[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Rules and Regulations]
[Pages 56619-56623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19661]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-149-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Pennsylvania regulatory 
program (the ``Pennsylvania program'') regulations under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The 
amendment adds new section 25 Pennsylvania Code (PA Code) 86.6 which 
provides for the exemption from the permitting requirements of 25 PA 
Code Chapters 87 and 88, relating to surface mining of coal, when 
extraction of coal is incidental to government-financed construction or 
government-financed reclamation projects and specified requirements are 
met.

DATES: Effective Date: October 4, 2007.

FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field 
Division, Telephone: (717) 782-4036, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Pennsylvania program on July 30, 1982. You 
can find background information on the Pennsylvania program, including 
the Secretary's findings, the disposition of comments, and conditions 
of

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approval in the July 30, 1982, Federal Register (47 FR 33050). You can 
also find later actions concerning Pennsylvania's program and program 
amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16.

II. Submission of the Amendment

    By letter dated December 18, 2006, the Pennsylvania Department of 
Environmental Protection (PADEP) sent us an amendment to revise its 
program regulations at 25 Pennsylvania Code (Administrative Record No. 
PA 891.00) under SMCRA (30 U.S.C. 1201 et seq.). The revisions that 
Pennsylvania proposed at its own initiative concern program changes to 
address the exemption of permitting requirements when the extraction of 
coal is incidental to government-financed construction or government-
financed reclamation projects.
    We announced receipt of the proposed amendment in the February 6, 
2007, Federal Register (72 FR 5380). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
No. PA 891.03). The public comment period ended on March 8, 2007. We 
did not hold a public hearing or meeting because no one requested one. 
We did not receive any public comments. We received written comments 
from three Federal agencies: Mine Safety and Health Administration, 
District 1 (Administrative Record No. 891.04); Mine Safety and Health 
Administration, District 2 (Administrative Record No. 891.02); and 
Environmental Protection Agency (Administrative Record No. 891.05).

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment which amends Chapter 86 of the Pennsylvania 
Code by adding the subsection 86.6, Extraction of coal incidental to 
government-financed construction or government-financed reclamation. 
Any revisions that we do not specifically discuss below concern 
nonsubstantive wording, editorial, or re-numbering of section changes 
and are approved here without discussion.
    The Federal regulations regarding government-financed construction 
contracts are found at: (1) 30 CFR part 707, Exemption for Coal 
Extraction Incident to Government-Financed Highway or Other 
Construction. This part establishes the procedures for determining 
those surface coal mining and reclamation operations which are exempt 
from permitting requirements because the extraction of coal is an 
incidental part of Federal, State, or local government-financed highway 
or other construction and meets specified criteria that ensure that the 
construction is government-financed and that the extraction of coal is 
incidental to it; and (2) 30 CFR 874.17, Abandoned Mine Land agency 
procedures for reclamation projects receiving less than 50% government 
financing. This section sets forth the requirements for the AML agency 
when considering an abandoned mine land reclamation project as 
government-financed construction under 30 CFR part 707. This section 
only applies if the level of funding for the construction will be less 
than 50% of the total cost because of planned coal extraction. 
Pennsylvania had previously adopted the provisions of 30 CFR part 874 
in prior rulemaking. This amendment concerns the provisions of 30 CFR 
part 707.
    This amendment concerns the exemption from the permitting 
requirements of 25 Pa Code Chapters 87 and 88 when the extraction of 
coal is incidental to government-financed construction contracts or 
government-financed abandoned mine land reclamation projects. 
Pennsylvania has added a new section, 25 Pa Code 86.6, to address the 
definitions, eligibility requirements (applicability) for exemption, 
and information to be maintained on-site. With a few exceptions, this 
new section contains language that mirrors the Federal definitions, 
eligibility requirements, etc. provided at 30 CFR part 707. The 
specific sections and findings are provided below.
    25 Pa Code 86.6(a)(1) provides that the PADEP be provided an 
opportunity to provide comments to the government entity financing the 
construction or reclamation during the site selection process and prior 
to development of final construction plans regarding the potential 
environmental impacts of the project. There is no Federal counterpart 
to this requirement. However, this change requires additional 
coordination to assure that environmental impacts are considered. 
Therefore, we find that the addition of 25 Pa Code 86.6(a)(1) does not 
render the Pennsylvania program inconsistent with SMCRA or the Federal 
regulations and can be approved.
    25 Pa Code 86.6(a)(2) provides for the eligibility limits of the 
extraction of coal as it pertains to the right-of-way for roads, 
utility lines, or other similar construction. This is consistent with 
the Federal regulations at 707.5, Definitions. However, there is no 
mention that any extraction outside of the right-of-way or boundary of 
the area is subject to the requirements of the Act as mentioned in the 
Federal regulations at 707.5. One can deduce that once it is determined 
that the exemption criteria cannot be met, the exemption does not apply 
and the applicability of this chapter does not exist. Therefore, we 
find that the addition of 25 Pa Code 86.6(a)(2) is no less stringent 
than SMCRA and no less effective than the Federal regulations and can 
be approved.
    25 Pa Code 86.6(a)(3) and (a)(4) provide the cost sharing 
requirements necessary for the construction project or reclamation to 
be eligible for consideration under this subchapter.
    The language provides that the construction or reclamation be 
funded by a unit of government and it be funded 50% or more by funds 
appropriated from the government unit's budget or obtained from general 
revenue bonds. Funding at less than 50% may qualify if the construction 
is undertaken as a Department-approved reclamation contract or project.
    There is no mention of the requirement for the project to meet the 
eligibility requirements of Title IV of SMCRA. However, the 
Pennsylvania statute [PA SMCRA Section 4.8(c)(1)] makes specific 
reference to abandoned mine land reclamation eligibility as a condition 
to secure special authorization under this section and the regulations 
must be read in the context of the authorizing statute, as it serves to 
limit the application of 86.6(a)(4) to abandoned mine land reclamation. 
Furthermore, the AML plan as amended in 1999 includes provisions 
requiring coordination between the AML and Title V Agency and an 
authorization which includes the requirement that the project be an 
abandoned mine land reclamation project. Because the AML eligibility 
requirement is provided in the statute and in the AML plan, we find 
that the addition of 25 Pa Code 86.6(a)(3) and (4) is no less stringent 
than SMCRA and no less effective than the Federal regulations and can 
be approved.
    25 Pa Code 86.6(a)(5) and (a)(6) provide that the construction be 
performed under a bond, contract and specifications that substantially 
provide for and require protection of the environment, reclamation of 
the affected area, and handling of excavated materials in a manner 
consistent with the acts and regulations implementing the acts. In 
addition, it provides that the Department approve the standards and 
specifications for protection of the environment that will apply to the 
project when potential adverse

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environmental impacts have been identified. There is no Federal 
counterpart to this requirement. However, these requirements provide 
additional assurance that reclamation will be performed in a 
satisfactory manner. Therefore, we find that the addition of 25 Pa Code 
86.6(a)(5) and (a)(6) do not render the Pennsylvania program 
inconsistent with SMCRA or the Federal regulations and can be approved.
    25 Pa Code 86.6(b) provides that construction funded through 
government financing agency guarantees, insurance, loans, funds 
obtained through industrial revenue bonds or their equivalent or in-
kind payments does not qualify as government-financed construction. 
This is consistent with the Federal regulations at 30 CFR 707.5, 
Definitions. We find that the addition of 25 Pa Code 86.6(b) is no less 
stringent than SMCRA and no less effective than the Federal regulations 
and can be approved.
    25 Pa Code 86.6(c) provides that documentation must be available 
for inspection on-site when a person extracting coal incidental to 
government-financed construction or government-financed reclamation 
extracts more than 250 tons of coal or affects more than 2 acres. The 
required documentation is provided in subsections 86.6(c)(1) through 
(c)(4). Subsections 86.6(c)(1) through (c)(3) are consistent with the 
Federal regulations at 30 CFR 707.12(a), (b), and (c). Therefore, we 
find that addition of 25 Pa Code 86.6(c)(1) through (c)(3) is no less 
stringent than SMCRA and no less effective than the Federal regulations 
and can be approved.
    There is no Federal counterpart for subsection 86.6(c)(4), which 
requires that when an area is wholly or partially within an area 
designated unsuitable for mining by the Environmental Quality Board 
under 86.130, a copy of the detailed report required by subsection 
86.124(e) relating to procedures (initial processing, recordkeeping and 
notification requirements) must be maintained on the site and made 
available for inspection. The change reflects an additional information 
requirement and therefore, we find that the addition of 25 Pa Code 
86.6(c)(4) does not render the Pennsylvania program inconsistent with 
SMCRA or the Federal regulations and can be approved.
    25 Pa Code 86.6(d) provides that government-financed construction 
projects and government-financed reclamation must comply with Chapters 
91-96, 102 and 105. The reference requires that the project and 
reclamation comply with the State regulations pertaining to water 
quality, National Pollutant Discharge Elimination System, sediment 
control, waste management, and dam safety. There is no Federal 
counterpart for subsection 86.6(d). The Pennsylvania regulations 
require compliance with other environmental standards and, therefore, 
we find that the addition of 25 Pa Code 86.6(d) does not render the 
Pennsylvania program inconsistent with SMCRA or the Federal regulations 
and can be approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment through the Federal 
Register Notice dated February 6, 2007, (72 FR 5380) (Administrative 
Record No. PA 891.03). We did not receive any comments from the public.

Federal Agency Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the 
Pennsylvania program (Administrative Record No. PA 891.01). The Mine 
Safety and Health Administration (MSHA), District 1, responded 
(Administrative Record No. PA 891.04) and stated that it did not have 
any comments or concerns regarding this request. The Mine Safety and 
Health Administration (MSHA), District 2, responded (Administrative 
Record No. PA 891.02) and stated that in the case of government-
financed construction or other government-financed reclamation 
projects, MSHA reserves the right to assess each project where the 
extraction of coal is incidental to the project, to determine 
jurisdictional standing.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we 
are required to get a written concurrence from EPA for those provisions 
of the program amendment that relate to air or water quality standards 
issued under the authority of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Pennsylvania proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.
    On December 20, 2006, we requested comments on the amendment from 
EPA (Administrative Record No. PA 891.01). The EPA, Region III, 
responded (Administrative Record No. 891.05) and stated that it did not 
identify any inconsistencies with the Clean Water Act or any other 
statutes or regulations under its jurisdiction.

V. OSM's Decision

    Based on the above findings, we approve the amendment Pennsylvania 
sent to us on December 18, 2006. We are approving the changes to the 
Pennsylvania program at 25 Pa. Code 86.6.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 938, which codify decisions concerning the Pennsylvania 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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 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 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

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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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of Section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(c)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 amendment 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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 government 
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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 30, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.

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

PART 938--PENNSYLVANIA

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

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


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2. Section 938.15 is amended by adding a new entry in the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

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  Original amendment submission date     Date of final publication               Citation/description
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                                                  * * * * * * *
December 18, 2006....................  October 4, 2007..............  25 Pa. Code 86.6 [add].
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[FR Doc. E7-19661 Filed 10-3-07; 8:45 am]
BILLING CODE 4310-05-P