[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Rules and Regulations]
[Pages 55210-55214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22011]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-162-FOR; Docket ID: OSM-2012-0022; 
S1D1SSS08011000SX066A00067F134S180110; 
S2D2SSS08011000SX066A00033F13XS501520]


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 announcing the approval of an amendment to the 
Pennsylvania regulatory program (the ``Pennsylvania program'') under 
the Surface Mining Control and Reclamation Act of 1977 (``SMCRA'' or 
the ``Act''). Pennsylvania proposed to revise its program at 25 Pa. 
Code 86.1, 86.3, and 86.17, to reflect the addition of new definitions 
and revisions to Pennsylvania's regulations on the use of the Coal 
Refuse Disposal Control Fund (``CRDCF'') and permit and reclamation 
fees. OSM is approving the proposed amendment which was submitted by 
Pennsylvania on December 19, 2012.

DATES: Effective Date: September 10, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Chief, Pittsburgh Field 
Division, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, 3rd Floor, Pittsburgh, Pennsylvania 15220; Telephone: 
(412) 937-2827; 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 SMCRA 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 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 this Act . . .; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' 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, effective July 30, 1982. You can 
find background information on the Pennsylvania program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval of the Pennsylvania program in the July 30, 1982, Federal 
Register (47 FR 33050). You can also find later actions concerning the 
Pennsylvania program and program amendments at 30 CFR 938.11, 938.12, 
938.13, 938.15, and 938.16.

II. Submission of the Proposed Amendment

    By letter dated December 19, 2012, (Administrative Record Number, 
PA 895.00), Pennsylvania sent OSM a request to approve the amendment of 
regulations found at Chapter 86 relating to surface and underground 
coal mining. The submission establishes a revised schedule of fees for 
coal mining activity permit applications. Specifically, Pennsylvania is 
requesting approval of regulations found at 25 Pa. Code Chapter 86, 
sections 1, 3, and 17. These changes were made at Pennsylvania's 
initiative.
    We announced receipt of the proposed amendment in the February 26, 
2013, Federal Register (78 FR 13002). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting.
    We did not hold a public hearing or meeting because one was not 
requested. The public comment period ended on March 28, 2013. We 
received one comment from the United States Environmental Protection 
Agency (Administrative Record Number, PA 895.04). This comment was in 
response to OSM's December 26, 2012, letter (Administrative Record 
Number, PA 895.01) soliciting comment. No comments were received from 
the public.

III. OSM's Findings

    30 CFR 732.17(h)(10) requires that State program amendments meet 
the criteria for approval of State programs set forth in 30 CFR 732.15, 
including that the State's laws and regulations are in accordance with 
the provisions of the Act and consistent with the requirements of 30 
CFR Part 700. In 30 CFR 730.5, OSM defines ``consistent with'' and ``in 
accordance with'' to mean: (a) With regard to SMCRA, the State laws and 
regulations are no less stringent than, meet the minimum requirements 
of, and include all applicable provisions of the Act; and (b) with 
regard to the Federal regulations, the State laws and regulations are 
no less effective than the Federal regulations in meeting the 
requirements of SMCRA.
    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, as described below. Any revisions that we do 
not specifically discuss concern non-substantive wording or editorial 
changes.

Minor Revisions to Pennsylvania's Regulations

Bifurcation of 25 Pa. Code 86.3 for Clarity Purposes
    Pennsylvania proposed minor wording, editorial, and recodification 
changes to the following previously-approved regulation at 25 Pa. Code 
86.3 (a). This section is amended to add subsection (b), which 
necessitates the lettering of the existing paragraph as subsection (a). 
Although Pennsylvania has always collected permit application fees, the 
bifurcation of this section, resulting in the addition of subsection 
(b) provides clarity regarding the use of the money collected from 
permit application fees that are deposited in the Coal Refuse Disposal 
Control Fund (``CRDCF''); a function within Pennsylvania's purview, as 
the regulatory authority. Specifically, subsection (b), will 
incorporate the definition of ``Permit application fee,'' discussed at 
length herein, and will read:

    Permit application fees required under this chapter for permit 
applications submitted under the Coal Refuse Disposal Control Act

[[Page 55211]]

will be used by the Department to cover its costs to review 
applications.

OSM finds that this provision is consistent with regulations issued 
pursuant to 30 CFR 777.17. Accordingly, we are approving this portion 
of the amendment.

Revisions to Pennsylvania's Regulations That Are No Less Effective Than 
the Corresponding Provisions of the Federal Regulations and No Less 
Stringent Than SMCRA

Definition of ``Permit application fee'' at 25 Pa. Code 86.1
    Pennsylvania proposes the addition of a new term; the definition of 
``Permit application fee.'' This term will be found at 25 Pa. Code 
86.1. Pennsylvania has always assessed a fee for permits consistent 
with Section 4(a) of the Pennsylvania Surface Mining Conservation and 
Reclamation Act and in a manner no less stringent than SMCRA, but did 
not define this term. In addition to the term, ``Permit application 
fee'' being introduced in the ``Definitions'' section, it will be 
incorporated in Sec.  86.17, as a sub-section heading and shall be 
defined as, ``[a] nonrefundable filing fee due at the time of 
submission of an application. The permit application fee is required 
for an application to be considered complete.'' While there are no 
direct Federal counterpart provisions, section 507(a) of SMCRA 
specifically authorizes the implementation of a fee for permit 
applications, providing that a permit application ``shall be 
accompanied by a fee as determined by the regulatory authority, [which] 
may be less than but shall not exceed the actual or anticipated cost of 
reviewing, administering, and enforcing such permit . . .'' and that 
``[t]he regulatory authority may develop procedures so as to enable the 
cost of the fee to be paid over the term of the permit.'' Therefore, we 
find Pennsylvania's introduction of this definition to be no less 
stringent than SMCRA. Accordingly, we are approving this portion of the 
amendment.
Pennsylvania's Revision to 25 Pa. Code 86.17, Permit and Reclamation 
Fees, Creating an Increase in Permit Fees
    Pennsylvania has resolved to increase the permit application fee 
schedule for coal mining permit activity applications in order to pay 
the costs the Department of Environmental Protection (``PA DEP'') 
incurs in reviewing permit applications. Prior to this submission, a 
permit application for coal mining activities or a coal preparation 
plant was required to be submitted with an application fee of $250. 
Additionally, any permit application fee for coal refuse disposal 
activities required a fee of $500, plus an additional $10 per acre fee 
for acreage in excess of 50 acres. This submission increases the fees 
and creates new categories of permits with differing fees. Surface 
mining and coal refuse disposal permits will be assessed a fee of 
$3,250; coal refuse reprocessing permits will be assessed a fee of 
$1,900; coal preparation plants, anthracite underground mining, and 
incidental extraction permits will be assessed a fee of $1,650; 
bituminous underground mining permits will be assessed a fee of $5,750; 
and post-mining activity permits will be assessed a fee of $300. As 
discussed above, SMCRA gives the regulatory authority discretion in 
selecting the fee to be imposed, stating that the fee ``may be less 
than but shall not exceed the actual or anticipated cost of reviewing, 
administering, and enforcing such permit. . . .'' In establishing the 
new fees, Pennsylvania calculated the amounts using a workload analysis 
system. This system assigns a specific number of hours to each task to 
be completed, such as processing a permit application based on 
historical data recorded by staff. Using this historical data, the new 
fees were determined.
    Under subsection (b)(2) of the amendment, a new fee for major 
permit revisions is imposed. This fee is either $300 or $1,250, 
depending upon the permit type.
    Subsection (b)(3) introduces a new fee of $250 for permit 
transfers. The renewal fee, as detailed in subsection (b)(4), continues 
to be assessed under the former rate of $250. Additionally, new fees 
for auger safety and bond liability revisions will be assessed in the 
amount of $200 and $100, respectively.
    Subsection (c) now describes how the collected fees will be 
allocated. Permit application fees collected for surface coal mine 
facilities, coal refuse reprocessing facilities, and coal mining 
activity facilities will be deposited in the Surface Mining 
Conservation and Reclamation Fund. Permit application fees for 
bituminous underground mines will be deposited in the Bituminous Mine 
Subsidence and Land Reclamation Fund. The fees collected for coal 
refuse disposal facilities are to be deposited in the CRDCF.
    The amendment also adds a new component at subsection (d). This 
subsection requires the PA DEP to review the adequacy of the permit 
application fees at least once every three years. The results of this 
review must be submitted in writing to Pennsylvania's Environmental 
Quality Board. Specifically, the proposed report will identify and 
reconcile any disparity between the amount of income generated by the 
fees and the cost to administer these programs as well as recommend a 
fee increase, as necessary.
    Subsection (e) of the current regulation will remain unaltered.
    Pennsylvania has established that it has discretion in defining the 
fees for permit applications provided Pennsylvania conforms to section 
507 of SMCRA in performing this analysis. As demonstrated, 
Pennsylvania, using the recommendations of the PA DEP and the Mining 
and Reclamation Advisory Board, reviewed historical data to determine 
the costs of reviewing, processing, and performing these tasks. We find 
the proposed Pennsylvania amendment to be no less stringent than the 
applicable SMCRA provisions and no less effective than the regulations 
promulgated thereunder. Therefore, we are approving this portion of the 
amendment as proposed by Pennsylvania.
    Pennsylvania also proposes the addition of the term, ``Major Permit 
Revisions,'' to be added to the Definitions section found at 25 Pa. 
Code 86.1. This term is also used as a section header, found at 25 Pa. 
Code 86.17(b)(2). OSM considered the use of this term, taking into 
consideration EPA's reservations regarding the introduction of this 
term into the Pennsylvania program. EPA's concerns are discussed at 
length in the ``Federal Agency Comments'' section below.
    There is no direct, definitional Federal counterpart within SMCRA 
for the proposed term, ``Major Permit Revisions''; however, OSM finds 
sufficient support for incorporating this term into the Pennsylvania 
program and has found it to be no less stringent than SMCRA and no less 
effective than the regulations promulgated thereunder. This, too, is 
discussed in the ``Federal Agency Comments'' section below.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments (Administrative Record Number PA 
895.03) on the amendment when advertising the existence of the proposed 
amendment in the Federal Register on February 26, 2013. We did not 
receive any public comments on the proposed amendment.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from

[[Page 55212]]

various Federal agencies, including the U.S. Fish and Wildlife Service, 
the United States Department of Agriculture, and the Mine Safety and 
Health Administration, with an actual or potential interest in the 
Pennsylvania program (Administrative Record Number PA 895.01). No 
comments were received.

Environmental Protection Agency (``EPA'') Comments

    On December 26, 2012, (Administrative Record Number PA 895.01), we 
asked for comment from the EPA. Under 30 CFR 732.17(h)(11)(i) and (ii), 
we are required to obtain a written concurrence from the EPA for those 
provisions of the program amendment that relate to air or water quality 
standards promulgated 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.). We 
did not seek concurrence from the EPA for this amendment. The purpose 
of the amendment is to alter pre-existing guidelines for permit fees; 
therefore, this amendment does not require EPA concurrence as it does 
not relate to air or water quality standards as outlined in the 
regulations.
    On February 25, 2013, the EPA, as requested by OSM, provided 
comments to the proposed amendments, expressing concern that the 
proposed amendment had the potential for impacting water quality 
standards. Specifically, the EPA expressed concern that the addition of 
the term ``Major Permit Revisions'' to 25 Pa. Code 86.1, Definitions, 
and included as a section header at Sec.  86.17, as detailed in the 
proposed amendment, may undermine the mandatory process of providing 
public notice and opportunity to comment on any modification to a 
National Pollutant Discharge Elimination System (``NPDES'') permit 
issued under the Federal Clean Water Act (``CWA''). As noted by the 
EPA, this mandatory process is outlined in 40 CFR Part 124 and 40 CFR 
123.62, pertaining to decision making and State program amendments of 
the EPA regulations.
    The EPA recommended that the definition of ``Major Permit 
Revisions'' at Sec.  86.1, be clarified to specifically state that the 
Federal regulatory requirements for NPDES permit modifications will 
apply and may require, among other things, public notice and 
opportunity to comment.
    We gave deference to the EPA's comment, as the agency promulgating 
the regulations at 40 CFR Part 124 and 40 CFR 123.62. However, OSM 
notes that, consistent with section 702 of SMCRA, nothing in the 
submission shall be construed as superseding, amending, modifying, or 
repealing the requirements of the Federal CWA. Upon review of the 
Pennsylvania program, we found direct support for approving the 
addition of the term ``Major Permit Revisions'' and its use as a 
header.
    Specifically, the approved Pennsylvania program incorporates by 
reference provisions of Chapter 92a of the Pennsylvania regulations 
that govern the implementation of the NPDES Permitting, Monitoring, and 
Compliance. For each of the permit applications or major permit 
revisions referenced in the proposed amendment, there are applicable 
Pennsylvania regulations that incorporate by reference the requirements 
of the regulations promulgated pursuant to the CWA and the Pennsylvania 
counterpart, the Clean Streams Law, 35 P.S. 691.5. For example, 
relative to surface coal mining permits, 25 Pa. Code 87.102(f), 
Hydrologic balance: effluent standards, specifically reads:

    In addition to the requirements of subsections (a)-(e), the 
discharge of water from areas disturbed by mining activities shall 
comply with this title, including Chapters 91, 92, 93, 95, 97 
(reserved) and 102.

The provisions in Pennsylvania's Chapter 92 deal specifically with 
Public Participation. This portion of the Pennsylvania environmental 
protection regulation, found at 25 Pa. Code 92a.82, is incorporated by 
reference into the Pennsylvania program. Therefore, the Pennsylvania 
program specifically requires that when dealing with the discharge of 
water from areas disturbed by mining activities, ``a public notice of 
every new draft individual permit, or major amendment to an individual 
permit, will be published in the Pennsylvania Bulletin.'' (25 Pa. Code 
92a.82(b)) With respect to categorizing revisions and modifications as 
``minor'' or ``major,'' OSM notes that the Pennsylvania definition of 
``minor amendment,'' found at 25 Pa. Code 92a.2, directly mirrors, with 
a few insignificant exceptions, the definition of ``Minor 
modifications'' as promulgated by the EPA at 40 CFR 122.63. The 
Pennsylvania regulations also provide for a standard 30-day public 
comment period following publication. (25 Pa. Code 92a.82)
    In addition to the provision of the Pennsylvania program dealing 
with surface coal mining permits, there are similar provisions found 
at: 25 Pa. Code 89.52(h), applicable to underground coal mine permits 
and coal preparation facilities permits; 25 Pa. Code 90.102(f), 
applicable to coal refuse disposal permits, and 25 Pa. Code 88.92(f) 
applicable to anthracite coal mine permits. The presence of these 
public notice requirements dispense with the concern raised by the EPA 
that modifications to NPDES permits may not receive required public 
notice and comment periods.
    Therefore, while taking the EPA's comment into consideration, we 
conclude that this aspect of the amendment may be approved as it is no 
less stringent than SMCRA and no less effective than the implementing 
regulations.

State Historic Preservation Officer (``SHPO'') and the Advisory Council 
on Historic Preservation (``ACHP'')

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On December 26, 2012, we requested comments on 
Pennsylvania's amendment (Administrative Record PA 895.01), but neither 
responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment proposed by 
Pennsylvania and sent to OSM on December 19, 2012.
    We approve, as discussed in finding number 1, 25 Pa. Code 86.3, 
concerning the CRDCF fund; finding number 2, 25 Pa. Code 86.1, 
concerning the definition of permit application fee; and finding number 
3, 25 Pa. Code 86.17, concerning the change in amount and addition of 
fees.
    Moreover, as stated herein, OSM, while considering the comments 
received by the EPA, finds that the introduction of the definition, 
``Major Permit Revisions'' found at 25 Pa. Code 86.1, of the 
Pennsylvania amendment and the reference thereto at 25 Pa. Code 
86.17(2), is no less stringent than SMCRA and is not construed as 
superseding, amending, modifying, or repealing the Federal regulatory 
requirements for NPDES permit modifications. Specifically, the 
Pennsylvania program provides for public notice and opportunity to 
comment for ``every . . . major amendment to an individual permit.'' 
(25 Pa. Code 92a.82(b))

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the Federal regulations. Section 
507(a) of

[[Page 55213]]

SMCRA gives the regulatory authority discretion in selecting the fee to 
be imposed. Other changes implemented through this final rule notice 
are administrative in nature and have no takings implications.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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). However, these standards are not applicable to 
the actual language of State regulatory programs and program amendments 
because each plan 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 plans and plan 
amendments submitted by the States must be based solely on a 
determination of whether the submittal is consistent with SMCRA and its 
implementing 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 because it does not 
have substantial direct effects on the states, on the relationship 
between the Federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
The rule merely approves a program amendment submitted by the State of 
Pennsylvania at its own initiative.

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 pertains to the 
Pennsylvania 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 
requiring agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866 
(Regulatory Planning and Review), and (2) likely to have 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

    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 (42 U.S.C. 4332(2)(C)). 
It is further documented in the DOI Departmental Manual 516 DM 13.5, 
that agency decisions on approval of State regulatory programs do not 
constitute major Federal actions.

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.). 
The State submittal, which is the subject of this rule, is based upon 
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. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied upon data and assumptions for 
the 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 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: May 13, 2013.
Thomas D. Shope,
Regional Director, Appalachian Region.
    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 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

[[Page 55214]]



------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
December 19, 2012.............  September 10,      Addition of
                                 2013.              definitions to 25
                                                    Pa. Code 86.1,
                                                    clarification of
                                                    86.3, and increase
                                                    of fees at 86.17.
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[FR Doc. 2013-22011 Filed 9-9-13; 8:45 am]
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