[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Proposed Rules]
[Pages 29597-29604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7815]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-146-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 proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (hereinafter, the ``Pennsylvania

[[Page 29598]]

program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). Pennsylvania submitted separate letters proposing 
as effective as determinations to remove four OSM-issued required 
amendments. Pennsylvania asserts that its program, in the case of these 
required amendments, is as effective as the corresponding Federal 
regulations and SMCRA and can be removed. We are also providing 
discussions to remove three more required amendments.
    This document gives the times and locations that the Pennsylvania 
program and this submittal are available for your inspection, the 
comment period during which you may submit written comments, and the 
procedures that we will follow for the public hearing,

DATES: We will accept written comments until 4 p.m., local time June 
22, 2006. If requested, we will hold a public hearing on June 19, 2006. 
We will accept requests to speak until 4 p.m., local time on June 7, 
2006.

ADDRESSES: You may submit comments, identified by ``PA-146-FOR'' by any 
of the following methods:
     E-mail: [email protected].
     Mail/Hand Delivery: George Rieger, Director, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
415 Market Street, Room 304, Harrisburg, PA 17101; Telephone: (717) 
782-4036.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number ``PA-146-FOR'' for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``Public Comment Procedures'' section in 
this document. You may also request to speak at a public hearing by any 
of the methods listed above or by contacting the individual listed 
under FOR FURTHER INFORMATION CONTACT.
    Docket: You may review copies of the Pennsylvania program, this 
submission, a listing of any scheduled public hearings, and all written 
comments received in response to this document at OSM's Pittsburgh 
Field Division Office at the address listed above during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the submission by contacting OSM's Pittsburgh 
Field Division's Harrisburg Office. In addition, you may receive a copy 
of the submission during regular business hours at the following 
location:
    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 Submission
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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this 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 the Pennsylvania 
program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 
938.16.

II. Description of the Submission

    By letters dated February 7, 2006 (Administrative Record Number 
PA803.37) and February 28, 2006 (Administrative Record Number 
PA803.36), Pennsylvania sent OSM an explanation of why their program is 
no less effective than the Federal Program, which would allow us, if we 
find that Pennsylvania's assertions are correct, to remove four 
required amendments at 30 CFR 938.16(eee), (ggg), (qqq) and (ttt) per 
the provisions of 30 CFR 730.5. We are also proposing to remove 
amendments at 30 CFR 938.16(r), (kkk) and (lll) (Administrative Record 
Number PA790.28, PA803.35 and PA830.38 respectively) based on an OSM's 
Harrisburg Field Office staff review of whether the amendments are 
necessary. The full text of the as effective as determinations are 
available for you to read at the location listed above under ADDRESSES. 
A summary of the proposed changes are as follows:

30 CFR 938.16(r)

    OSM required Pennsylvania to amend Chapter 86.193(h) or otherwise 
amend its program to be no less effective than 30 CFR 846.12(a) by 
clarifying that an individual civil penalty is not a substitute for 
mandatory civil penalties, and also to clarify when the assessment of 
an individual civil penalty would be appropriate. (See 56 FR 24696, May 
31, 1991).
    The first part of this required amendment has been resolved as a 
result of an amendment that PADEP submitted to its program on January 
23, 1996 (PA838.00--Part 1), to delete the provision at 25 Pa Code 
86.193(h) which stated that ``The Department may, when appropriate, 
assess a penalty against corporate officers, directors, or agents as an 
alternative to, or in combination with, other penalty actions.'' As a 
result of OSM's review, a final rule was issued on November 7, 1997 (62 
FR 60169-60177), and the Director approved this deletion and determined 
that it did not render the Pennsylvania program less effective than the 
Federal regulation at 30 CFR 846.12(a). With this deletion, PADEP has 
satisfied the first part of this required amendment. The second part of 
30 CFR 938.16(r) required Pennsylvania to clarify when the assessment 
of an individual civil penalty would be appropriate. PADEP asserted 
that an individual civil penalty is assessed in accordance with 25 Pa. 
Code 86.195(a), which provides for the assessment of individual civil 
penalties against corporate officers who either participate in or 
intentionally allow violations to occur. As such, we are proposing to 
remove the required program amendment at 30 CFR 938.16(r) on the basis 
that Pennsylvania's program is no less effective than the Federal 
program.

30 CFR 938.16(eee)

    OSM required Pennsylvania to submit a proposed amendment to 25 Pa. 
Code 86.195(a) and (b) to specify that individual civil penalties may 
be assessed against corporate directors or agents of the corporate 
permittee and to include provisions for the assessment of an individual 
civil penalty for a failure or refusal to comply with any orders issued 
by the Secretary. Pennsylvania is requesting that OSM remove the 
required program amendment at 30 CFR 938.16(eee) based on the 
determination that the Pennsylvania program is no less effective than 
its Federal counterpart with respect to (a) the scope of persons 
subject to individual civil penalties and

[[Page 29599]]

(b) the scope of orders subject to individual civil penalties against 
corporate permittees. Below is a discussion of Pennsylvania's 
submission to remove the required amendment. On April 8, 1993, OSM 
issued a final rule approving in part, and disapproving in part, an 
amendment to Pennsylvania's program regarding the State's authority to 
assess civil penalties against corporate directors, officers and 
agents. (See 66 FR 18149, April 8, 1993). Pennsylvania proposed to add 
25 Pa. Code 86.195 which states in pertinent part as follows:

    (a) The Department may assess a civil penalty against a 
corporate officer who participates in a violation or whose 
misconduct or intentional neglect causes or allows a violation.
    (b) Whenever the Department issues an order to an operator for 
failing to abate violations contained in a previous order, it will 
send by certified mail to each corporate officer listed in the 
surface mining operator's license application under Section 86.353 
(relating to identification of ownership), or to each corporate 
officer listed in a coal mining activities application under 862 
(relating to identification of interests), a copy of the failure to 
abate order and a notice of the officer's liability under this 
Section. If the violations are not abated within 30 days of issuance 
of the failure to abate order, the department may assess a civil 
penalty against each officer receiving the notice provided by this 
Section. 25 Pa. Code 86.195(a) and (b).

    There is a Federal counterpart to this regulation at 30 CFR 846.12 
which provides:

    (a) Except as provided in paragraph (b) of this Section, the 
Office may assess an individual civil penalty against any corporate 
director, officer or agent of a corporate permittee who knowingly 
and willfully authorized, ordered or carried out a violation, 
failure or refusal.

    In its analysis of 25 Pa. Code 86.195, OSM determined that the rule 
is consistent with or at least as effective as 30 CFR 846.12 with 
respect to culpability and conduct elements. Pennsylvania's regulations 
define ``participates'' as: ``To take part in an action or to instruct 
another person or entity to conduct or not to conduct an activity.'' 25 
Pa. Code 86.1. OSM concluded that because ``participates'' was defined 
consistently with the Federal terms ``authorized, ordered or carried 
out'' and is not modified by the knowing and willful standards applied 
to the Federal regulations, ``it provides for a broader application of 
this rule.'' (See 66 FR at 18152-53).
    However, OSM raised two issues with respect to whether Section 
86.195 is as effective as the Federal regulations. First, noting that 
30 CFR 846.12(a) states that a civil penalty may be assessed against 
``any corporate director, officer or agent of a corporate permittee'' 
while Section 86.195 uses the term ``corporate officer'' to describe 
potential recipients of individual penalties, OSM asserted that 
Pennsylvania's rule ``appears to limit the assessment of civil 
penalties to a more restrictive set of individuals than the 
corresponding Federal regulations.'' (See 66 FR at 18152).
    Second, OSM focused on the procedure in 25 Pa. Code 86.195(b) 
providing for a specific notice process accompanying the issuance of a 
PADEP failure to abate order. OSM then contrasted the emphasis in 
Section 86.195(b) on failure to abate orders with the Federal rule's 
use of the term ``violation, failure or refusal.'' The Federal 
regulations define ``violation, failure or refusal'' in pertinent part 
as a ``failure or refusal to comply with any order issued under section 
521 of the Act, or any order incorporated in a final decision issued by 
the Secretary under the Act * * *.'' 30 CFR 701.5. According to OSM, 25 
Pa. Code 86.195 ``does not include a counterpart to the failure or 
refusal to comply with an order issued by the Secretary under the Act 
(such as an order to revise a permit).'' (See 66 FR at 18153).
    OSM concluded that those two aspects of 25 Pa. Code 86.195 are not 
as effective as the Federal regulations, disapproved the rule in part, 
and directed Pennsylvania to amend Section 86.195 to specify that 
individual civil penalties may be assessed against directors or agents 
of the corporate permittee and, to include provisions for assessing an 
individual civil penalty for a failure or refusal to comply with any 
orders issued by the Secretary. The required amendment was then 
codified at 30 CFR 938.16(eee).
A. Set of Individuals Subject to Individual Civil Penalties
    Pennsylvania asserts that its regulatory program is as effective as 
the Federal regulations with respect to the scope of persons subject to 
individual civil penalties. 25 Pa. Code 86.195 implements Section 18.4 
of the Pennsylvania Surface Mining Conservation and Reclamation Act 
(PASMCRA). Pennsylvania asserts that one must look to the Pennsylvania 
Statute (P.S.) to determine the Pennsylvania Department of 
Environmental Protection's (PADEP) authority to assess individual civil 
penalties and to understand the intent of the implementing regulation. 
Pursuant to Section 18.4 of PASMCRA: ``In addition to proceeding under 
any other remedy available at law or in equity for a violation of a 
provision of this act, rule, regulation, order of the Department, or a 
condition of any permit issued pursuant to this act, the Department may 
assess a civil penalty upon a person or municipality for such 
violation.'' 52 P.S. Section 1396.18d. The term ``person'' is defined 
by PASMCRA as follows:

    ``Person'' shall be construed to include any natural person, 
partnership, association or corporation or any agency, 
instrumentality or entity of Federal or State Government. Whenever 
used in any clause prescribing and imposing a penalty, or imposing a 
fine or imprisonment, or both, the term ``person'' shall not exclude 
the members of an association and the directors, officers or agents 
of a corporation. 52 P.S. Section 1396.3.

    Thus, PASMCRA expressly authorizes the department to issue civil 
penalties on the directors, officers or agents of a corporation. 
Corporate licensees are required to identify all directors, officers 
and agents as part of their application for a mining license in 
Pennsylvania. 25 Pa. Code 86.353. Mining-permit applications in 
Pennsylvania must contain similar ownership and control information. 
See 25 Pa. Code 86.62(b). Pennsylvania therefore submits that its 
overall regulatory program is as effective as the Federal regulations 
with respect to the agency's authority to assess individual civil 
penalties on corporate directors, officers or agents.
B. Scope of Orders Subject to Individual Civil Penalties
    Pennsylvania also asserts that its regulatory program is as 
effective as the Federal regulations with respect to the scope of 
orders subject to individual civil penalties against corporate 
permittees. Section 86.195 states that the PADEP may assess a civil 
penalty against any corporate officer who ``participates in a violation 
or whose misconduct or intentional neglect causes or allows a 
violation.'' The term ``violation,'' though not expressly defined in 
the Pennsylvania regulations, is a broad term that encompasses any 
failure or refusal by a person to comply with the mining laws as set 
forth in the Pennsylvania statutes and regulations. See, e.g., Black's 
Law Dictionary 1564 (7th ed. 1999) (defining ``violation'' as an 
``infraction or breach of the law'' or, as the ``act of breaking or 
dishonoring the law''). Pennsylvania asserts that the PADEP has 
authority to issue orders consistent with section 521 of SMCRA. (See 25 
Pa. Code 86.212).
    The PADEP also has authority to issue any ``other orders as are 
necessary to aid in the enforcement of the acts or the regulations 
promulgated pursuant thereto. The orders include, but are not limited 
to, orders modifying,

[[Page 29600]]

suspending or revoking permits and licenses.'' 25 Pa. Code 86.213. See 
also 52 P.S. 1396.4b(a) (granting the PADEP the ``authority and power 
to enforce the provisions of this act and the rules and regulations 
promulgated there under''). Moreover, PADEP orders are considered 
adjudications of the agency. See 2 Pa.C.S.A. Section 101 (defining 
``adjudication'' as any ``final order, decree, decision, determination 
or ruling by an agency affecting personal or property rights, 
privileges, immunities, duties, liabilities or obligations'' of a 
party); see also 35 P.S. 7514(c) (PADEP actions adversely affecting a 
person are appealable to the Environmental Hearing Board). Thus, the 
term ``violation'' in 86.195(a) must be interpreted to include a 
failure to comply with any type of final order issued by the PADEP to a 
corporate permittee.
    PADEP continued to assert that OSM's disapproval faulted Section 
86.195(b) for not expressly including a counterpart to the Federal 
regulation's failure to comply with an order issued by the Secretary 
(such as an order to revise a permit). 66 FR at 18153. But Section 
86.195(a) authorizes the PADEP to assess individual civil penalties on 
corporate permittees for ``a violation.'' A failure or refusal by a 
corporate permittee to comply with any order of the PADEP necessary to 
aid in the enforcement of the Pennsylvania mining laws--including an 
order modifying a permit--would constitute a violation of Section 
86.213, and would be subject to civil penalty assessment. See 52 P.S. 
1396.18f (``it shall be unlawful to fail to comply with any rule or 
regulation of the PADEP or to fail to comply with any order or permit 
or license of the PADEP, to violate any of the provisions of this act 
or rules and regulations adopted hereunder, or any order or permit or 
license of the PADEP''). See also 52 P.S. 1396.18d (authorizing 
assessment of civil penalties for violation of PASMCRA, any PADEP rule 
or regulation, any order of the PADEP, or a condition of any permit).
    Pennsylvania asserts that its regulatory program includes the 
authority to assess individual civil penalties for a broader scope of 
violations than those explicitly defined in the Federal regulations, 
including orders issued by the PADEP pertaining to permit conditions. 
Pennsylvania therefore submits that its regulatory program is as 
effective as the Federal regulations with respect to the types of 
orders subject to an individual civil penalty assessment pursuant to 25 
Pa. Code 86.195. As such, Pennsylvania is requesting to have the 
required program amendment at 30 CFR 938.16(eee) removed. 
(Administrative Record Number PA803.37)

30 CFR 983.16(ggg)

    OSM required Pennsylvania to submit a proposed amendment to 25 Pa. 
Code 86.151(d) to define the point at which seeding, fertilization, 
irrigation, or rill and gully repairs cease to be augmentative and may 
be considered nonaugmentative normal husbandry practices. Moreover, 
Pennsylvania shall submit a proposed amendment to require such 
practices be evaluated and approved in accordance with the State 
program amendment process and 30 CFR 732.17 (58 FR 18149-18161, April 
8, 1993). Pennsylvania is requesting that OSM remove the required 
program amendment at 30 CFR 938.16(ggg) based on the determination 
that: Pennsylvania regulations define the point at which practices 
cease to be selective husbandry and become subject to liability 
extension in a way no less effective than similar guidance provided at 
30 CFR 816/817.116(c)(4); and also that the PADEP has not approved any 
alternative selective husbandry practices and in the event additional 
``nonaugmentative normal husbandry practices'' are identified beyond 
those already discussed at 25 Pa. Code 86.151(d), Pennsylvania will 
submit them to OSM in accordance with the State program amendment 
process before these practices are approved in Pennsylvania.
    There are two parts to this required amendment:
    The first part requires that Pennsylvania define the point at which 
seeding, fertilization, irrigation, or rill and gully repairs cease to 
be augmentative, subject to the 5-year extended liability period, and 
the point at which it may be considered non-augmentative normal 
husbandry practices. The second part requires that, in accordance with 
30 CFR 816.116(c)(4), before selected husbandry practices can be 
categorized as ``normal husbandry practices'' they are required to be 
documented as usual or expected practices customarily performed to 
ensure vegetative success, and secondly reviewed and approved through 
the State program amendment process. This includes all management 
practices that are categorized as ``normal husbandry practices,'' such 
as seeding, fertilization, irrigation or the repair of rills and 
gullies.
    To resolve the first part of this required amendment, PADEP has 
clarified that 25 Pa. Code 86.151(d) includes selective husbandry 
practices that do not restart the 5-year liability period and also 
provided that practices that go beyond normal conservation practices 
will extend the liability period accordingly. OSM acknowledges that 25 
Pa. Code 86.151(d) defines selective husbandry practices that do not 
restart the 5-year liability period as pest and vermin control, 
pruning, repair of rills and gullies or reseeding or transplanting or 
both that constitute normal conservation practices within the region 
for similar land uses. Further, with the disapproval of the word 
``augmented,'' Pennsylvania's regulations at Section 86.151(d) provide 
further guidance on when seeding, fertilization, irrigation and repair 
of rills and gullies would require extending the period of liability. 
That is, when those activities ``exceed those normally applied in 
maintaining use or productivity of comparable unmined land in the 
surrounding area.'' Because Pennsylvania's regulations define the point 
at which practices cease to be selective normal husbandry, and become 
subject to liability extension, as indicated above, the Pennsylvania 
program is no less effective than similar guidance provided in the 
Federal program at 30 CFR 816/817.116(c)(4).
    To resolve the second part of the required amendment, PADEP asserts 
that they have not approved any alternative selective husbandry 
practices (for use on individual permits, clarification added), and in 
the event additional ``nonaugmentative normal husbandry practices'' are 
identified (beyond those already discussed at Section 86.151(d), 
clarification added), they will be submitted to OSM in accordance with 
the state program amendment process before approval by Pennsylvania. As 
a result of these discussions, PADEP is requesting that OSM remove the 
required amendment at 30 CFR 938.16(ggg).

30 CFR 938.16(kkk)

    After further review, OSM has determined that the required program 
amendment at 30 CFR 938.16(kkk) is moot as a result of OSM's 
clarification of affected areas as discussed in the final rule dated 
November 8, 1988 (53 FR 45190-45214).
    On April 8, 1993 (58 FR 18149), OSM codified an amendment at 30 CFR 
938.16(kkk) directing PADEP to submit a proposed amendment to 25 Pa. 
Code Section 88.1 requiring that the definition of affected area 
include all roads that receive substantial use and are substantially 
impacted by the mining activity.
    In 1979, OSM issued rules that defined the term affected area to 
include any land upon which surface mining

[[Page 29601]]

activities or underground mining activities are conducted or located. 
This definition did not exclude public roads. However, on April 5, 
1983, OSM adopted a revised definition of the term affected area to 
exclude public roads from this definition and provided three tests for 
exclusion, one of which was the substantial public use (more than 
incidental) test which required that if a road has substantial public 
use it would be excluded as a public road. This rule was challenged 
(known as the Flannery Decision, July 15, 1985) as it imposed the 
``more than incidental'' public use test in determining whether a 
public road is part of the affected area and improperly excluded from 
regulation some public roads which are included in the statutory 
definition of surface coal mining operations. This rule was remanded 
because the coverage of this exception was related to public use rather 
than mining use. In 1986, OSM suspended the definition of affected area 
to the extent that it excludes public roads which are included in the 
definition of ``surface coal mining operations.'' Further, the 
suspension had the effect of including, in the definition of affected 
area, all lands that are affected by the construction of new roads or 
the improvement or use of existing roads to gain access to the site of 
regulated activities or for haulage.
    In the November 8, 1988 (53 FR 45190-45214--known as the ``road 
rule''), final rule, OSM first declined to revise the definition of 
affected area because the definition of road is clear on its own terms. 
Second, OSM declined to retain a reference to affected area in the 
definition of road on the basis that it would not affect the 
jurisdiction over roads. Third, OSM stated that its intention was not 
to automatically extend jurisdiction into the existing public road 
network, but that the regulatory authorities should make decisions on a 
case-by-case basis. This rule provides the latest and most definitive 
framework provided by the Secretary.
    To the extent that OSM is requiring PADEP to include all roads that 
receive substantial use and are substantially impacted by the mining 
activity in the definition of affected area at 25 Pa. Code Section 
88.1, this required amendment at 30 CFR 938.16(kkk) is moot, thus OSM 
is proposing to remove it in accordance with the clarification provided 
by the November 8, 1988, final rule.

30 CFR 938.16(lll)

    OSM required that Pennsylvania submit a proposed amendment to 
Section 88.1 to require that the definition of access road include all 
roads that are improved or maintained for minimal and infrequent use 
and that the area of the road is comprised of the entire area within 
the right-of-way, including roadbeds, shoulders, parking and side 
areas, approaches, structures, and ditches. (58 FR 18149-18161--
PA803.20) Further review, indicated that Pennsylvania provides for an 
additional definition of road at 25 Pa. Code 88.1. In that definition, 
road includes the following:

    * * * A road consists of the entire area within the right-of-
way, including the roadbed shoulders, parking and roadside area, 
approaches, structures, ditches, surface and such contiguous 
appendages as are necessary for the total structure. The term 
includes access and haul roads constructed, used, reconstructed, 
improved or maintained for use in coal exploration or surface coal 
mining activities, including use by coal hauling vehicles leading to 
transfer, processing or storage areas.

    The second part of this amendment requires that PADEP also include 
in the definition of access roads: ``that area of the road comprised of 
the entire area within the right-of-way, including roadbeds, shoulders, 
parking and side areas, approaches, structures, and ditches.'' PADEP's 
definition of ``road'' in 25 Pa. Code 88.1 includes this required 
language. As such, we are proposing to remove our required amendment at 
30 CFR 938.16(lll) because when the definitions of access road and road 
are read together, they appear to be no less effective than the Federal 
counterparts at 30 CFR 701.5 and 816.50(a).

30 CFR 938.16(qqq)

    PADEP requested the removal of 30 CFR 938.16(qqq) based on the fact 
that the Pennsylvania program provides sufficient safeguards to assure 
that renewals filed under 25 Pa. Code 86.55(j) are required to meet the 
public notice and participation requirements, and that coal mining will 
not continue after the permit expiration date, thus making the 
provision not inconsistent with section 506(d)(3) of SMCRA and no less 
effective than 30 CFR 774.15(b).
    On November 7, 1997 (62 FR 60169-60177), OSM issued a final rule 
which included the findings for two provisions at 25 Pa. Code 86.55(i) 
and 86.55(j). The provision at Section 86.55(i) allows for a permittee 
to provide a written notice to the PADEP in lieu of submitting a 
complete renewal application if, after the permit expiration date, the 
remaining surface mining activities will consist solely of reclamation. 
Conversely, Section 86.55(j) states that if a permit renewal 
application is filed under Section 86.55(i) and the permittee 
subsequently determines that coal extraction, coal preparation, coal 
refuse disposal will occur or treatment facilities will be required 
after the permit expiration date, a renewal application shall be 
submitted prior to these activities.
    As a result of this review, OSM required Pennsylvania to submit a 
proposed amendment to Section 86.55(j), or otherwise amend its program, 
to require that any applications for permit renewal be submitted at 
least 120 days before the permit expiration date. This requirement was 
codified at 30 CFR 938.16(qqq).
    The two counterparts to the Federal program apply at section 
506(d)(3) of SMCRA and 30 CFR 774.15(b). In an effort to determine 
whether this required amendment can be resolved, OSM's Harrisburg staff 
reviewed prior OSM interpretations regarding this issue that may have 
been published after the codification of this required amendment. OSM 
published a final rule to the Kentucky Program (May 10, 2000, 65 FR 
29949--29953) pertaining to the issuance of Notices of Violation for 
failure to submit a timely renewal application. The timeliness in this 
rule refers to 120 days. On pages 29951 and 29952, OSM, in response to 
comments, provided the following statements:

    Section 506(d)(3) does not, however state that the consequences 
of failure to comply with the 120 day deadline must be that the 
renewal cannot be granted under any circumstance, such as after the 
permittee submits an untimely application.
    We do not agree, however, that allowing the filing of a late 
renewal application violates section 506(d)(3). Instead, we believe 
this provision is sufficiently flexible to allow consideration of 
untimely applications, so long as the permit renewal procedures, 
which include public participation, are properly followed.
    However, we expect that we could approve a State program 
amendment that allows expired permits to be renewed, assuming all 
other renewal requirements are met, and assuming that mining is not 
permitted to resume until the renewal application is granted.

    As indicated in this excerpt of the May 10, 2000, final rule, OSM 
believes that section 506(d)(3) of SMCRA is flexible to allow untimely 
applications as long as the permit renewal procedures are followed 
regarding public participation, with the assumption that mining is not 
permitted to resume until the renewal application is granted.
    Further Section 86.55(c) requires that applications for renewal of 
a permit as established in this chapter shall be filed

[[Page 29602]]

with the PADEP at least 180 days before the expiration date of the 
particular permit in question. Written notices filed in accordance with 
Section 86.55(i) must also be filed at least 180 days before the 
expiration date of the permit. Section 86.55(j) provides authority for 
a permittee, who has already filed a written notice under Section 
86.55(i), to submit a renewal for mining if they subsequently determine 
that coal mining operations will continue after permit expiration. 
However, Section 86.55(i) restricts this authority by stating that if 
the reclamation only renewal has been granted, a new permit must be 
obtained. Section 86.55(j) does not allow coal extraction, preparation, 
refuse disposal, or land excavation for those purposes to occur after 
the permit expiration date until the renewal application is approved by 
the PADEP. Section 86.55(d) requires all applications for renewal to 
comply with the public notification and participation requirements of 
Section 86.31. Pennsylvania also further implements 86.31 through a 
technical guidance document (563-2100-216). This guidance document 
further explains that public notice and public participation requires 
at least 60 days to complete (30 days for newspaper notification and 30 
days for comments following the final of four weeks of notices), 
therefore, a renewal application that is filed less than 60 days prior 
to the expiration date, in accordance with Section 86.55(j), would 
automatically result in a shut down of coal mining operations.
    Pennsylvania asserts that its program provides sufficient safe 
guards, as previously discussed, to assure that renewals filed under 
Section 86.55(j) are required to meet the public notice and 
participation requirements, and that coal mining will not continue 
after the permit expiration date. As a result of the findings above, 
Section 86.55(j) does not appear to be inconsistent with section 
506(d)(3) of SMCRA and PADEP asserts that it is no less effective than 
30 CFR 774.15(b). Therefore, Pennsylvania asserts, the required 
amendment at 30 CFR 938.16(qqq) has been satisfied and should be 
removed.

30 CFR 938.16(ttt)

    PADEP requested the removal of 30 CFR 938.16(ttt) based on the fact 
that the Pennsylvania program does not allow for noncoal waste to be 
deposited in a coal refuse pile or impounding structure.
    On November 7, 1997 (62 FR 60169-60177), OSM issued a final rule 
requiring Pennsylvania to submit a proposed amendment to 25 Pa. Code 
Sections 88.321 and 90.133, or otherwise amend its program, to require 
that no noncoal waste be deposited in a coal refuse pile or impounding 
structure.
    In its final rule, OSM required Pennsylvania to change its 
regulations at Section 88.321, however, these performance standards are 
exempt in accordance with section 529 of SMCRA which authorizes the 
Secretary to issue separate regulations for anthracite coal surface 
mines.
    Pennsylvania is still required to provide evidence that 25 Pa. Code 
90.133 is no less effective than its Federal counterpart at 30 CFR 
816.89(c) which states that:

    At no time shall any noncoal mine waste be deposited in a refuse 
pile or impounding structure, nor shall an excavation for a noncoal 
mine waste disposal site be located within 8 feet of any coal 
outcrop or storage area.

    OSM, in its final rule, was particularly concerned that the 
provision at Section 90.133 appears to only prohibit the listed 
materials and other waste materials with low ignition points, rather 
than specifying that all noncoal materials are prohibited to be 
deposited in a refuse pile or impounding structure.
    Pennsylvania asserts that the burning of coal refuse sites is a 
serious environmental liability and the inclusion of language regarding 
materials with low ignition points is meant to emphasize the need to 
restrict the presence of combustible materials that could cause the 
coal refuse to ignite. It was not intended to nor does it imply that 
other waste materials are acceptable for disposal at coal refuse sites.
    The materials that are acceptable for disposal are addressed in its 
Coal Refuse Disposal Control Act (52 P.S. 30.51) and materials that do 
not meet the definition of ``coal refuse'' must be disposed of in 
accordance with Pennsylvania's Solid Waste Management Act (SWMA), 35 
P.S. 6018.101 et seq. and PADEP's Municipal and Residual Waste 
regulations (25 PA Code Chapters 271-299). The SWMA prohibits storage 
or disposal of solid waste (which includes municipal, residual or 
hazardous waste) unless such storage or disposal is consistent with and 
authorized by the SWMA and the implementing rules and regulations of 
PADEP. PADEP's regulations prohibit a person from operating a waste 
disposal facility unless the person has obtained a permit for the 
facility from the PADEP. In accordance with 25 Pa. Code Sections 
271.201 and 287.101, the definitions of municipal and residual waste 
are quite broad and include all wastes from mining except coal refuse 
as defined in the Coal Refuse Disposal Control Act. For example, the 
term ``residual waste'' is defined as: ``Garbage, refuse, other 
discarded material or other waste, including solid, liquid, semisolid 
or contained gaseous materials resulting from industrial, mining and 
agricultural operations; and sludge from an industrial, mining or 
agricultural water supply treatment facility, wastewater treatment 
facility or air pollution control facility * * * The term does not 
include coal refuse as defined in the Coal Refuse Disposal Control Act 
* * * '' The definitions of ``municipal waste'' and ``hazardous waste'' 
are also noted at Sections 271.1 and 287.1.
    A review of the definitions in the Coal Refuse Disposal Control Act 
and Chapter 90, show the restrictive nature of PADEP's definition of 
``coal refuse'' and the restrictive nature of coal refuse disposal. 
Moreover, the PADEP interprets these definitions strictly. If a 
material is not coal refuse, it is not permissible to be disposed of at 
a coal refuse disposal site. Only coal refuse can be disposed of at a 
coal refuse site. The materials identified in Section 90.133 are 
residual wastes, and as such, would be required to be sent to an 
approved landfill or other appropriate disposal area (such as a 
recycling center). The definitions from 25 Pa. Code Section 90.1 are 
implemented in accordance with the Coal Refuse Disposal Control Act (52 
P.S. Section 30.51), that also includes definitions at Section 30.53 
that define coal refuse and related coal refuse activities.
    As explained above, PADEP asserts that protections are provided 
throughout the Pennsylvania program prohibiting noncoal materials to be 
deposited on a coal refuse site or impounding structure. Further, this 
required amendment should be removed.

III. Public Comment Procedures

    In accordance with 30 CFR 732.17(h), we are seeking your comments 
on whether the submission satisfies the applicable program approval 
criteria of 30 CFR 732.15. If we remove the required amendments, as 
proposed, these approvals will become part of the Pennsylvania program. 
We cannot ensure that comments received after the close of the comment 
period (see DATES) or at locations other than those listed above (see 
ADDRESSES) will be considered or included in the Administrative Record.

[[Page 29603]]

Written Comments

    Send your written 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.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: PA-146-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 Pittsburgh Field Division's 
Harrisburg 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., local time on 
June 7, 2006. 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 the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a 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 submission, 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 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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, to the 
extent allowable by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 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 Tribes.

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. 4321 et 
seq.).

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.).

[[Page 29604]]

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 that is the subject of this rule is based on 
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, geographic regions, or Federal, State or local governmental 
agencies; 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: April 21, 2006.
 H. Vann Weaver,
Acting Regional Director, Appalachian Region.
 [FR Doc. E6-7815 Filed 5-22-06; 8:45 am]
BILLING CODE 4310-05-P