[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Rules and Regulations]
[Pages 25874-25877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10563]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-155-FOR; Docket ID: OSM-2010-0003]


Pennsylvania Regulatory Program

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

ACTION: Final rule; removal of required amendment.

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SUMMARY: We are approving a request by Pennsylvania to remove a 
required amendment to Pennsylvania's regulatory program (the 
``Pennsylvania program'') regulations under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). The provision that we 
are removing required Pennsylvania to demonstrate that all applications 
for surface mining permits

[[Page 25875]]

in Pennsylvania include the specific information for all cessation 
orders received by the applicant and anyone linked to the applicant 
through ownership and control, prior to the date of the application.

DATES: Effective Date: This rule is effective May 2, 2012.

FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field 
Division, Harrisburg Office, Office of Surface Mining Reclamation and 
Enforcement, Telephone: (717) 782-4036, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description and 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).
    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. Description and Submission of the Amendment

    By letter dated March 4, 2010 (Administrative Record No. PA 
844.14), Pennsylvania sent us a request to remove a required program 
amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). The 
required amendment was imposed on the Pennsylvania program on December 
30, 1992, Federal Register (57 FR 62222), and was codified at 30 CFR 
938.16(bbb). The required amendment states the following: By May 1, 
1993, Pennsylvania shall submit a proposed amendment to Section 
86.63(a)(3) to require that all applications for surface mining permits 
include the specific information required by Section 86.63(a)(3)(i)-
(viii) for all cessation orders received, by the applicant and anyone 
linked to the applicant through ownership and control, prior to the 
date of the application.
    Pennsylvania provided the following information as support for its 
request for removal.
    Pennsylvania states that under its program, a cessation order is a 
type of violation notice. A cessation order is a compliance order that 
requires cessation of all or part of a mining operation. Pennsylvania 
manages its enforcement program so that all violations are associated 
with an enforcement action. All enforcement actions are ``violation 
notices'' because they are the vehicle through which a violator is 
notified that there is a violation. In practice, the term ``violation 
notice'' in 25 Pa. Code 86.63(a)(3) includes the following enforcement 
actions: Compliance Orders, Cessation Orders, Failure to Abate 
Cessation Orders, Permit Suspensions, and Bond Forfeitures.
    Pennsylvania also states that it manages violation and enforcement 
data using the eFACTS (Environment, Facility, Application, and 
Compliance Tracking System) database. The practice to include cessation 
orders along with the other enforcement actions is embedded in the 
report that is used to verify violation history data.
    Further, the regulation at 25 Pa. Code 86.63(a)(3) requires 
cessation orders to be reported because in practice the term 
``violation notice'' includes cessation orders. For these reasons, 
Pennsylvania is requesting that the required program amendment at 30 
CFR 938.16(bbb) be removed.

III. OSM's Findings

    For the reasons set forth below, we are approving Pennsylvania's 
request that we remove the required amendment codified at 30 CFR 
938.16(bbb). This required amendment was imposed because the Federal 
counterpart to 25 Pa. Code 86.63(a)(3), at 30 CFR 778.14(c), explicitly 
required, in 1992, that specific information be provided for both 
violation notices and cessation orders. Pennsylvania's regulations 
required this information for violation notices, but did not explicitly 
require the same information with respect to cessation orders.
    On December 19, 2000, OSM revised its regulations at 30 CFR 
778.14(c) to drop the terms ``cessation orders,'' ``owned or controlled 
by the applicant,'' and ``owns or controls the applicant.'' 
Nevertheless, the revised Federal regulation requires that the 
information be provided for ``violations'' which, by definition 
promulgated in the same rulemaking, include ``cessation orders.'' See 
30 CFR 701.5. Thus, in substance, the Federal reporting requirement did 
not change in 2000, Federal Register (65 FR 79582).
    Nevertheless, Pennsylvania has demonstrated that it interprets the 
term ``violation notice,'' which is used in 25 Pa. Code 86.63(a)(3), to 
include cessation orders. Therefore, with the understanding that a 
violation notice includes a cessation order, we find that 
Pennsylvania's regulation is no less effective than its Federal 
counterpart, and we hereby approve the request to remove the required 
amendment at 30 CFR 938.16(bbb).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in the June 21, 2010, 
Federal Register (75 FR 34960) (Administrative Record No. PA 844.20). 
No requests for public meetings were received. We received public 
comments on two occasions: (1) PennFuture (representing Citizens for 
Pennsylvania's Future) letter dated July 21, 2010 (Administrative 
Record No. PA 844.22); and (2) an email from a citizen sent on June 21, 
2010 (Administrative Record No. PA. 844.21).
    PennFuture Comments: PennFuture comments that OSM may remove the 
required amendment because it has deleted from 30 CFR 778.14(c) the 
specific reference to ``cessation order'' on which the subpart was 
based. However, PennFuture notes while the result Pennsylvania 
advocates is correct, it is so for a different reason than the one 
Pennsylvania provides.
    PennFuture contends that the argument Pennsylvania advances today--
namely that the term ``violation notice'' in Section 86.63(a)(3) 
includes cessation orders--was fully available to Pennsylvania in 1992, 
and Pennsylvania could have sought judicial review of subpart (bbb) on 
that basis pursuant to 30 U.S.C. 1276(a)(1). As a result, if nothing 
else had changed since December 30, 1992, Pennsylvania would be barred 
from seeking the removal of subpart (bbb) by the principle of 
administrative finality incorporated into Section 706(a)(1) of SMCRA, 
which requires that challenges to final rules on program amendments be 
filed within 60 days. Thus, without more than Pennsylvania offers, OSM 
could not validly grant the relief Pennsylvania seeks.
    OSM Response: We disagree with PennFuture that the December 19, 
2000,

[[Page 25876]]

revision to 30 CFR 778.14(c) provides the basis for removal of the 
required amendment, since the revised Federal regulation continues to 
require the relevant information to be provided for all violations, 
which, by definition, include cessation orders. Rather, our decision to 
approve Pennsylvania's request to remove the required amendment is 
based on our determination that Pennsylvania's regulations are no less 
effective than current Federal regulations. That determination, set 
forth above in our findings, stems from an explanation that 
Pennsylvania submitted on March 4, 2010 (Administrative Record No. PA 
844.14).
    We also disagree that Pennsylvania is time-barred by section 
526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), from submitting this 
explanation. Pennsylvania's interpretation is not a judicial challenge 
to our 1992 decision, but instead it is an attempt to explain how its 
program complies with a counterpart Federal regulation. Clarifications 
of this sort are authorized in the Federal regulations, at 30 CFR 
732.17(a), which acknowledge that States may alter their programs on 
their own initiative. If States may propose program alterations, it 
follows logically that they may propose altered interpretations of 
their programs for OSM to consider, subject to public notice and 
opportunity for comment. The SMCRA regulatory scheme confers this 
privilege upon State regulatory authorities, but not upon private 
individuals or other ``persons.'' Instead, the remedy available to 
private entities is a Section 526(a)(1) challenge to an OSM program 
amendment decision. Whether this statutory remedy is even available to 
State regulatory authorities is uncertain; nevertheless, the applicable 
regulations are sufficiently flexible to allow States to request that 
OSM re-evaluate a previous decision on a program amendment.
    Citizen Comment: The commenter expresses concern about 
Pennsylvania's laxity of enforcement on natural gas extraction and 
believes a fee should be added to every lease where drilling is taking 
place. The commenter also states the residents of Pennsylvania are at 
risk from their water turning into contamination.
    OSM Response: We cannot respond to the comment since natural gas 
extraction is not germane to Pennsylvania's request, or to our finding 
with respect to the request.

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 844.14). We received 
responses from two agencies: (1) The Mine Safety and Health 
Administration, District 1, in a letter dated March 31, 2010, 
(Administrative Record No. PA 844.18) responded that it does not have 
any comments or concerns with this request; and (2) the Fish and 
Wildlife Service, in an email sent March 30, 2010, (Administrative 
Record No. 844.17) responded that it has no 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.

V. OSM's Decision

    Based on the above findings, we are removing the required amendment 
at 30 CFR 938.16(bbb) in response to Pennsylvania's request sent to us 
on March 4, 2010.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the fact that the rule is administrative in nature. It revises 
the CFR, but the revision does not have a substantive effect on the 
State's regulatory program.

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, and 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

[[Page 25877]]

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 (NEPA) (42 U.S.C. 
4332(2)(C)).

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 effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This determination is based on the fact that the rule is administrative 
in nature. It revises the CFR, but the revision does not have a 
substantive effect on the State's regulatory program.

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. The rule is 
administrative in nature and it: (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 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 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: July 25, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.

    Editorial Note:  This document was received at the Office of the 
Federal Register on Friday, April 27, 2012.

    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.


Sec.  938.16  [Amended]

0
2. Section 938.16 is amended by removing and reserving paragraph (bbb).

[FR Doc. 2012-10563 Filed 5-1-12; 8:45 am]
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