[Federal Register Volume 68, Number 123 (Thursday, June 26, 2003)]
[Proposed Rules]
[Pages 37987-37990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16101]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-144-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 a proposal to remove a required amendment.

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SUMMARY: We are announcing the proposed removal of a required amendment 
to the Pennsylvania regulatory program (the ``Pennsylvania program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). The amendment required Pennsylvania to demonstrate that the 
revenues generated by its collection of the reclamation fee will assure 
that the Surface Mining Conservation and Reclamation Fund (Fund) can be 
operated in a manner that will meet the alternative bonding system 
requirements contained in the Federal regulations. In addition, the 
amendment required Pennsylvania to clarify the procedures to be used 
for bonding the surface impacts of underground mines and the procedures 
to reclaim underground mining permits where the operator has defaulted 
on the obligation to reclaim.
    This document gives the times and locations that the Pennsylvania 
program is available for your inspection, the comment period during 
which you may submit written comments on the amendment, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
e.s.t. July 28, 2003. If requested, we will hold a public hearing on 
the amendment on July 21, 2003.
    We will accept requests to speak at a hearing until 4 p.m., e.s.t. 
on July 11, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger, Acting Director, 
Harrisburg Field Office at the address listed below.
    You may review copies of the Pennsylvania program, a listing of any 
scheduled public hearings, and all written comments received in 
response to this document at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays.

George Rieger, Acting Director, Harrisburg Field Office, Office of 
Surface Mining Reclamation and Enforcement, Harrisburg Transportation 
Center, Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, 
Pennsylvania 17101, Telephone: (717) 782-4036, Internet: 
[email protected].
Joseph 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. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
I. 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 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 of 
the Pennsylvania program 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. Description of the Proposed Action

    In the May 31, 1991, Federal Register (56 FR 24687), we required 
Pennsylvania to amend its program as described above in the SUMMARY 
section. We required the amendment, which is codified at 30 CFR 
938.16(h), as a result of our review of changes Pennsylvania made to 
its program at 25 Pennsylvania Code (Pa. Code) 86.17. This section of 
Pennsylvania's regulations describes permit and reclamation fees. In 
1991, Pennsylvania amended 25 Pa. Code 86.17 in four ways by: (1) 
Clarifying that a per acre reclamation fee is required in addition to 
the bond required under 25 Pa. Code sections 86.145, 86.149 and 86.150; 
(2) Exempting the underground mining operations from the requirement to 
pay the $50 reclamation fee; (3) Adding a statement that the 
reclamation fee may be paid, as acreage within the mining permit is 
authorized for mining; and (4) Requiring that the reclamation fee 
deposited in the Surface Mining Conservation and Reclamation Fund shall 
only be used for reclaiming mining operations which have defaulted on 
their obligation to reclaim.
    In the 1991 rulemaking, we indicated that the proposed revisions 
raised questions concerning the ability of Pennsylvania's alternative 
bonding system (ABS) to meet the requirements of 30 CFR 800.11(e) (56 
FR at 24689). Specifically, the proposed revisions exempt underground 
mining operations from the requirement to submit the $50 reclamation 
fee without also excluding the use of the funds generated from the fee 
to reclaim the surface effects of underground mines that default on 
their obligation to reclaim.
    Also in the 1991 rulemaking, we mentioned a letter we wrote to 
Pennsylvania on January 15, 1991, (Administrative Record No. PA 799.00) 
in which we noted our concerns regarding the adequacy of Pennsylvania's 
ABS. Specifically, we noted that the ABS must be modified to provide 
the resources needed to reclaim existing permanent program forfeiture 
sites within a reasonable timeframe and to ensure that future 
forfeiture sites will be reclaimed in a timely manner. These resources 
must be sufficient to complete the reclamation plan approved in the 
permit.
    Pennsylvania responded, by letter dated February 27, 1991 
(Administrative Record No. PA 779.01), with information pertaining to 
its ABS. The response reported that analysis of the solvency of the ABS 
for 1989 and 1990 showed a deficit in the fund in both years. 
Pennsylvania also noted that all adjudicated and final forfeitures have 
been or are in the contracting process, and that it is taking action to 
eliminate the deficit.
    Because of the concerns regarding the effect of the revision of 25 
Pa. Code 86.17 to exempt underground mines from payment of the $50 
reclamation fee and the ability of the Fund to meet the requirements of 
30 CFR 800.11(e), and

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in consideration of the State's findings regarding the solvency of this 
Fund, we conditionally approved the amendment on May 31, 1991, with the 
requirements as noted in 30 CFR 938.16(h).
    Subsequent to the May 31, 1991, decision discussed above, our 
continuing oversight activities determined that the Pennsylvania ABS 
contained unfunded reclamation liabilities for backfilling, grading, 
and revegetation. In addition, our oversight determined that the ABS 
was financially incapable of abating or treating pollutional discharges 
from bond forfeiture sites. Based upon oversight findings and 
consistent with 30 CFR 732.17, we notified Pennsylvania on October 1, 
1991 (Administrative Record No. PA 802.00), that the Pennsylvania ABS * 
* * [was] ``no longer in conformance with SMCRA (section 509) and 
Federal regulations.'' [30 CFR 800.11(e)] The notice concluded that the 
Pennsylvania Department of Environmental Protection (PADEP) must submit 
either proposed amendments or a description of amendments to be 
proposed to remedy the ABS deficiencies, together with a timetable for 
adoption and implementation consistent with the established 
administrative procedures in Pennsylvania. The notice also required 
that the PADEP submission must include provisions for an actuarial 
study of a scope sufficient to address the identified concerns.
    Our required amendment at 30 CFR 938.16(h) required Pennsylvania to 
submit information, sufficient to demonstrate that the revenues 
generated by the collection of the reclamation fee, as amended in 25 
Pa. Code Section 86.17(e), will assure that the Fund can be operated in 
a manner that will meet the requirements of 30 CFR 800.11(e). We stated 
that Pennsylvania could provide such a demonstration through an 
actuarial study showing the Fund's soundness or financial solvency.
    As a result, by letter dated June 5, 2003 (Administrative Record 
No. PA 802.27), PADEP provided a document to us entitled: Pennsylvania 
Bonding System Program Enhancements. PADEP asserts that the information 
in this document, developed jointly by OSM and PADEP, will satisfy our 
concerns as to whether the Fund can be operated in a manner that will 
meet the requirements of 30 CFR 800.11(e). For that reason, the PADEP 
stated that the program enhancements it had implemented should be 
sufficient to satisfy the concerns we expressed in our October 1, 1991, 
Part 732 Notification letter. Specifically, PADEP has, within existing 
statutory and regulatory authorities, implemented a number of bond 
system and program enhancements to cover both land reclamation and 
post-mining discharge treatment on existing active/inactive permits and 
forfeited sites. Pennsylvania's efforts include:
    Revising the Conventional Bonding System--Pennsylvania has revised 
the conventional bonding system (CBS) for all active/inactive permits. 
Pennsylvania's revised CBS contains two components: A full cost/
conventional bond for land reclamation and a water treatment bond based 
on revised bond rate guidelines.
    Conversion to CBS--Pennsylvania has converted all active permits 
and is completing the conversion of the inactive permits that operated 
under the ABS to a full cost bond under the CBS.
    Funding for ABS Forfeiture Land Reclamation--Pennsylvania has 
provided general revenue funding to address the land reclamation 
funding shortfall on primacy bond forfeiture sites.
    ABS Primacy Forfeiture Discharge Abatement--Pennsylvania has 
developed a plan to address long-term pollutional discharges on ABS 
primacy bond forfeiture sites. The plan will use existing reclamation 
and funding mechanisms to abate discharges through a watershed 
approach.
    Mandatory Bond Adjustment--Pennsylvania is proposing to replace the 
discretionary bond adjustment language in 25 Pa. Code Section 86.152(a) 
with the Federal mandatory bond adjustment language. This change, which 
we will consider in a future rulemaking, will ensure that bonds on 
sites under the CBS will contain sufficient funds to allow PADEP to 
complete the reclamation plan in the event of forfeiture.
    Also, PADEP performed both an actuarial study and an internal 
review of the Pennsylvania bonding program. The actuarial study was 
completed in September 1993, and the internal review resulted in a 
report issued in February 2000 titled: Assessment of Pennsylvania's 
Bonding Program for Primacy Coal Mining Permits.
    On June 12, 2003 (Administrative Record No. PA 802.29), we sent a 
letter to the Secretary of the PADEP, informing her that the State's 
bonding program enhancements are sufficient to satisfy the concerns 
contained in our October 1, 1991, Part 732 Notification Letter. That 
1991 letter dealt with the same subject matter, i.e., the solvency of 
the State's Surface Mining Conservation and Reclamation Fund, as does 
the first portion of the required amendment at 30 CFR 938.16(h). Since 
we are now satisfied that the State's bonding program enhancements 
adequately address our concerns about the ability of the bonding 
program to ensure the completion of the reclamation plans for all 
operations on which the operators default on their obligations to 
reclaim, we are proposing the removal of the first portion of 30 CFR 
938.16(h).
    Finally, a second letter dated June 5, 2003, from PADEP 
(Administrative Record No. PA 802.28) contained a clarification 
concerning the procedures Pennsylvania uses for bonding the surface 
impacts of underground mines and the procedures to reclaim underground 
mining permits where the operator has defaulted on the obligation to 
reclaim, also required by 30 CFR 938.16(h). At the time we issued the 
required amendment, we were concerned that the $50 reclamation fee 
would be used to reclaim the surface effects of underground mine 
forfeitures. We are proposing herein to remove the remaining portion of 
the required amendment based upon this clarification.
    In summary, our required amendment at 30 CFR 938.16(h) required 
Pennsylvania to submit information sufficient to demonstrate that the 
revenues generated by the collection of the reclamation fee, as amended 
in 25 PA Code 86.17(e), will assure that the Fund can be operated in a 
manner that will meet the requirements of 30 CFR 800.11(e). We stated 
that Pennsylvania could provide such a demonstration through an 
actuarial study showing the Fund's soundness or financial solvency. In 
addition, Pennsylvania shall clarify the procedures to be used for 
bonding the surface impacts of underground mines and the procedures to 
reclaim underground mining permits where the operator has defaulted on 
the obligation to reclaim.
    Based upon the information contained in PADEP's letter of June 5, 
2003, which was submitted to address OSM's October 1, 1991, notice 
under 30 CFR 732.17 and OSM's May 31, 1995, follow-up letter, and based 
upon PADEP's second letter dated June 5, 2003 (Administrative Record 
No. PA 802.28), we are proposing the removal of the required amendment 
at 30 CFR 938.16(h).

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether OSM should consider the information submitted by 
Pennsylvania sufficient to satisfy the required amendment at 30 CFR 
938.16(h). Because we decided on June 12, 2003, that PADEP's bonding

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program enhancements satisfy the concerns expressed in our October 1, 
1991, Part 732 Notification Letter, we are not seeking comments on the 
adequacy of those bonding program enhancements.

Written Comments

    Send your written or electronic 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 will 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 Harrisburg Field Office may not be logged 
in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. PA-144-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 Harrisburg Field 
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., e.s.t. on July 
11, 2003. 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 a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the 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 amendment, 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 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. 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. 
This proposed rule applies only to the Pennsylvania program and 
therefore does not affect tribal programs.

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

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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 governmental 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.

    Dated: June 12, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-16101 Filed 6-25-03; 8:45 am]
BILLING CODE 4310-05-P