............  25 Pa. Code 86.37, 87.160, 88.138, 88.231, 88.335, 90.134, 87.160.
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Sec.  938.16  [Amended]

    3. Section 938.16 is amended by removing and reserving paragraph 
(gggg).
[FR Doc. 02-28200 Filed 11-5-02; 8:45 am]
BILLING CODE 4310-05-P