[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Proposed Rules]
[Pages 50868-50871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14229]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 166 / Monday, August 28, 2006 / 
Proposed Rules  

[[Page 50868]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-147-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 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). Pennsylvania proposes to revise its program 
concerning reclamation fees, financial guarantees for bonding, money 
received from fees, the definition of reclamation, reclamation of bond 
forfeiture sites, alternate reclamation plans for bond forfeiture 
sites, bond forfeiture sites where reclamation is unreasonable, 
unnecessary or impossible, and evaluation of bond sites.
    The proposed amendments are intended to revise the Pennsylvania 
program to be consistent with the corresponding Federal regulations and 
to amend provisions at its own initiative.
    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, 
September 27, 2006. If requested, we will hold a public hearing on 
September 22, 2006. We will accept requests to speak until 4 p.m., 
local time on September 12, 2006.

ADDRESSES: You may submit comments, identified by ``PA-147-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-147-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, P.O. 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 Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of 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, 938.13, 938.15 
and 938.16.

II. Description of the Proposed Amendment

    By letter dated May 23, 2006 (Administrative Record Number PA 
793.11), Pennsylvania sent OSM a proposed program amendment to revise 
their program regulations at 25 Pa. Code. The submission includes the 
following: (1) Revisions to the Pennsylvania program initiated by 
Pennsylvania at 25 Pa. Code 86.17(e), 86.187(a)(2) and 86.283(c); (2) 
revisions intended to correct a typographical error in the State 
program at 25 Pa. Code 86.187(a)(1); (3) revisions intended to satisfy 
five required amendments codified in the Federal regulations at 30 CFR 
938.16(mm)-(qq); and (4) revisions to address a previous OSM 
disapproval of language at 25 Pa. Code 86.188 (Administrative Record 
Number PA 793.11). The Pennsylvania Department of Environmental 
Protection (PADEP or Department) believes that this amendment will make 
its program consistent with the Federal program and satisfy the 
required amendments at 30 CFR 938.16(mm)-(qq). The letter described 
Pennsylvania's intended program changes at 25 Pa. Code 86.17(e), 
86.187(a)(1), 86.187(b), 86.187(c) and 86.189(c)(2)-(c)(5), 86.188(b) 
and (c), 86.190(a), and 86.283(c). The full text of the proposed 
amendments is available for you to read

[[Page 50869]]

at the locations listed above under ADDRESSES.
    On October 24, 1991, OSM published a final rule requiring the PADEP 
to amend its program to be no less effective than the Federal program 
(56 FR 55080-55087). The required amendments concern reclamation of 
bond forfeiture sites, alternate reclamation plans for bond forfeiture 
sites, bond forfeiture sites where reclamation is unreasonable, 
unnecessary or impossible, and evaluation of bond forfeiture sites. In 
response, PADEP submitted an informal amendment on March 27, 2002, with 
draft proposed changes intended to satisfy five required amendments 
codified at 30 CFR 938.16(mm)-(qq). The regulatory process in 
Pennsylvania was delayed until the State proposed the changes to the 
Mining and Reclamation Board in 2005.
    On March 31, 2005, Pennsylvania sent a summary of the findings for 
those proposed regulatory changes to OSM (Administrative Record Number 
PA 793.09). By letter dated April 15, 2005 (Administrative Record 
Number PA 793.10), we provided Pennsylvania with our comments on their 
draft amendments.
    A summary of the proposed changes are as follows.

 25 Pa. Code 86.17(e) Reclamation Fees

    Pennsylvania has proposed a revision of this Subsection that would 
discontinue the collection of the Alternative Bonding System (ABS) $100 
per acre reclamation fee. Pennsylvania believes that this fee is no 
longer needed because the State now uses a Conventional Bonding System 
(CBS).
    Until 2001, Pennsylvania's bonding program was funded under its 
ABS, which included a central pool of money used for reclamation which 
was funded in part by a per-acre reclamation fee paid by operators of 
permitted sites, and supplemented by site bonds posted by those 
operators for each mine site. Because of growing problems with the 
solvency of ABS, in 2001, Pennsylvania began converting all active 
surface coal mining permits issued under the ABS, to a Full Cost 
Bonding (FCB) program. This FCB requires a permittee to post bonds in 
an amount sufficient to cover the estimated costs to complete 
reclamation in the event of bond forfeiture. The State believes that 
because all of its permittees are now subject to FCB, there is no 
longer a basis for maintaining the per acre reclamation fee, and is 
therefore, proposing to delete the per-acre fee requirement.

25 Pa. Code 86.187(a)(2) Use of Monies and 25 Pa. Code 86.188 
Definition of Reclamation--Eligible Sites Statement

    PADEP proposes to revise Section 86.187(a)(2), to include a 
requirement that the forfeited bond money be used ``only to reclaim 
land and restore water supplies affected by the surface mining 
operation upon which liability was charged on the bond, except as 
provided in Section 86.190 * * *'' The State also provided 
clarification of its policy on bond collection in a letter to OSM dated 
May 23, 2006 (Administrative Record No. PA 793.11). The clarification 
indicates that ``when a bond is collected, Pennsylvania earmarks the 
bond, assigning it to the site for which it was forfeited. It can only 
be used for that site unless it is released, pursuant to Section 
86.190.'' Before releasing the funds, PADEP stated that it ``conducts a 
rigorous review to assure that the bond money is not needed for the 
reclamation at the site for which the bond was forfeited.''

25 Pa. Code 86.283(c) Procedures (Financial Guarantees Program)

    Pennsylvania has proposed to remove the requirement relating to the 
per acre reclamation fees for remining areas for mine operators 
approved to participate in the financial guarantees program. The State 
has proposed this change for consistency with the change proposed in 
Section 86.17(e); PADEP believes that the removal of the $100 per acre 
reclamation fee, as discussed in the previous Section of this proposed 
amendment, will make this provision inapplicable.

25 Pa. Code 86.187(a)(1) Money Received From Fees

    Pennsylvania has proposed a revision of this Subsection to correct 
a typographical error. PADEP is deleting the reference to Section 
86.17(b) and replacing that correction with a reference to Section 
86.17(e).

30 CFR 938.16(mm), 25 Pa. Code 86.187(b) Reclamation of Bond Forfeiture 
Sites

    Required Amendment: Pennsylvania has proposed revisions of these 
Subsections to address a required amendment codified in the Federal 
regulations at 30 CFR 938.16(mm) (56 FR 55080-55087). The required 
program amendment requires that Pennsylvania delete 25 Pa. Code 
86.187(b)(1), or otherwise amend its program, by requiring that 
alternative reclamation plans comply with all applicable performance 
standards in accordance with 86.189(c)(2), (c)(3) or (c)(4), whichever 
is appropriate to be consistent with 30 CFR 800.50.
    The State is proposing to revise Section 86.187(b) to make clear 
that an alternative reclamation plan must meet applicable performance 
standards identified in Section 86.189(c) and to assure that the 
Department will notify and consult with the landowner prior to 
expending funds for reclamation of a bond forfeiture site in all cases 
and not just when an alternative reclamation plan is being considered.

30 CFR 938.16(nn)-(oo), 25 Pa. Code 86.187(c) and 86.189(c)(2)-(c)(5) 
Alternate Reclamation Plans for Bond Forfeiture Sites

    Required Amendment: Pennsylvania has proposed revisions of these 
Subsections to address required amendments published in the Federal 
regulations at 30 CFR 938.16(nn) and (oo) (56 FR 55080-55087). The 
required amendment requires that Pennsylvania amend 25 Pa. Code 
86.187(c) and Section 18(c) of the Pennsylvania Surface Mining and 
Conservation Act or otherwise amend its program to be no less effective 
than the Federal regulations at 30 CFR 816.133(a) and 817.133(a). The 
required amendments require Pennsylvania to require that alternative 
postmining land use determinations for sites with forfeited bonds under 
the Federal interim program or under Pennsylvania's permanent program 
be made to ensure that all disturbed areas are restored to conditions 
that are capable of supporting either the uses they were capable of 
supporting before any mining, or higher or better uses.
    The State is proposing to revise Subsection 86.189(c)(5), to delete 
the language requiring reclamation plans for bond forfeiture sites 
allowing the sites to be made suitable at a minimum for agriculture, 
forests, recreation, wildlife or water conservation. Subsection 
86.187(c) is proposed to be revised further by adding language 
requiring the alternate reclamation plans to provide for restoration of 
the disturbed land to conditions that are capable of supporting either 
the uses they were capable of supporting before any mining, or higher 
or better uses. Paragraphs (c)(2)-(4) of Section 86.189 are proposed to 
be revised to delete the reference to paragraph (5). The Federal 
regulations at 30 CFR 816.133(a) and 817.133(a) require that all 
disturbed areas be restored to uses they were capable of supporting 
before any mining, or to a higher or better use. Paragraph (c)(5) is 
being deleted to render Section 86.189 consistent with the Federal 
provisions.

[[Page 50870]]

    Both 30 CFR 938.16(nn) and (oo) require that Pennsylvania amend 25 
Pa. Code 86.187(b)(1) and Section 18(c) of the Pennsylvania Surface 
Mining and Conservation Act or otherwise amend its program to be no 
less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that 
alternative postmining land use determinations for sites with forfeited 
bonds under the Federal interim program or under Pennsylvania's 
permanent program be made to ensure that all disturbed areas are 
restored to conditions that are capable of supporting either the uses 
they were capable of supporting before any mining, or higher or better 
uses.

30 CFR 938.16(pp)-(qq), 25 Pa. Code 86.190(a) Bond Forfeiture Sites 
Where Reclamation Is Unreasonable, Unnecessary Or Impossible

    Required Amendment: Pennsylvania has proposed revisions of these 
Subsections to address required program amendments codified in the 
Federal regulations at 30 CFR 938.16(pp) and (qq) (56 FR 55080-55087), 
which require that the State delete words ``but are not limited to'' 
from the introductory paragraph of Section 86.190(a), as well as the 
entire Subsection (a)(3) to be consistent with 30 CFR 800.50.
    Pennsylvania proposes to delete Subsection (a)(3) which allows the 
landowner of a bond forfeiture site to prevent reclamation. The State 
is also proposing to revise Subsection (a) to delete language that 
allows for additional reclamation of bond forfeiture sites for reasons 
beyond those specifically listed in Subsection (a).

30 CFR 938.15, 25 Pa Code 86.188(b) and (c) Evaluation of Bond 
Forfeiture Sites

    Required Amendment: Pennsylvania has proposed revisions of these 
Subsections to address an OSM disapproval of Section 86.188 to the 
extent that Subsections (b) and (c) would allow bond forfeiture funds 
posted for and needed to complete reclamation of a specific site be 
used for reclamation of other sites. In that disapproval, OSM stated 
that the provision would render the Pennsylvania program less effective 
than the Federal regulations at 30 CFR 800.50(b)(2). (See 56 FR 55084, 
October 24, 1991).
    In this submission, the State is proposing to revise Subsections 
86.188(b) and (c) to delete the language in paragraphs (b)(5) and 
(c)(3). The PADEP stated in its May 23, 2006, letter to OSM that this 
proposed revision will make it clear that bond forfeiture funds posted 
for and still needed to complete reclamation of the specific site for 
which the bonds were forfeited will not be used for reclamation of 
other sites until reclamation of the forfeited site has been completed. 
The PADEP also stated that the Department fully intends to maintain 
adequate bonding so that funds are available for the completion of 
reclamation should the bonds be forfeited (Administrative Record No. PA 
793.11).

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 approve the amendments, they will 
become part of the Pennsylvania program.

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. We may 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 Pittsburgh Field Division identified above may 
not be logged in.

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-147-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 
September 12, 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

[[Page 50871]]

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.).

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: August 3, 2006.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E6-14229 Filed 8-25-06; 8:45 am]
BILLING CODE 4310-05-P