[Federal Register Volume 74, Number 55 (Tuesday, March 24, 2009)]
[Rules and Regulations]
[Pages 12265-12267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6403]


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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; required amendment.

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SUMMARY: We are reinstating a requirement for the Pennsylvania 
regulatory program (the ``Pennsylvania program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The 
requirement deals with documentation for the bonding provisions of the 
Pennsylvania program.

DATES: Effective Date: March 24, 2009.

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. The Modified Required Amendment
III. OSM's Decision
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 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 approval in the July 30, 1982, Federal Register notice (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.

Pennsylvania's Bonding Program

    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 Plaintiffs claimed, in relevant part, that

[[Page 12266]]

reclamation obligations already incurred under an ABS remain, even 
after the ABS is prospectively converted to a CBS. Thus, the Plaintiffs 
contended, the requirement to comply with the Federal ABS provision at 
30 CFR 800.11(e) was not mooted by the conversion to a CBS. As noted 
above, the Defendants' position was that the conversion to the CBS 
eliminated the obligations imposed by 30 CFR 800.11(e), and that, as a 
result, the requirements contained in the required amendment at 30 CFR 
938.16(h) were no longer applicable. The district court ruled in OSM's 
(i.e., the Defendants') 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.

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. 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 announced the rescission 
of the revised version of the required amendment at 30 CFR 938.16(h) in 
an October 15, 2008, Federal Register notice 73 FR 60944. Nevertheless, 
the plaintiffs subsequently raised a concern that the October 15, 2008 
rescission notice did not clearly provide for reinsertion of the 
original 1991 version of 30 CFR 938.16(h). Therefore, again in order to 
resolve plaintiffs' latest concerns, but without admitting any 
liability with respect to the plaintiffs' latest allegations, we have 
decided to take the action set forth in Section III, below.

III. OSM's Decision

    Based on the above discussion we hereby reinstate, with one 
exception, the required amendment at 30 CFR 938.16(h), as it was 
published in the May 31, 1991 Federal Register, at 56 FR 24687. The 
last sentence of the May 31, 1991 required amendment is not being 
reinstated because the plaintiffs did not contest our 2003 decision to 
remove this portion of the required amendment before the United States 
Court of Appeals for the Third Circuit in PFSC v. Kempthorne, supra. 
The sentence that will not be reinstated provided as follows: In 
addition, Pennsylvania shall clarify the procedures to be used for 
bonding the surface impacts of underground mines and the procedures to 
reclaim underground mining permits where the operator has defaulted on 
the obligation to reclaim.

IV. Procedural Determinations

Administrative Procedure Act

    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 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. Also, the final rule 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.

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 possible, this rule meets the applicable standards of 
Subsections (a) and (b) of that Section.

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.

[[Page 12267]]

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 the fact that our decision affects 
the Pennsylvania regulatory program and will have no effect on 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 13.5A(2)).

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.). 
This certification is based on the fact that the required amendment 
simply requires the State of Pennsylvania to submit information 
sufficient to demonstrate that the revenues generated by the collection 
of the reclamation fee will assure that the Surface Mining Conservation 
and Reclamation Fund can be operated in a manner that will meet the 
requirements of 30 CFR 800.11(e).

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 on the fact that the required 
amendment simply requires the State of Pennsylvania to submit 
information sufficient to demonstrate that the revenues generated by 
the collection of the reclamation fee will assure that the Surface 
Mining Conservation and Reclamation Fund can be operated in a manner 
that will meet the requirements of 30 CFR 800.11(e).

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: February 3, 2009.
Michael K. Robinson,
Acting 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:

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, add paragraph (h) to read as follows:
* * * * *
    (h) By November 1, 1991, Pennsylvania shall submit information, 
sufficient to demonstrate that the revenues generated by the collection 
of the reclamation fee, as amended in Sec.  86.17(e), will assure that 
the Surface Mining Conservation and Reclamation Fund can be operated in 
a manner that will meet the requirements of 30 CFR 800.11(e). 
Pennsylvania could provide such a demonstration through an actuarial 
study showing the Fund's soundness or financial solvency.
* * * * *
 [FR Doc. E9-6403 Filed 3-23-09; 8:45 am]
BILLING CODE 4310-05-P