[Federal Register Volume 82, Number 130 (Monday, July 10, 2017)]
[Rules and Regulations]
[Pages 31715-31717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14376]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 130 / Monday, July 10, 2017 / Rules 
and Regulations  

[[Page 31715]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-164-FOR; Docket No. OSM-2016-0013; S1D1S SS08011000 
SX064A000 178S180110; S2D2S SS08011000 SX064A000 17XS501520]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Pennsylvania regulatory 
program (Pennsylvania program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). This amendment revises the 
Pennsylvania program to further define the implementation process for 
the reclamation of alternative bonding system (ABS) ``Legacy Sites,'' 
and to clearly identify the current list of Legacy Sites, as well as 
sites that may qualify in the future as Legacy Sites.

DATES: Effective August 9, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Chief, Pittsburgh Field 
Division, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 937-2827, Email: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
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 additional 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.
    By letter dated August 1, 2008 (Administrative Record Number PA 
802.43), Pennsylvania sent us a proposed program amendment that was 
intended to satisfy a required amendment that was imposed by OSMRE in a 
final rule published in the Federal Register on May 31, 1991, (56 FR 
24687), and codified in the Federal regulations at 30 CFR 938.16(h). 
This proposed program amendment, hereinafter referred to as the ``ABS 
Program Amendment,'' was also intended to satisfy requirements of an 
October 1, 1991, letter sent to the state pursuant to the Federal 
regulations at 30 CFR 732.17 (the ``732 letter''). Among other things, 
the August 1, 2008, amendment proposed significant changes to the 
State's revenue raising mechanism for the treatment of pollutional 
discharges at ABS Legacy Sites. The term ``Legacy Sites'' is defined in 
Section III, below.
    On August 10, 2010, we published a Federal Register notice 
announcing our partial approval of the ABS program amendment. 75 FR 
48526. The only issue preventing a complete approval was that 
Pennsylvania had not demonstrated that there was sufficient bond money 
to cover the cost of land reclamation on two known active surface coal 
mining sites. On October 1, 2010, Pennsylvania submitted an amendment 
containing the necessary demonstration of sufficient reclamation funds. 
OSMRE approved this amendment on September 17, 2015, (see 80 FR 55746), 
and removed the aforementioned required amendment at 30 CFR 938.16(h).

II. Submission of the Amendment

    By letter dated November 14, 2016 (Administrative Record No. PA 
897.00), Pennsylvania sent us an amendment to its program under SMCRA 
(30 U.S.C. 1201 et seq.).
    We announced receipt of the proposed amendment in the March 10, 
2017, Federal Register (82 FR 13268). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. OSMRE received 
four public comments. The public comment period ended on April, 10, 
2017. No public hearing or meeting was requested.

III. OSMRE's Findings

    Pennsylvania submitted this program amendment to further define how 
the Pennsylvania Department of Environmental Protection 
(``Department'') will implement its obligation under the approved ABS 
Program Amendment consistent with OSMRE oversight. As defined in 25 Pa. 
Code Sec.  86.1, ``ABS Legacy Sites'' are ``[m]ine sites, permitted 
under the Primacy Alternate Bonding System [ABS], that have a 
postmining pollutional discharge where the operator has defaulted on 
its obligation to adequately treat the discharge and, either the bond 
posted for the site is insufficient to cover the cost of treating the 
discharge, or a trust to cover the costs of treating the discharge was 
not fully funded and is insufficient to cover the cost of treating the 
discharge.'' The following are the issues Pennsylvania addressed in its 
submittal.
    A. The amendment contains a current list of ABS Legacy Sites.
    B. The amendment provides a process for moving sites from the list 
of potential ABS Legacy Sites to the list of ABS Legacy Sites. Sites 
may become ABS Legacy Sites if a bond forfeiture occurs, or under the 
circumstances set forth in paragraph C, below.
    C. The amendment includes the mechanisms by which a site can be 
added to the list of ABS Legacy Sites if bond release was improperly 
granted, or if the bond or trust fund is subsequently determined to be 
inadequate for certain specified reasons.

[[Page 31716]]

    D. The amendment provides the criteria that must be met in order 
for a mine to be removed from the list of ABS Legacy Sites. Removal 
from the list may occur if there is no longer a post-mining discharge 
requiring treatment, if the amount of bond posted becomes sufficient to 
guarantee adequate treatment of discharges, or if a fully funded trust 
fund is established that will guarantee discharge treatment in 
perpetuity.
    E. The amendment requires the Department to request concurrence 
from OSMRE, consistent with its oversight authority, when sites are 
being added to or removed from the list of ABS Legacy Sites or from the 
list of potential ABS Legacy Sites. This concurrence will be requested 
in writing through a letter or email message to the Pittsburgh Field 
Division, Harrisburg Office. The concurrence request will include a 
justification of the action. After the concurrence is received, the 
Department will publish the notice in the Pennsylvania Bulletin.
    F. The amendment provides schedules for completion of land 
reclamation at ABS bond forfeiture sites, and for installation and 
completion of ABS Legacy Site postmining discharge treatment systems.
    G. The amendment requires the State to submit annual reports to 
OSMRE on the progress toward installation and completion of ABS Legacy 
Site postmining treatment systems.
    H. The amendment states that sites covered by ``mixed site 
trusts,'' (used for discharges from multiple mines that include both 
ABS and non-ABS sites), ``partially funded trusts,'' and ``Department-
directed trusts'' will continue to be considered ABS Legacy Sites.
    We have determined that the amendment contains no provisions that 
are inconsistent with SMCRA and its implementing regulations, and are 
therefore approving it. However, our approval of the provision allowing 
a site to be added to the list of ABS Legacy Sites if bond release was 
improperly granted is with the understanding that, prior to 
reclassifying such a site as an ABS Legacy Site, the Department must 
take action, as appropriate, to require the operator to reclaim the 
site. If the permittee no longer exists or is insolvent, and is 
therefore unable to complete reclamation, the Department must ensure 
that any permittees, and the entities and operators that are owned and 
controlled by them, are linked to any unabated violations and/or bond 
forfeitures resulting from the site as appropriate.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments and requests for public hearings or 
meetings regarding the amendment. We received responses from PennFUTURE 
and from three individuals: Nolan Murphy-Genao, Sue McLendon, and 
Stephen Mee. The following summarizes the comments and our responses to 
them.
    PennFUTURE: PennFUTURE agreed with approving the proposed 
amendment, stating that it has no course-reversing effect on the 
approved State program. Instead, PennFUTURE said that it advances the 
objectives of the previously approved elements of the Pennsylvania 
Regulatory Program and enhances them by adding clarity, certainty and 
transparency to the approved mechanisms.
    OSMRE's Response: We agree with the commenter, and are approving 
the amendment.
    Other Commenters: The three remaining commenters provided comments 
related to the regulation and enforcement of surface coal mining in 
general and did not provide specific substantive comments on the 
amendment proposed.
    OSMRE's Response: The comments provided are not germane to the 
question of approval or disapproval of this amendment.

Federal Agency Comments

    On November 16, 2016 (Administrative Record PA 897.01), under 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. We did not receive 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. However, on November 16, 2016, we requested 
comments from the EPA on the amendment. The EPA responded in a letter 
dated January 6, 2017, stating, ``The EPA has reviewed the proposed 
amendment and will not be providing comments.'' (Administrative Record 
PA 897.02).

V. OSMRE's Decision

    Based on the above finding, we are approving Pennsylvania's 
amendment that was submitted on November 14, 2016.
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 938, that codify decisions concerning the 
Pennsylvania program. Section 503(a) of SMCRA requires that the State's 
program demonstrate that the State has the capability of carrying out 
the provisions of the Act and meeting its purposes. SMCRA requires 
consistency of State and Federal standards.

VI. 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 regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt 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 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 
OSMRE. 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

[[Page 31717]]

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 
Governments

    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 regulation involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    Executive Order 13211 of May 18, 2001, 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

    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)).

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 submittal, which is the subject of this rule, is based upon 
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. 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, Federal, State, or local government agencies, or geographic 
regions; 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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 31, 2017.
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 by adding an entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                        Date of publication of
 Original amendment submission dates          final rule                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
November 14, 2016....................  July 10, 2017..........  Pennsylvania's commitment to the completion of
                                                                 treatment systems for pollutional discharges on
                                                                 ABS Legacy Sites.
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[FR Doc. 2017-14376 Filed 7-7-17; 8:45 am]
BILLING CODE 4310-05-P