[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40147-40154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17078]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-128-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with certain exceptions, 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 
regarding rules related to the criteria and procedures for designating 
areas as unsuitable for surface mining. Pennsylvania modified these 
rules to be consistent with the corresponding Federal regulations and 
SMCRA and because under its Regulatory Basics Initiative, Pennsylvania 
considered its former regulations to be unclear, unnecessary or more 
stringent than the corresponding Federal regulations.

EFFECTIVE DATE: July 7, 2003.

FOR FURTHER INFORMATION CONTACT: George Rieger, Acting Director, 
Harrisburg Field Office, telephone: (717) 782-4036, e-mail: 
[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 November 22, 1999, Pennsylvania sent us an 
amendment to its program (Administrative Record No. PA 861.03) under 
SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania sent the amendment to 
include changes made at its own initiative. The provisions of Title 25 
of the Pennsylvania Code (Pa. Code) that Pennsylvania proposed to 
revise were: 86.1 Definitions; 86.101 Definition of terms; 86.102 Areas 
where mining is prohibited or limited; 86.103 Procedures; 86.121 Areas 
designated unsuitable for mining; 86.123 Procedures: petitions; 86.124 
Initial processing, record keeping and notification requirements; 
86.125 Hearing requirements; 86.126 Decision; 86.127 Data base 
inventory system requirements; 86.128 Public information; 86.129 Coal 
exploration; and 86.130 Areas unsuitable for mining.
    We announced receipt of the proposed amendment in the December 27, 
1999, Federal Register (64 FR 72297). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on January 26, 2000. We received comments from 
three Federal agencies and one State agency. The Federal agencies were 
the U.S. Department of Labor (Mine Safety and Health Administration), 
New Stanton and Wilkes-Barre offices and the U.S. Environmental 
Protection Agency

[[Page 40148]]

(EPA), Region III. The State agency was the Pennsylvania Historical and 
Museum Commission.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment with the exception as noted below. Any 
revisions that we do not specifically discuss below concern 
nonsubstantive wording or editorial changes.

A. Minor Revisions to Pennsylvania's Rules

    Pennsylvania proposed minor changes to the following previously 
approved rules.
    Pennsylvania is adding the metric measurement equivalent to the 
standard measurements found at sections 86.101(8), (8)(ii), (10), (11), 
and (12); 86.103(c) and throughout various subsections of 86.130(b). We 
find that adding the metric equivalent will not render these 
regulations inconsistent with the Federal regulations.
    Pennsylvania is deleting the references to the Bureau of Mining and 
Reclamation at sections 86.123(c) and 86.124(d) and replacing that 
phrase with the word ``Department'' which is a reference to the 
Pennsylvania Department of Environmental Protection (PADEP). These 
changes are not inconsistent with the Federal rules because it 
clarifies the role of PADEP, which is the State regulatory authority 
that implements the coal mining program in Pennsylvania. We are 
approving these changes.

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

    Pennsylvania proposed revisions to the following rules containing 
language that is the same or similar to the corresponding sections of 
the Federal regulations.

------------------------------------------------------------------------
                                  Corresponding
 Pennsylvania rule citation    Federal regulation           Topic
------------------------------------------------------------------------
25 Pa. Code 86.1 Definitions  30 CFR 761.5........  Definition used as
 ``valid existing rights''.                          part of the
                                                     criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 762.5........  Definition used as
 Definitions ``fragile                               part of the
 lands''.                                            criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 762.5........  Definition used as
 Definitions ``historic                              part of the
 lands''.                                            criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 761.5........  Definition used as
 Definitions ``public                                part of the
 building''.                                         criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 761.5........  Definition used as
 Definitions ``public park''.                        part of the
                                                     criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 762.5........  Definition used as
 Definitions ``renewable                             part of the
 resource lands''.                                   criteria and
                                                     procedures for
                                                     designating areas
                                                     unsuitable for
                                                     surface mining.
25 Pa. Code 86.101            30 CFR 761.5........  Definition used as
 Definitions ``significant                           part of the
 recreational value, timber,                         criteria and
 economic or other values                            procedures for
 incompatible with surface                           designating areas
 mining operations''.                                unsuitable for
                                                     surface mining.
25 Pa. Code 86.102(1).......  30 CFR 761.11(a)(1)-  Areas where surface
                               (6).                  coal mining
                                                     operations are
                                                     prohibited or
                                                     limited.
25 Pa. Code 86.102(3).......  30 CFR 761.11(c)....  Areas where surface
                                                     coal mining
                                                     operations are
                                                     prohibited or
                                                     limited.
25 Pa. Code 86.102(9)         30 CFR 761.11(e) and  Areas where (c) and
 through (9)(iii).             761.15(b), surface    (d) mining
                               coal.                 operations are
                                                     prohibited or
                                                     limited.
25 Pa. Code 86.103(d).......  30 CFR 761.15(b)....  Procedures
25 Pa. Code 86.103(e),        30 CFR 761.17(d)(1)   Regulatory authority
 (e)(2)(i) and (ii).           through (d)(1)(iii).  obligations at the
                                                     time of permit
                                                     application review.
25 Pa. Code 86.121(1)         30 CFR 762.13 (a)     Areas exempt from
 through (3).                  through (c).          designation as
                                                     unsuitable for
                                                     surface mining
                                                     operations.
25 Pa. Code 86.123(c)(5)....  30 CFR 764.13(a)....  Right to petition
25 Pa. Code 86.124(c).......  30 CFR 764.15(c)....  Initial processing,
                                                     record keeping, and
                                                     notification
                                                     requirements.
25 Pa. Code 86.125(c).......  30 CFR 764.17(a)....  Burden of
                                                     Persuasion.
25 Pa. Code 86.127(b).......  30 CFR 764.21(b)....  Database and
                                                     inventory system
                                                     requirements.
------------------------------------------------------------------------

    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.
    Pennsylvania is also modifying the following definitions found at 
25 Pa. Code 86.101 by deleting some existing language and adding 
language: fragile lands, historic lands, public building, public park 
and renewable resource lands and deleting existing 86.121(a) and (b). 
Since the added language to these definitions or the new sections to 
86.121(1) through (3) are substantively identical to the Federal rules, 
we find that the deletions do not render the Pennsylvania program 
inconsistent with SMCRA or the Federal regulations.
    25 Pa. Code 86.1 Definition of Valid Existing Rights. Pennsylvania 
is deleting its existing definition of ``Valid Existing Rights'' which 
stated:

    Valid Existing Rights--Includes the following:
    (i) Except for haul roads and activities enumerated in 
subparagraph (iii), property rights in existence on August 3, 1977, 
that were created by a legally binding

[[Page 40149]]

conveyance, lease, deed, contract or other document which authorizes 
the applicant to produce minerals by a surface mining operation. The 
person proposing to conduct surface mining operations on the lands 
shall hold current State and Federal permits necessary to conduct 
the operations on those lands and either have held those permits on 
August 3, 1977, or had made by that date a complete application for 
the permits, variances and approvals required by the Department.
    (ii) For haul roads, the term includes:
    (a) A recorded right-of-way, recorded easement, or a permit for 
a haul road recorded as of August 3, 1977.
    (b) Another road in existence as of August 3, 1977.
    (iii) Coal preparation activities, and their associated haul 
roads, which were not subject to this chapter and Chapters 87-90 
prior to August 25, 1989, were in existence on or before July 6, 
1984, and were operating in compliance with applicable laws prior to 
that date.
    (iv) Interpretation of the terms of the document relied upon to 
establish valid existing rights shall be based upon the usage and 
custom at the time and place where it came into existence, and upon 
a showing by the applicant that the parties to the document actually 
contemplated a right to conduct the same underground or surface 
mining activities for which the applicant claims a valid existing 
right and that the document has been signed by the surface owner.
    (v) The term does not include the mere expectation of a right to 
conduct surface mining operations or the right to conduct 
underground coal mining.

    Pennsylvania is proposing the following language as its new 
definition: ``Rights which exist under the definition of ``valid 
existing rights'' in 30 CFR Section 761.5 (relating to areas unsuitable 
for mining).'' Pennsylvania stated in the Pennsylvania Bulletin (Pa. 
Bull.) that this ``change will conform the Commonwealth's regulations 
to the [Pennsylvania] statutes [52 P.S. 1396.4e, 52 P.S. 30.56a, and 35 
P.S. 691.315] and will make it unnecessary for the Commonwealth to 
change its definition if the Federal definition is changed.'' 29 Pa. 
Bull. 5289, 5292 (October 9, 1999). Accordingly, we find that since 
Pennsylvania is effectively incorporating OSM's definition of valid 
existing rights and will change its implementation of its definition if 
the Federal definition should change, the Pennsylvania definition is no 
less effective than the Federal regulation at 30 CFR 761.5.
    25 Pa. Code 86.124(a)(2). Pennsylvania amended this section by 
adding the sentence, ``A frivolous petition is one in which the 
allegations of harm lack serious merit.'' This language is identical to 
the language describing a frivolous petition in the Federal regulations 
at 30 CFR 764.15(a)(3). Because the language is the same as in the 
Federal regulations, we find it no less effective and we are approving 
it.
    25 Pa. Code 86.129. This section provides the requirements for 
conducting coal exploration on areas designated as unsuitable for 
surface mining operations. The section will allow coal exploration on 
areas designated as unsuitable for surface mining operations if the 
following provisions of subsections (b)(1) and (2) are met:

* * * * *
    (b) Coal exploration may be conducted on an area designated as 
unsuitable for surface mining operations in accordance with this 
chapter if the following apply:
    (1) The exploration is consistent with the designation.
    (2) The exploration will be conducted to preserve and protect 
the applicable values and uses of the area under Subchapter E 
(relating to coal exploration) and the Department has issued written 
approval for the exploration.
* * * * *

    In amending this section, Pennsylvania dropped a requirement in 
subsection (b)(2) that it would not grant approval for coal exploration 
unless the person seeking the approval has described the nature and 
extent of the proposed operation, and has described in detail the 
measures to be employed to prevent adverse effects. Even though 
Pennsylvania dropped this requirement, 25 Pa. Code 86.129 remains no 
less effective than the corresponding Federal regulation at 30 CFR 
762.15 because of its reference to 25 Pa. Code Subchapter E. Under 
Subchapter E, 25 Pa. Code 86.133(f) provides that:

* * * * *
    (f) Coal exploration on lands where a petition to declare an 
area unsuitable for mining has been received by the Department or on 
lands designated unsuitable for mining shall by conducted only after 
written approval is granted by the Department. The Department may 
prescribe conditions and requirements necessary to preserve the 
values sought to be protected in the petition before approving coal 
exploration in these areas. The exploration activities shall be 
conducted in accordance with Sec.  86.129 (relating to coal 
exploration) to insure that the exploration activity does not 
interfere with a value for which the area has been designated 
unsuitable for mining.
* * * * *

    Taken together, the provisions of 25 Pa. Code 86.133(f) and 25 Pa. 
Code 86.129 provide the same level of protection as the Federal 
regulations at 30 CFR 762.15 regarding coal exploration on lands 
unsuitable for surface coal mining. The Federal regulations require 
approval under the State's equivalent to the Federal coal exploration 
regulations at 30 CFR part 772 to ensure that the exploration does not 
interfere with any value for which the area has been designated 
unsuitable for surface coal mining. We find it no less effective than 
the Federal rule and we are approving the change to this section.

C. Revisions to Pennsylvania's Rules That Are Not the Same as the 
Corresponding Provision of the Federal Regulations

    25 Pa. Code 86.101 Definitions. The definition of ``surface mining 
operations'' has been modified by deleting the following phrase at the 
end of the definition: ``* * *and activities involved in or related to 
underground coal mining which are conducted on the surface of the land, 
produce changes in the land surface, or disturbs the surface, air or 
water resources of the area.'' The definition now reads:

    The extraction of coal from the earth or from waste or stock 
piles or from 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 and auger mining, dredging, quarrying and leaching and surface 
activity connected with surface or underground coal mining, 
including, but not limited to, exploration, site preparation, entry, 
tunnel, slope, drift, shaft and borehole drilling and construction 
and activities related thereto, coal refuse disposal, coal 
processing and preparation facilities.

    This definition only applies to subchapter D of 25 Pa. Code Chapter 
86 and was revised to eliminate the inconsistency between 
Pennsylvania's definition and our interpretative rulemaking on 
activities applicable to section 522(e) of SMCRA. 29 Pa. Bull. 5289, 
5290 (October 9, 1999). Our interpretative rule found at 30 CFR 
761.200(a) states ``[s]ubsidence due to underground coal mining is not 
included in the definition of surface coal mining operations under 
section 701(28) of the Act and 700.5 of this chapter and therefore is 
not prohibited in areas protected under section 522(e) of the Act.'' In 
the preamble to the interpretative rule we noted that ``we interpret 
the definition of ``surface coal mining operations'' at SMCRA section 
701(28)(A) and in the analogous portion of the existing rules at 30 CFR 
700.5 not to include subsidence, and to include only: (1) Activities on 
the surface of lands in connection with a surface coal mine; and (2) 
Activities subject to section 516, conducted on the surface of lands in 
connection with surface

[[Page 40150]]

operations and surface impacts incident to an underground coal mine, 
the products of which enter commerce or the operations of which 
directly or indirectly affect interstate commerce.'' (64 FR 70838, 
70844 (12/17/99)).
    Even though Pennsylvania's revised definition of surface mining 
operations removes the inclusion of activities involved in or related 
to underground mining it still includes surface activity connected with 
underground mining. In the Pennsylvania Bulletin, Pennsylvania states 
``[i]n the definition of ``surface mining operations,'' the reference 
to activities related to underground coal mining that affect the land 
surface has been deleted to clarify that surface mining operations do 
not include any surface effects of underground mining resulting from 
activities that were conducted beneath the land surface.'' 29 Pa. Bull. 
5292. Pennsylvania maintains that its rulemaking ``is consistent with 
Federal requirements and that it addresses the difference between the 
physical characteristics of mining activities conducted on the surface 
as opposed to underground.'' Id. Accordingly, we are approving the 
deletion of this language with the understanding that Pennsylvania will 
implement the definition of ``surface mining operations'' in the same 
manner as contemplated by 30 CFR 761.200(a) and find the deletion not 
inconsistent with the Federal regulations.
    25 Pa. Code 86.102(11). This section provides that surface mining 
operations are not permitted within 100 feet of a cemetery unless there 
is valid existing rights. In addition to this existing restriction, 
Pennsylvania is adding that cemeteries may be relocated under 9 P.S. 
41-52. The Federal counterpart at 30 CFR 761.11(g), also states that 
mining cannot occur within 100 feet of a cemetery unless there is valid 
existing rights and unless the cemetery is relocated in accordance with 
all applicable laws and regulations. Pennsylvania's added language is 
consistent with the Federal regulation because it allows for the 
relocation of a cemetery and we are approving the change.
    25 Pa. Code 86.124(f) Procedures: Hearing requirements. This 
section provides that the Department will prepare a recommendation on 
each complete petition received under this section and submit it to the 
Environmental Quality Board (EQB) within 12 months of receipt of the 
complete petition. This section could be viewed as less effective than 
the Federal regulations at 30 CFR 764.19(b) which require that, ``a 
final written decision shall be issued by the regulatory authority, 
including a statement of the reasons, within 60 days of completion of 
the public hearing, or, if no public hearing is held, then within 12 
months after receipt of the complete petition. However, the enabling 
legislation for this section of the Pennsylvania regulations is located 
within Pennsylvania's SMCRA, at 52 P.S. section 1396.4e(f) which 
states, ``Within ten (10) months after receipt of the petition, the 
Department shall hold a public hearing * * * within sixty (60) days 
after such hearing, the Department shall issue and furnish the 
petitioners and any other party to the hearing, a written decision 
regarding the petition and the reasons therefore.'' This language has 
been previously determined to be consistent with, and no less effective 
than, SMCRA and the Federal regulations. With the Pennsylvania 
statutory language consistent with Federal law and regulations, we are 
not approving the revision in regulations to the extent that it could 
be interpreted as inconsistent with the enabling Pennsylvania statute 
and less stringent than SMCRA and the implementing regulations. We 
expect that Pennsylvania will continue to process unsuitability 
petitions in a manner consistent with State law.
    25 Pa. Code 86.125 Procedures: Hearing requirements. Pennsylvania 
deleted the requirement at subsection (b) for a verbatim transcript of 
the petition hearing and moved the requirement to subsection (d). These 
changes are consistent with the Federal rule at 30 CFR 764.17(a) which 
requires a record of the petition hearing to be made and preserved 
according to State law.
    Pennsylvania revised subsection (e) [renumbered from (b) to (e)] to 
provide that PADEP will give notice of the hearing by first class mail 
and also revised subsection (e)(3) to indicate the notice is to be sent 
to persons known to PADEP to have an ownership or other interest in the 
area covered by the petition. This is no less effective than the 
Federal regulations at 30 CFR 764.17(b)(2) which requires notice of the 
hearing to property owners by first class mail. Pennsylvania deleted 
the first class mail notification requirement of (e)(4) to the 
petitioner and intervenors and added subsection (f), which requires 
that notice of the hearing by certified mail shall be given to the 
petitioner and intervenors. These changes are no less effective than 
the Federal rules.
    At subsections (g) and (h), Pennsylvania is changing some of the 
hearing responsibilities from the EQB to PADEP. Pennsylvania is also 
making editorial changes at subsections (i) and (k). All of these 
changes do not render the Pennsylvania regulations inconsistent with 
the Federal regulations and we approving the changes.
    Subsection (j) was revised to read as follows:

* * * * *
    (j) Within 60 days of the close of the public comment period, 
the Department will prepare a recommendation to the EQB, including a 
statement of the reasons for the recommendation and provide written 
notice of its recommendation to the petitioners and intervenors.
* * * * *

    For a full discussion of our finding on the time frames for 
providing a written notice to petitioners and intervenors, see the 
discussion under 25 Pa. Code 86.124(f) above. Section 86.125(j) is not 
approved to the same extent that 25 Pa. Code 86.124(f) is not approved.
    25 Pa. Code 86.126 Procedures: Decision. Subsections (b) and (b)(1) 
were revised and subsection (b)(2) was added. These sections now read:

    (b) The EQB will promptly send the decision by certified mail to 
the petitioner, intervenors and to the Office of Surface Mining 
Reclamation and Enforcement.
    (1) If the decision is to designate an area as unsuitable for 
surface mining operations, the EQB will deposit and publish its 
decision as a regulation in the manner required by the Regulatory 
Review Act (71 P. S. sections 745.1--745.15); the act of July 31, 
1968 (P. L. 769, No. 240) (45 P. S. sections 1102, 1201--1208 and 
1602) known as the Commonwealth Documents Law and 45 Pa.C.S. Part I 
(relating to publication and effectiveness of Commonwealth 
documents).
    (2) If the decision is not to designate an area as unsuitable 
for surface mining operations, the EQB will publish its decision in 
the Pennsylvania Bulletin within 30 days.

    In 25 Pa. Code 86.126(b), Pennsylvania deleted the following 
provision: ``A final written decision in the form of a regulation will 
be issued by the EQB within 60 days following the public hearing, 
including a statement of reasons for the decision.'' We are approving 
this deletion because of the finding we made with regard to issuance of 
final decisions in 25 Pa. Code 86.124(f) above. As we noted in 25 Pa. 
Code 86.124(f), we expect that Pennsylvania will continue to process 
unsuitability petitions in a manner consistent with State law.
    The changes to these subsections specify who will be sent the 
decision, the appropriate documents where EQB's decisions are to be 
published and under what authority. The Federal rule at 764.19(b) 
requires that the final written decision shall be sent by certified 
mail

[[Page 40151]]

to the petitioner, intervenors and by regular mail to all other persons 
involved in the proceeding. OSM was concerned that Pennsylvania's 
regulation failed to provide notification of the decision by regular 
mail to all other persons involved in the proceeding. In a letter dated 
February 13, 2002 (Administrative Record No. PA 861.10), Pennsylvania 
noted that the Pennsylvania Regulatory Review Act (71 P.S. 745.1 et 
seq. required notification to all interested parties. See, 71 P.S. 
745.5a. Accordingly, we find that the inclusion of this information 
does not make Pennsylvania's program inconsistent with the Federal 
regulations at 30 CFR 764.19(b) and we are approving it.

D. Revisions to Pennsylvania's Rules With No Corresponding Federal 
Regulations

    25 Pa. Code 86.102(4). Subsection (4) was modified by inserting the 
phrase, ``the Department of Conservation and Natural Resources and'' 
before the words, ``the Department.'' The section now reads: ``On lands 
within the State park system. Surface mining activities may be 
permitted if the Department of Conservation and Natural Resources and 
the Department find that significant land and water conservation 
benefits will result when remining of previously mined land is 
proposed.''
    The Department of Conservation and Natural Resources is now 
included in the decision on whether mining will be prohibited on 
certain State lands. There is no Federal counterpart to this 
subsection. We find that this addition does not make this rule 
inconsistent with the Federal regulations.
    25 Pa. Code 86.102(5) was modified by inserting the, `` * * * 
Department of Conservation and Natural Resources and the * * *'' before 
the word, ``Department.'' This section now reads:

* * * * *
    (5) On lands within State forest picnic areas, State forest 
natural areas and State forest wild areas. Surface mining operations 
may be permitted on State forestlands other than picnic areas, 
natural areas and wild areas, if the Department of Conservation and 
Natural Resources and the Department find that one or more of the 
following apply:
    (i) There will be no significant adverse impact to natural 
resources, including timber, water, wildlife, recreational and 
aesthetic values.
    (ii) Significant land and water conservation benefits will 
result when remining of previously mined lands is proposed.
* * * * *

    The Department of Conservation and Natural Resources is now 
included in the decision on whether mining will be prohibited on 
certain State lands. There is no Federal counterpart to this 
subsection. We find that this addition does not make this rule 
inconsistent with the Federal regulations.
    25 Pa. Code 86.130 Areas designated as unsuitable for mining. 
Pennsylvania corrected two regulatory references in this section by 
adding the description of that reference.
    Section 86.130 is the section where Pennsylvania publishes the 
results of EQB's decisions designating areas as unsuitable for all or 
certain types of surface mining operations. There are no comparable 
provisions in the Federal regulations requiring publication of the 
designations. Publication will insure that the designations are 
available for all interested persons to review. As a result, we find 
that this section is not inconsistent with the Federal regulations and 
we are approving it.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. PA 861.03), but we did not receive any.

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. PA 861.04). The Department of Labor, Mine 
Safety and Health Administration (MSHA), New Stanton Office, provided 
comments by letter dated December 17, 1999 (Administrative Record No. 
PA 861.07). The comments included one substantive comment that 
requested changing the reference in the Federal regulations to the 
definition of ``Valid Existing Rights'' (VER) to actually insert the 
language redefining VER.
    We have considered this comment and believe that requiring 
Pennsylvania to delete the reference to 30 CFR and inserting the 
language does not have any effect on the proposed revision to the 
Pennsylvania program. Therefore, we will not request Pennsylvania to 
change this reference.
    By letter dated December 6, 1999, (Administrative Record No. PA 
861.05) MSHA's Wilkes-Barre office, stated that nothing conflicted with 
existing MSHA regulations.

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(i) we requested comments on the 
amendment from EPA (Administrative Record No. PA 861.04). EPA responded 
on December 15, 1999, that the amendments appeared to comply with the 
Clean Water Act (Administrative Record No. PA 861.06).

The Pennsylvania Historical and Museum Commission (PHMC)

    PHMC submitted comments by letter dated February 26, 1999 
(Administrative Record No. PA 861.01) with a follow up letter dated 
December 7, 1999 (Administrative Record No. PA 861.09) resubmitting 
their earlier comments. The comments submitted include:
    1. The proposed change in the definition of a completed application 
at 25 Pa. Code 86.1 weakens Pennsylvania's requirements by only 
requiring an applicant for a permit application to complete forms 
addressing each requirement of the application instead of 
``demonstrating compliance with applicable statutes and regulations.''
    We have determined that the comment addresses an issue that is not 
in this program amendment. Since it is outside the scope of the 
amendment, we are not required to address this comment.
    2. The revision to the definition of valid existing rights in 25 
Pa. Code 86.1 deletes nearly all descriptions of what are valid rights 
for people and agencies and replaces them with a line indicating that 
valid existing rights are rights which exist under the definition of 
valid existing rights in 30 CFR 761.5. PHMC wants to retain the old 
definition, or repeat verbatim, the Federal definition so the rights of 
the people or agencies are clear.
    PHMC is correct in noting the change. However, OSM's standard for 
review of amendments to State program regulations are whether the 
regulations are no less effective than the corresponding Federal 
regulations in meeting the requirements of SMCRA (see 30 CFR 730.5). 
Pennsylvania's inclusion of the reference to the Federal regulations in 
the definition of valid existing rights makes it no less effective than 
the Federal regulations because it now includes all rights as protected 
by Federal regulation.
    3. The change to the definition of fragile lands in 25 Pa. Code 
86.101 adds the stipulation that the damage to these properties be 
significant. This is inconsistent with Federal Section 106 statutes, 
which applies when there is an impact to cultural resources. Also the 
deletion of language that provides protection to buffer areas 
surrounding fragile lands is unacceptable.
    As with Pennsylvania's change to the definition of valid existing 
rights, the

[[Page 40152]]

change in definition to fragile lands is based on the Federal 
definition of fragile lands at 30 CFR 762.5. The Federal definition 
also describes areas that could be significantly damaged by surface 
coal mining operations. We have found that Pennsylvania's definition of 
fragile lands is no less effective than the Federal definition. As for 
the deletion of the buffer zone provisions of Pennsylvania's 
definition, there is no such similar provision in the Federal 
regulations. As a result, we cannot require Pennsylvania to retain the 
buffer zone protections because its deletion will not make 
Pennsylvania's program less effective than Federal regulations.
    4. The revision to the definition of historic lands should include 
additional examples of what constitutes historic lands to include 
``historic or cultural districts and paleontological sites'' at 25 Pa. 
Code 86.101.
    We have considered this comment and find that the definition is 
substantively identical to, and no less effective than, the Federal 
definition of ``historic lands'' found at 30 CFR 762.5.
    5. The proposed revision to the definition of surface mining 
operation at 25 Pa. Code 86.101 deletes references to surface impacts 
by underground mining, which is not consistent with SMCRA or the 
Federal regulations.
    As stated in our findings, we promulgated a rule on December 17, 
1999, at 30 CFR 761.200(a), concerning our interpretation of the 
definition of surface coal mining operations. Please refer to that 
finding for further discussion of the interpretative rule and its 
application. As previously discussed, we are approving the deletion of 
the language with the understanding that Pennsylvania will implement 
the definition of ``surface mining operations'' in the same manner as 
contemplated by 30 CFR 761.200(a).
    6. The deletion of the words ``on or eligible for inclusion'' to 
the National Register of Historic Places at 25 Pa. Code 86.102(3), so 
that only sites included on the National Register are protected from 
mining, conflicts with Section 106 of the National Historic 
Preservation Act and 36 CFR 800.2.
    The Federal rule at 30 CFR 761.11(c) does not prohibit mining that 
may affect places eligible for listing on the National Register of 
Historic Places. The Federal rule only prohibits mining that will 
affect places listed on the National Register of Historic Places. 
Therefore, we find the proposed revision consistent with Federal law.
    7. Revising the regulations at 25 Pa. Code 86.103(e) that require 
the Department to notify Federal, State, or Local Agencies with 
jurisdiction over a publicly owned park or place on the National 
Register of Historic Places when it is determined that the adverse 
effects will adversely affect the park or place.
    The revision by Pennsylvania is to delete ``may'' and insert 
``will'' with respect to adversely affect. The Federal regulation at 30 
CFR 761.11(d) does not require procedures for joint approval when the 
publicly owned park or the historic place may be adversely affected by 
coal mining operations. The Federal rules only require such approval 
when it will affect such properties. Accordingly, as we have determined 
in the findings, the proposed revision is no less effective than 30 CFR 
761.11(d).
    The PHMC also wants the old language of ``historic'' retained in 
this section. However, the deletion of the word ``historic'' is 
consistent with the Federal language at 30 CFR 761.11(d). Additionally, 
Pennsylvania has retained the reference to the National Register of 
Historic Places.
    8. The changes to 25 Pa. Code 86.121 regarding criteria and 
procedures for designating areas unsuitable for mining does not 
adequately protect cultural resources because of its emphasis from 
areas designated as unsuitable for surface mining operations to areas 
exempt from designation as unsuitable for mining.
    Pennsylvania's changes to 25 Pa. Code 86.121 make that section mean 
the same as the corresponding Federal regulation at 30 CFR 762.13. 
Because the meaning of that section is the same as the Federal 
regulation, we have found it to be no less effective than the Federal 
regulation and we approved it. We did not find that Pennsylvania's 
change provides less protection to cultural resources.
    9. The revisions at 25 Pa. 86.123(c)(5) that give the right to 
petition only to people who can demonstrate an ``injury in fact'' was 
objected to because the PHMC believes such a test makes it so that only 
individuals who own property can petition to have land designated as 
unsuitable for mining.
    Pennsylvania's ``injury in fact'' test is substantively identical 
to the Federal ``injury in fact'' test at 30 CFR 764.13(a). In its 
submission, Pennsylvania indicated that the purpose for adding this 
language is to make the section consistent with the Federal rules. We 
have determined that the proposed revision is one of the criteria for 
the right to petition for lands unsuitable. Therefore, we are finding 
that this proposed change is no less effective than the Federal 
regulations.
    10. The PHMC objects to all the changes where the EQB was replaced 
by PADEP. PHMC objects to making PADEP responsible for hearing lands 
unsuitable petitions as would be required in 25 Pa. Code 86.124(c) and 
86.125(a) instead of EQB as formerly required.
    The Federal regulations at 30 CFR 764.17 require the regulatory 
authority to conduct hearings. In Pennsylvania, the regulatory 
authority is PADEP. As a result, Pennsylvania's change does not make it 
less effective than the corresponding Federal regulations.
    11. The PHMC objects to coal exploration within areas designated 
unsuitable for mining at 25 Pa. Code 86.129(b) and believes it would 
directly impact cultural resources. The Federal regulations at 30 CFR 
762.15 allow coal exploration operations within areas designated 
unsuitable for mining if such operations are conducted in accordance 
with the regulatory program. Pennsylvania's regulations at 25 Pa. Code 
86.129 and 86.133 require that the exploration will be conducted to 
preserve and protect the applicable values and uses of the area. 
Therefore, there will be no impact to such cultural resources. We find 
that the proposed revisions are no less effective than 30 CFR 762.15.

V. OSM's Decision

    Based on the above findings, we approve, with the exceptions noted 
below, the amendment Pennsylvania sent us on November 22, 1999, that 
was clarified by letter dated February 13, 2002.
    We do not approve 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) 
to the extent that these sections would allow Pennsylvania more time to 
complete a final written decision on a lands unsuitable for surface 
mining activities petition than is allowed by the provisions of the 
Federal regulations at 30 CFR 764.19(b).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 938, which codify decisions concerning the Pennsylvania 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly,

[[Page 40153]]

30 CFR 732.17(a) requires that any change of an approved State program 
be submitted to OSM for review as a program amendment. The Federal 
regulations at 30 CFR 732.17(g) prohibit any changes to approved State 
programs that are not approved by OSM. In the oversight of the 
Pennsylvania program, we will recognize only the statutes, regulations, 
and other materials we have approved, together with any consistent 
implementing policies, directives, and other materials. We will require 
Pennsylvania to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, these provisions have the same takings implications 
as the Federal valid existing rights rule. The takings implications 
assessment for the Federal valid existing rights rule appears in Part 
XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, 
December 17, 1999. The provisions in the rule based on other 
counterpart Federal regulations do not have takings implications. This 
determination is based on the analysis performed for the counterpart 
Federal regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 Sec. Sec.  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 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. 
Pennsylvania does not regulate any Native Tribal lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    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 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 
Pennsylvania 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 
Pennsylvania 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.

[[Page 40154]]

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 9, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
2. Section 938.12 is amended by adding paragraph (b) as follows:


Sec.  938.12  [Amended]

* * * * *
    (b) We are not approving the following portions of provisions of 
the proposed program amendment that Pennsylvania submitted on November 
22, 1999:
    (1) Sections 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) are 
not approved to the extent that these sections would allow Pennsylvania 
more time to complete a final written decision on a lands unsuitable 
for surface mining activities petition than is allowed by the 
provisions of the Federal regulations at 30 CFR 764.19(b).

0
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.

* * * * *

 
----------------------------------------------------------------------------------------------------------------
  Original amendment  submission
               date                    Date of final publication                 Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
November 22, 1999................  July 7, 2003.....................  25 Pa. Code 86.1 definition of ``valid
                                                                       existing rights;'' 86.101 definitions of
                                                                       ``fragile lands,'' ``historic lands,''
                                                                       ``public building,'' ``public park,''
                                                                       ``renewable resource lands,''
                                                                       ``significant recreational value, timber,
                                                                       economic or other values incompatible
                                                                       with surface mining operations,'' and
                                                                       ``surface mining operations;'' 86.102(1),
                                                                       (3) through (5), and (7) through (12);
                                                                       86.103(c), (d), and (e); 86.121,
                                                                       86.123(c) and (c)(5); 86.124(a), (c), (d)
                                                                       and (f); 86.125; 86.126; 86.127; 86.128;
                                                                       86.129; and 86.130(b).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 03-17078 Filed 7-3-03; 8:45 am]
BILLING CODE 4310-05-P