[Federal Register Volume 73, Number 131 (Tuesday, July 8, 2008)]
[Rules and Regulations]
[Pages 38918-38920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15432]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-151-FOR; Docket ID: OSM-2008-0013]


Pennsylvania Regulatory Program

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

ACTION: Final rule; disapproval of amendment and reinstatement of a 
required amendment

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SUMMARY: We are disapproving two changes to the Pennsylvania regulatory 
program (the ``Pennsylvania program'') regulations under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act) which 
were previously submitted under amendment PA-147-FOR. While we approved 
the other proposed changes related to PA-147-FOR, we deferred our 
decision on two changes pertaining to the discontinuation of a $100 per 
acre reclamation fee pending the outcome of litigation before the 
United States Court of Appeals for the Third Circuit in the matter of 
Pennsylvania Federation of Sportsmen's Clubs Inc. et al. v. Norton, 
(PFSC v. Norton) No. 06-1780. We now have the U.S. Court of Appeals 
decision before us. The decision sets aside our October 7, 2003, final 
rule removing a required amendment pertaining to the Pennsylvania 
alternative bonding system. Therefore, we are now disapproving the two 
changes pertaining to the discontinuation of the fee. We are also 
reinstating a required amendment that has been modified to be 
consistent with the court's decision.

DATES: Effective Date: July 8, 2008.

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 Original Amendment
III. Court Decision
IV. OSM's Findings
V. Summary and Disposition of Comments
VI. OSM's Decision
VII. 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.
    From 1982 until 2001, Pennsylvania's bonding program for surface 
coal mines, coal refuse reprocessing operations and coal preparation 
plants, was funded under an Alternative Bonding System (ABS), which 
included a central pool of money (Surface Mining Conservation and 
Reclamation Fund) used for reclamation. This pool 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. This is the reclamation fee, established at 25 Pa. Code 86.17(e), 
that Pennsylvania proposed to eliminate.
    In 1991, our oversight activities determined that Pennsylvania's 
ABS contained unfunded reclamation liabilities for backfilling, 
grading, and revegetation and we determined that the ABS was 
financially incapable of abating or treating pollutional discharges 
from bond forfeiture sites under its purview. As a result, on May 31, 
1991, we imposed the required amendment codified at 30 CFR 938.16(h). 
That amendment required Pennsylvania to demonstrate that the revenues 
generated by its collection of the reclamation fee would assure that 
its Surface Mining Conservation and Reclamation Fund (Fund) could be 
operated in a manner that would meet the ABS requirements contained in 
30 CFR 800.11(e). After a decade of trying to address the problems with 
the ABS, the Pennsylvania Department of Environmental Protection 
(PADEP) terminated the ABS in 2001 and began converting active surface 
coal mining permits to a Conventional Bonding System (CBS) or ``full-
cost'' bonding program. This CBS requires a permittee to post a site 
specific bond in an amount sufficient to cover the estimated costs to 
complete reclamation in the event of bond forfeiture.
    OSM published a final rule on October 7, 2003, removing the 
required amendment at 30 CFR 938.16(h) on the basis that the conversion 
from an ABS to a CBS rendered the requirement to comply with 30 CFR 
800.11(e) moot. Subsequent to these OSM actions, a lawsuit was filed in 
the U.S. District Court for the Middle District Court of Pennsylvania, 
Pennsylvania Federation of Sportsmen's Clubs Inc. et al. v. Norton No. 
1:03-CV-2220. It was that case, while initially dismissed by the 
district court, that ultimately leads to the Third Circuit decision 
that brings us to this action today.
    You can find background information on the Pennsylvania program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval in the July 30, 1982, Federal Register (47 FR 
33050). You can also find later actions concerning Pennsylvania's 
program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 
and 938.16.

II. Submission of the Original Amendment

    By letter dated May 23, 2006, the PADEP sent us an amendment to 
revise its program regulations at 25 Pennsylvania Code (Pa. Code) 
(Administrative Record No. PA 793.11). Pennsylvania sent the amendment 
in response to five required program amendments. The proposed amendment 
also included four additional changes which were made at Pennsylvania's 
own initiative. Two of the four additional changes that Pennsylvania 
proposed concerned money received from reclamation fees intended to 
supplement a reclamation bond pool.
    Because PADEP revised its bonding requirements and is now requiring 
all mine permits to post a full cost reclamation bond, the PADEP 
contended that there was no longer a basis for maintaining the 
reclamation fee. Pennsylvania submitted a request to discontinue the 
collection of the $100 per acre reclamation fee authorized under 25 Pa. 
Code 86.17(e) under Amendment No. PA-147-FOR by adding the following 
sentence ``This fee shall not be required after (effective date of this 
rulemaking).''
    Pennsylvania also amended 25 Pa. Code by removing section 86.283(c) 
since it referenced the reclamation fee in relation to remining areas 
for mine operators approved to participate in the financial guarantees 
program. PADEP submitted the amendment to create consistency with the 
proposed amendment to 86.17(e) that would delete the reclamation fee.
    While we approved the other requested changes related to PA-147-
FOR, we deferred our decision on the two changes pertaining to the 
discontinuation of a $100 per acre reclamation fee. We deferred our 
decision because Pennsylvania's decision to eliminate its ABS in favor 
of a CBS had been challenged, and the matter was pending before the 
United States Court of Appeals for the Third

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Circuit in Pennsylvania Federation of Sportsmen's Clubs v. Kempthorne, 
No. 06-1780. (PFSC v. Kempthorne).
    Specifically, if the Third Circuit were to rule that Pennsylvania 
could not discontinue funding for surface coal mining sites where 
operators defaulted on their reclamation obligations before the 
conversion to a CBS, and for sites with operators who subsequently 
default due to failure to obtain adequate full-cost bonds, then OSM 
could not approve the proposed elimination of the reclamation fee. 
Therefore, in the interest of judicial economy, we deferred our 
decision on this proposed change until final disposition of the PFSC v. 
Kempthorne matter.

III. Court Decision

    On August 2, 2007, the United States Court of Appeals for the Third 
Circuit decided PFSC v. Kempthorne, 497 F.3d 337 (3rd Cir. 2007). At 
issue, relevant to this notice, was whether OSM properly terminated the 
requirement that Pennsylvania demonstrate that its Surface Mining 
Conservation and Reclamation Fund was in compliance with 30 CFR 
800.11(e).
    The Third Circuit concluded: ``while it is true that the `ABS Fund' 
continues to exist in name, it no longer operates as an ABS, that is, 
as a bond pool, to provide liability coverage for new and existing 
mining sites.'' 497 F.3d at 349. However, the Court went on to 
``conclude that 800.11(e) continues to apply to sites forfeited prior 
to the CBS conversion.'' Id. at 353. In commenting further on 30 CFR 
800.11(e), the Court stated ``The plain language of this provision 
requires that Pennsylvania demonstrate adequate funding for mine 
discharge abatement and treatment at all ABS forfeiture sites.'' Id. at 
354.

IV. OSM's Findings

    PADEP had proposed elimination of the $100 per acre fee given that 
the ABS had been terminated and active mine sites permitted under the 
ABS had been converted to full-cost bonding. However, elimination of 
the $100 per acre fee would essentially eliminate income to the Fund, 
thus reducing the amount of funds available for the reclamation of the 
forfeited sites bonded under the Fund. Therefore, an approval of the 
proposed change at 25 Pa Code 86.17(e) or the deletion of 25 Pa Code 
86.283(c) would be in conflict with the Court's decision.
    Also, because the Third Circuit decision set aside our 2003 removal 
of the required amendment at 30 CFR 938.16(h), we are now reinstating 
an amendment ``(h),'' which has been modified to be consistent with the 
Court's decision.

V. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the original amendment 
(Administrative Record No. PA 793.17). We received comments from one 
organization, the Citizens for Pennsylvania's Future (PennFUTURE) 
(Administrative Record No. PA 793.18). PennFUTURE objected to the 
portion of the program amendment that would discontinue the collection 
of Pennsylvania's reclamation fee at 25 Pa. Code 86.17(e), and 
requested that we defer our decision on this proposed change until such 
time as the matter of PFSC v. Kempthorne is decided.
    As we noted above, we deferred our decision with respect to the 
proposed amendment to 86.17(e), as well as on an ancillary proposed 
change at 86.283(c). With the recent Court decision, we have now 
concluded that we cannot approve the requested changes.

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 original amendment from 
various Federal agencies with an actual or potential interest in the 
Pennsylvania program (Administrative Record No. PA 793.12). The Mine 
Safety and Health Administration (MSHA), District 1, responded 
(Administrative Record No. PA 793.13) and stated that it did not have 
any comments or concerns. The Natural Resources Conservation Service 
responded (Administrative Record No. PA 793.14) and stated that it did 
not have any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(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 June 6, 2006, we requested comments on the amendment from EPA 
(Administrative Record No. PA 793.15). The EPA, Region III, responded 
and stated that it did not identify any inconsistencies with the Clean 
Water Act or any other statutes or regulations under its jurisdiction.

VI. OSM's Decision

    Based on the above findings, we disapprove the amendment 
Pennsylvania sent to us on May 23, 2006, pertaining to the termination 
of the collection of the reclamation fee at 25 Pa. Code 86.17(e) and 
86.283(c). Because we are disapproving the elimination of the fee, 
Pennsylvania must continue to collect this fee in accordance with 25 
Pa. Code 86.17(e). For the reasons stated above, we are also 
disapproving the proposed deletion of 25 Pa Code 86.283(c).
    We are also reinstating a required amendment formerly codified at 
30 CFR 938.16(h), and modifying it to be consistent with the court's 
decision.
    As reinstated, 30 CFR 938.16(h) will provide as follows:

    By September 8, 2008, Pennsylvania must either submit 
information sufficient to demonstrate that revenues to the Surface 
Mining Conservation and Reclamation Fund (Fund) are adequate to 
fulfill outstanding reclamation obligations at forfeited sites for 
which the Fund provides partial bond coverage under 30 CFR 
800.11(e), or amend its program to otherwise meet those outstanding 
financial obligations at these forfeited sites.

    This final rule is being made effective immediately to expedite the 
State program amendment process and to encourage States to bring their 
programs into conformity with the Federal standards without undue 
delay. Consistency of State and Federal standards is required by SMCRA.

VII. 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

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because each program is drafted and promulgated by a specific State, 
not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 
1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 
732.17(h)(10), decisions on proposed State regulatory programs and 
program amendments submitted by the States must be based solely on a 
determination of whether the submittal is consistent with SMCRA and its 
implementing Federal regulations and whether the other requirements of 
30 CFR Parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Government

    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 (NEPA) (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: June 23, 2008.
Thomas D. Shope,
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.


0
2. Section 938.12 is amended by adding paragraph (e) to read as 
follows:


Sec.  938.12  State statutory, regulatory, and proposed program 
amendment provisions not approved.

* * * * *
    (e) We are not approving the following amendments that Pennsylvania 
submitted on May 23, 2006:
    (1) At 25 Pa. Code 86.17(e), the sentence ``This fee shall not be 
required after (effective date of this rulemaking).''
    (2) At 25 Pa. Code 86.283(c), the proposed deletion of the entire 
subsection.

0
3. Section 938.16 is amended by adding paragraph (h) to read as 
follows:


Sec.  938.16  Required regulatory program amendments.

* * * * *
    (h) By September 8, 2008, Pennsylvania must either submit 
information sufficient to demonstrate that revenues to the Surface 
Mining Conservation and Reclamation Fund (Fund) are adequate to fulfill 
outstanding reclamation obligations at forfeited sites for which the 
Fund provides partial bond coverage under 30 CFR 800.11(e), or amend 
its program to otherwise meet those outstanding financial obligations 
at these forfeited sites.
* * * * *
 [FR Doc. E8-15432 Filed 7-7-08; 8:45 am]
BILLING CODE 4310-05-P