[Federal Register Volume 68, Number 183 (Monday, September 22, 2003)]
[Proposed Rules]
[Pages 55134-55137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23985]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-141-FOR]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; public comment period and notice of public 
hearing on a proposed action.

-----------------------------------------------------------------------

SUMMARY: We are proposing to supersede portions of Pennsylvania's 
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) because 
they are inconsistent with the requirements of the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). In this 
proposed rule, we are asking for comments regarding the proposed 
supersession. In a separate proposed rulemaking also published today, 
we are asking for comments on changes Pennsylvania is proposing to make 
to its regulations related to the implementation of BMSLCA as well as 
clarifications to those regulations. We will be holding public hearings 
on both the proposal for superseding certain provisions of BMSLCA, as 
noted below, and Pennsylvania's proposed changes to its regulations on 
the dates indicated under DATES. Pennsylvania will also be holding 
public hearings on its proposed changes to its regulations. In order to 
accommodate those who wish to speak at both Pennsylvania's and our 
public hearings, the hearings will be held on the same days and at the 
same locations, but at different times.
    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 this proposed action, and the 
procedures that we will follow for the public hearings.

DATES: We will accept written comments on this proposal until 4 p.m., 
e.s.t., October 22, 2003. We will hold public hearings on the proposal 
on October 15, 2003, at the Best Western University Inn in Indiana, 
Pennsylvania,

[[Page 55135]]

at 3 p.m. and at 7 p.m. and on October 16, 2003, at the Holiday Inn 
Meadow Lands in Washington, Pennsylvania, at 3 p.m. and at 7 p.m. We 
will accept requests to speak at a hearing until 4 p.m., e.s.t. on 
October 7, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger, Acting Field Office 
Director at the address listed below.
    You may review copies of the Pennsylvania program, this proposal, 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, E-mail: 
[email protected]
Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, PO Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5103

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

SUPPLEMENTARY INFORMATION: 
I. Background on the Pennsylvania Program
II. Description of the Proposed Action
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 program 
and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Description of the Proposed Action

    Pursuant to section 505(b) of SMCRA and 30 CFR 730.11(a), we are 
proposing to supersede portions of the following sections of BMSLCA as 
detailed below: 5.1(b)(52 P.S. 1406.5a(b)), 5.2(g)(52 P.S. 1406.5b(g)), 
5.2(h)(52 P.S. 1406.5b(h)), 5.4(a)(3)(52 P.S. 1406.5d(a)(3)), 5.4(c)(52 
P.S. 1406.5d(c)), 5.5(b)(52 P.S. 1406.5e(b)).
    Section 5.1(b). We are proposing to supersede section 5.1(b) to the 
extent it would apply to water supplies covered under section 720 of 
SMCRA. Section 5.1(b) provides that:

    (b) A mine operator shall not be liable to restore or replace a 
water supply under the provisions of this section if a claim of 
contamination, diminution or interruption is made more than two 
years after the supply has been adversely affected.

    Section 5.2(g). We are proposing to supersede section 5.2(g) of 
BMSLCA to the extent that it would remove an operator's liability to 
restore or replace a water supply covered under section 720 of SMCRA. 
Section 5.2(g) provides that:

    (g) If an affected water supply is not restored or reestablished 
or a permanent alternate source is not provided within three years, 
the mine operator may be relieved of further responsibility by 
entering into a written agreement providing compensation acceptable 
to the landowner. If no agreement is reached, the mine operator, at 
the option of the landowner, shall:
    (1) purchase the property for a sum equal to its fair market 
value immediately prior to the time the water supply was affected; 
or
    (2) make a one-time payment equal to the difference between the 
property's fair market value immediately prior to the time the water 
supply was affected and at the time payment is made; whereupon the 
mine operator shall be relieved of further obligation regarding 
contamination, diminution or interruption of an affected water 
supply under this act. Any measures taken under sections 5.1 and 5.3 
and this section to relieve a mine operator of further obligation 
regarding contamination, diminution or interruption of an affected 
water supply shall not be deemed to bar a subsequent purchaser of 
the land on which the affected water supply was located or any water 
user on such land from invoking rights under this section for 
contamination, diminution or interruption of a water supply 
resulting from subsequent mining activity other than that 
contemplated by the mine plan in effect at the time the original 
supply was affected.

    Section 5.2(h). We are proposing to supersede section 5.2(h) of 
BMSLCA to the extent it would bar Pennsylvania from requiring the 
restoration or replacement of a water supply covered under section 720 
of SMCRA. Section 5.2(h) provides that:

    (h) Prior to entering into an agreement with the mine operator 
pursuant to subsection (g), the landowner may submit a written 
request to the department asking that the department review the 
operator's finding that an affected water supply cannot reasonably 
be restored or that a permanent alternate source, as described in 
subsection (i), cannot reasonably be provided. The department shall 
provide its opinion to the landowner within sixty days of receiving 
the landowner's request. The department's opinion shall be advisory 
only, including for purposes of assisting the landowner in selecting 
the optional compensation authorized under subsection (g). The 
department's opinion shall not prevent the landowner from entering 
into an agreement with the mine operator pursuant to subsection (g), 
and such opinion shall not serve as the basis for any action by the 
department against the mine operator or create any cause of action 
in a third party, provided the operator otherwise complies with 
subsection (g).

    Section 5.4(a)(3). We are proposing to supersede the portion of 
section 5.4(a)(3) of BMSLCA that states, ``in place on the effective 
date of this section or on the date of first publication of the 
application for a Mine Activity Permit or a five-year renewal thereof 
for the operations in question and within the boundary of the entire 
mine as depicted in said application,'' to the extent it excludes 
structures covered under Section 720 of SMCRA from repair or 
compensation requirements. This provision is proposed to be superseded 
because it may exclude certain structures from the repair and 
compensation provisions of SMCRA.
    Section 5.4(a)(3) provides that:
    5.4. Restoration or compensation for structures damaged by 
underground mining.
    (a) Whenever underground mining operations conducted under this 
act cause damage to any of the following surface buildings overlying 
or in the proximity of the mine:
* * * * *
    (3) Dwellings used for human habitation and permanently affixed 
appurtenant structures or improvements in place on the effective 
date of this section or on the date of first publication of the 
application for a Mine Activity Permit or a five-year renewal 
thereof for the operations in question and within the boundary of 
the entire mine as depicted in said application; or
* * * * *
    Section 5.4(c). We are proposing to supersede section 5.4(c) of 
BMSLCA where it would relieve an operator's liability to repair or 
compensate for damage to a structure covered under

[[Page 55136]]

section 720 of SMCRA. Section 5.4(c) provides that:

    (c) A mine operator shall not be liable to repair or compensate 
for subsidence damage if the mine operator, upon request, is denied 
access to the property upon which the building is located to conduct 
premining and postmining surveys of the building and surrounding 
property and thereafter serves notice upon the landowner by 
certified mail or personal service, which notice identifies the 
rights established by sections 5.5 and 5.6 and this section, the 
mine operator was denied access and the landowner failed to provide 
or authorize access within ten days after receipt thereof.

    Section 5.5(b). We are proposing to supersede the portion of 
section 5.5(b) of BMSLCA that reads, ``All claims under this subsection 
shall be filed within two years of the date damage to the building 
occurred'' where it would apply to a structure covered under section 
720 of SMCRA. Section 5.5(b) provides that:

    (b) If the parties are unable to agree within six months of the 
date of notice as to the cause of the damage or the reasonable cost 
of repair or compensation, the owner of the building may file a 
claim in writing with the Department of Environmental Resources, a 
copy of which shall be sent to the operator. All claims under this 
subsection shall be filed within two years of the date damage to the 
building occurred.

    We are proposing to supersede the provisions of BMSLCA as noted 
above because we have previously determined that these provisions are 
inconsistent with SMCRA or the Federal regulations based on the reasons 
cited under ``Director's Findings'' in a notice of final rulemaking 
published in the Federal Register on December 27, 2001 (66 FR 67010) 
and because Pennsylvania did not propose revisions to the statute. This 
action is also needed to resolve litigation between Pennsylvania and 
OSM. In subsequent discussions with OSM, Pennsylvania expressed concern 
that without this action, there may be conflicts with new State 
rulemaking, which is needed to satisfy some of the required amendments 
of 30 CFR 938.16. Therefore, to alleviate Pennsylvania's concerns and 
as part of the measures to resolve the litigation, we are proposing to 
supersede those provisions as noted above.
    Please note that we are proposing to supersede only the provisions 
of the BMSLCA to the extent noted above in this notice. The superseded 
provisions, as noted above, cannot be implemented or enforced by any 
party as they would apply to a water supply or structure covered by 
section 720 of SMCRA. However, this proposal will not change the way 
Pennsylvania or OSM enforce the provisions of BMSLCA or SMCRA in 
Pennsylvania unless or until it becomes final. To meet the enforcement 
requirements of section 720 in Pennsylvania, enforcement occurred 
through a combination of State enforcement of BMSLCA and direct Federal 
enforcement as described in the July 28, 1995, Federal Register (60 FR 
38685). Pennsylvania's enforcement of BMSLCA and our direct enforcement 
continued from July 28, 1995, up to December 27, 2001, and continues as 
described in the December 27, 2001, final rule. A complete discussion 
of enforcement of the section 720 provisions of SMCRA in Pennsylvania 
and the relationship of the decisions made in the December 27, 2001, 
final rule to those enforcement provisions can be found in Section VI. 
Effect of Director's Decision in that final rule (66 FR 67061).
    In a separate rulemaking located elsewhere in this Federal Register 
issue, Pennsylvania has submitted new regulations and supplemental 
information to OSM which will include enforcement of those areas of the 
program that have been superseded. We intend to coordinate the 
effective date of the final rule notice announcing the superseded 
provisions with Pennsylvania's rulemaking process regarding its new 
regulations to insure that there are no gaps in enforcement of 
Pennsylvania's program. The full text of the December 27, 2001, final 
rule is available for you to read at the locations listed above under 
ADDRESSES.

III. Public Comment Procedures

    We are now soliciting comments on this proposal to supersede the 
portions of BMSLCA as noted above. If we receive no evidence 
demonstrating why these portions should not be superseded, we will 
publish a final notice to effect the supersession of the provisions by 
Federal law. This action, if taken, will require Pennsylvania to 
operate and enforce its approved program as if the superseded 
provisions did not exist.

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-141-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 Hearings

    If you wish to speak at the public hearings, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
October 7, 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.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public 
hearings provide us with a written copy of his or her comments. The 
public hearings will continue on the specified dates 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 hearings after everyone scheduled to speak and others 
present in the audience who wish to speak, have been heard. You do not 
need to attend both public hearings. We will consider all

[[Page 55137]]

comments received at either of the public hearings.

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. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian 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 on the 
analysis prepared for the OSM regulations implementing the provisions 
of the Energy Policy Act.

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 on the analysis prepared for 
the OSM regulations implementing the provisions of the Energy Policy 
Act.

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 on the analysis prepared for 
the OSM regulations implementing the provisions of the Energy Policy 
Act.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 9, 2003.
Glenda Owens,
Deputy Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 03-23985 Filed 9-9-03; 8:45 am]
BILLING CODE 4310-05-P