[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Rules and Regulations]
[Pages 60944-60947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24477]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-152-FOR; Docket ID: OSM-2008-0019]


Pennsylvania Regulatory Program

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

ACTION: Final Rule; rescission of a modified required amendment.

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SUMMARY: We are announcing a rescission of a required amendment that we 
imposed, in modified form, upon the Pennsylvania regulatory program 
(the ``Pennsylvania program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). We had modified a previous 
version of the required amendment, which we originally imposed in 1991. 
The United States Court of Appeals for the Third Circuit, and the 
United States District Court for the Middle District of Pennsylvania, 
on remand from the Third Circuit, set aside our termination of the 1991 
required amendment. We are rescinding the modified required amendment 
because under those court actions, no action on our part was necessary 
to implement the Courts' orders.

DATES: Effective Date: October 15, 2008.

FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field

[[Page 60945]]

Division, Telephone: (717) 782-4036, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program
II. The Modified Required Amendment
III. The Basis for Rescission of the Modified Required Amendment
IV. OSM's Decision
V. 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, to supplement site-specific 
bonds posted by operators for each mine site. This pool was funded by a 
per-acre reclamation fee paid by operators of permitted sites.
    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), 
56 FR 24687. 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. (PFSC) et al. v. 
Norton No. 1:03-CV-2220. The district court ruled in OSM's favor, but 
was reversed by the United States Court of Appeals for the Third 
Circuit. Subsequently, on November 1, 2007, the District court set 
aside our October 7, 2003, termination of the 1991 required amendment. 
The appellate court's decision is discussed in the section below.
    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. The Modified Required Amendment

    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.
    Because the Third Circuit in PFSC v. Kempthorne, Id., reversed the 
District Court, which had upheld our termination of the 1991 required 
amendment at 30 CFR 938.16(h), we decided to impose a modified version 
of amendment ``(h),'' which we believed was fully consistent with the 
rationale of the Third Circuit's decision while accounting for 
circumstances which had changed since 1991. Issuance of this modified 
required amendment was announced in the July 8, 2008, Federal Register 
at 73 FR 38918. It is this modified version of the required amendment 
that we are hereby rescinding in this action.

III. The Basis for Rescission of the Modified Required Amendment

    After we published the modified version of 30 CFR 938.16(h), the 
Pennsylvania Federation of Sportsmen's Clubs, along with the other 
Plaintiffs, filed a Motion to Reopen, to Substitute Party, and for 
Contempt in the matter of PFSC v. Kempthorne, No. 1:03-CV-2220 (M.D. 
Pa.). The Plaintiffs alleged that the Federal Defendants were in 
contempt of the district court's November 1, 2007, order on remand from 
the Third Circuit decision in PFSC v. Kempthorne, 497 F.3d 337 (3rd 
Cir. 2007), because they revised 30 CFR 938.16(h) from its 1991 form. 
The Plaintiffs contend that the Federal Defendants disobeyed the 
district court's order, which the Plaintiffs claim did not authorize 
any modification to the required amendment. PFSC v. Kempthorne, No. 
1:03-CV-2220 (M.D. Pa.) (Motion to Reopen, to Substitute Party, and for 
Contempt filed July 16, 2008)
    In order to resolve the matter of the contempt proceeding, and 
without admitting any liability with respect to the Plaintiffs' 
allegations put forth in said proceeding, we have decided to rescind 
the revised version of the required amendment at 30 CFR 938.16(h). 
Thus, any potential conflict with the district court's November 1, 
2007, Order on Remand, which set aside our decision to remove the 1991 
required amendment, is hereby removed.

IV. OSM's Decision

    Based on the above discussion, we hereby rescind the required 
amendment at 30 CFR 938.16(h), as it was revised in the July 8, 2008, 
Federal Register at 73 FR 38918.
    This rule is being issued without prior public notice or 
opportunity for public comment. The Administrative Procedure Act (APA) 
(5 U.S.C. 553) provides an exception to the notice and comment 
procedures when an agency finds there is good cause for dispensing with 
such procedures on the basis that they are impracticable, unnecessary 
or contrary to the public interest. In view

[[Page 60946]]

of the litigation and court order, we have determined that under 5 
U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice 
of proposed rulemaking and public comment procedures for this rule. For 
the same reason, we believe there is good cause under 5 U.S.C. 
553(d)(3) of the APA to have the rule become effective on a date that 
is less than 30 days after the date of publication in the Federal 
Register. This rescission is being made effective immediately in order 
to encourage Pennsylvania to bring its program into conformity with the 
Federal standards without undue delay. Consistency of State and Federal 
standards is required by SMCRA.

V. 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 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: September 5, 2008.
Thomas D. Shope,
Regional Director, Appalachian Region.

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

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PART 938--PENNSYLVANIA

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

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


Sec.  938.16  [Amended]

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2. In Sec.  938.16, remove paragraph (h).

[FR Doc. E8-24477 Filed 10-14-08; 8:45 am]
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