[Federal Register Volume 65, Number 214 (Friday, November 3, 2000)]
[Rules and Regulations]
[Pages 66170-66174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28268]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-126-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Pennsylvania regulatory 
program (Pennsylvania program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended. 
The amendment revises certain portions of 25 Pennsylvania Code Chapter 
86, Surface and Underground Mining: General, pertaining to ownership 
and control, bonding, civil penalties and areas unsuitable for mining. 
The amendments are intended to revise the Pennsylvania program to be 
consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 3, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Office of Surface 
Mining Reclamation and Enforcement, Harrisburg Field Office, Third 
Floor, Suite 3C, Harrisburg Transportation Center (Amtrack), 415 Market 
Street, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Pennsylvania Program

    On July 30, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. Background on the Pennsylvania 
program, including the Secretary's findings and the disposition of 
comments can be found in the July 30, 1982 Federal Register (47 FR 
33079). Subsequent actions concerning the regulatory program amendments 
are identified at 30 CFR 938.11, 938.15 and 938.16.

II. Submission of the Amendment

    By letter dated November 2, 1999 (Administrative Record No. PA-
845.02),

[[Page 66171]]

the Pennsylvania Department of Environmental Protection (PADEP) 
submitted an amendment to its approved regulatory program pertaining to 
ownership and control, bonding, civil penalties and areas unsuitable 
for mining pursuant to the Federal regulations at 30 CFR 732.17(b). 
Pennsylvania did so as a result of its Regulatory Basics Initiative 
(RBI) intended to revise regulations considered to be unclear, 
unnecessary or more stringent than the corresponding Federal 
regulation. The proposed rulemaking was published in the November 29, 
1999 Federal Register (64 FR 66595). The public comment period closed 
on December 29, 1999. No one requested an opportunity to speak at a 
public hearing, so no hearing was held.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
amendments to the Pennsylvania permanent regulatory program. Revisions 
not specifically discussed below concern paragraph notations to reflect 
organizational changes resulting from this amendment.

Section 86.1.  Definitions

    1. Owned or controlled or owns or controls. PADEP modifies the 
title to the definition by substituting the word ``and'' for the second 
``or'' so it now reads ``Owned or controlled and owns or controls.'' 
This change renders the title substantively identical to, and therefore 
no less effective than, the title to the Federal counterpart definition 
at 30 CFR 773.5. PADEP also modifies subparagraph (iii)(E) by deleting 
the specified percentages (10-50%) of instruments of ownership of a 
corporate entity necessary to establish a presumption of ownership or 
control, and by substituting a reference to percentages in the 
corresponding Federal regulations at 30 CFR 773.5(b)(5). This provision 
of the Federal regulations was vacated by the United States Court of 
Appeals for the District of Columbia Circuit in National Mining Ass'n. 
v. United States Dep't. of the Interior, 177 F.3d 1, 7 (D.C. Cir. 
1999). However, while the vacated Federal regulation cannot be 
implemented in a Federal program, the text of the regulation has not 
been deleted from the Code of Federal Regulations.
    Moreover, pursuant to section 505(b) of SMCRA, 30 U.S.C. 1255(b), 
any state law or regulation ``which provides for more stringent land 
use and environmental controls and regulations of surface coal mining 
operations than do the provisions' of SMCRA ``or any regulations issued 
pursuant thereto shall not be construed to be inconsistent'' with 
SMCRA. As such, state programs may still choose to employ this 
criterion in defining ownership and control. Therefore, we are 
approving subparagraph (iii)(E) because it provides a basis for 
establishing a rebuttable presumption of ownership and control that is 
in addition to those contained in the Federal regulations.
    2. Related party. PADEP is excluding from this definition persons 
who are excluded as owners or controllers based on a percentage of 
ownership under the definition of ``owned or controlled and owns or 
controls.'' The term ``related party'' does not exist in the Federal 
regulations, but it has previously been approved by OSM, and remains 
part of Pennsylvania's approved program. We are approving this change 
to the definition because it makes it clear that the term ``related 
party'' is consistent with the term ``owned or controlled and owns or 
controls,'' and because it does not render the Pennsylvania program 
inconsistent with SMCRA or the Federal regulations.
    3. Willful violation. PADEP is adding this definition which states 
that a willful violation is an act or omission which violates the acts, 
this chapter, Chapter 87, 88, 89, or 90, or a permit condition required 
by them, committed by a person who intends the result which actually 
occurs.
    The Director finds that this definition is substantively identical 
to, and therefore no less effective than the definition found in the 
Federal rules at 30 CFR 701.5.

Section 86.124(a)(6)  Areas Unsuitable for Mining

    PADEP is removing current language and substituting the following 
statement:

    The Department may determine not to process any petition for a 
designation under Sec. 86.122 (relating to criteria for designating 
lands as unsuitable) insofar as it pertains to an area for which an 
administratively complete surface mining operation permit 
application has been filed and the first newspaper notice has been 
published. The Department will provide written notice to the 
petitioner with a statement of its findings.

    The Director finds that the revised language is substantively 
identical to and therefore no less effective than the corresponding 
portion of the Federal regulation at 30 CFR 764.15(a)(6).

Section 86.152(d)  Adjustments (Bond Amount)

    PADEP is adding section (d) to require notification of proposed 
adjustments to bond amounts to the permittee, the surety and any person 
with a property interest in collateral who has requested such 
notification. PADEP also adds language providing the permittee an 
opportunity for informal conference on the adjustment. The Director 
finds that the changes described above are substantively identical to 
and therefore no less effective than the Federal Regulations at 30 CFR 
800.15(b).

Section 86.156  Form of the Bond

    PADEP is adding, in new subsection (3), a self bond to the type of 
bonds the Department may accept. Existing subsection (3) is re-numbered 
as (4) and modified to state that the Department will accept ``[a] 
combination of bonding instruments as provided in Sec. 86.160 (relating 
to combination of bonding instruments) for coal surface mining 
activities.'' Existing subsections (4) and (5) are re-numbered as (5) 
and (6), respectively. The Director finds that the changes described 
above are substantively identical to and therefore no less effective 
than the Federal Regulations at 30 CFR 800.12.

Section 86.160  Combination of Bonding Instruments

    PADEP is changing the title of this section from ``Surety/
collateral combination bond'' to ``Combination of Bonding 
Instruments,'' and is further modifying the section to include self 
bonds as part of the combination of bonds that may be accepted. The 
Director finds that the changes described above are substantively 
identical to and therefore no less effective than the Federal 
Regulations at 30 CFR 800.12(d).

Section 86.171  Procedures for Seeking Release of Bond

    PADEP is modifying subsection (d) of this section, which currently 
requires the Department to inspect a site that has applied for bond 
release within 30 days of receipt of the complete application, or as 
soon thereafter as possible, to require inspection within 30 days of 
receipt of the completed application for bond release ``or as soon 
thereafter as weather conditions permit.'' The Director finds that the 
changes described above are substantively identical to and therefore no 
less effective than corresponding language in the Federal Regulations 
at 30 CFR 800.40(b).

[[Page 66172]]

Section 86.182  Procedures

    PADEP is adding a new subsection (a) which requires the Department 
to notify the permittee and surety of its intent to forfeit the bond. 
Existing subsections regarding bond forfeiture currently lettered as 
(a) through (g) are re-lettered as (b) through (h) without 
modification. The Director finds that the changes described above are 
substantively identical to and therefore no less effective than the 
Federal Regulations at 30 CFR 800.50(a)(1).

Section 86.193  Assessment of Penalty

    PADEP is increasing the threshold for assessment of a civil penalty 
from $1000 to $1100 in subsections (b) and (c). PADEP also eliminates 
mandatory penalty amounts for violations of conducting surface mining 
activities off the permitted area by deleting subsections (d) through 
(g). The deleted provisions in subsections (d) through (g) have no 
Federal counterparts. The Department is retaining the requirement, in 
subsection 86.193(a), that it assess a civil penalty for each violation 
included as a basis for a cessation order. The Director notes that the 
Pennsylvania provision, as amended, imposes a lower threshold for 
mandatory assessment of a civil penalty ($1,100) than the threshold 
($1,210) prescribed in the Federal regulations at 30 CFR 845.12(b). 
Otherwise, the amendments render the Pennsylvania provision 
substantively identical to its Federal counterparts. Therefore, the 
Director finds that the changes described above are consistent with the 
civil penalty provisions in the Federal Regulations at 30 CFR 845.12.

Section 86.194  System for Assessment of Penalties

    PADEP is adding language in subsection (b)(1)(vi) allowing an 
additional civil penalty amount up to the statutory limit to be 
assessed in extraordinary circumstances.
    PADEP also specifies $3,000 as the upper limit to be assessed based 
on seriousness in subsection (b)(1).
    PADEP also modifies subsection (b)(2), ``Culpability,'' by lowering 
the maximum limit from $1500 to $1200. Also, the minimum amount for 
violations of willful or reckless conduct was lowered from $2,000 to 
$260.
    PADEP is also changing the criteria for credit to be given for 
speed of compliance in subsection (b)(3).
    PADEP deletes the phrase ``without limitation'' in subsection 
(b)(4), pertaining to penalties for costs expended by the Commonwealth 
as a result of the violation. The presumed effect of this deletion is 
that costs are now limited to those listed in subdivisions (i) through 
(iv) of subsection (b)(4).
    PADEP also reduces the review period for the history of previous 
violations from two years to one in subsection (b)(6).
    PADEP is also adding new subsection (f) entitled ``Revision of 
civil penalty.'' Subsection (1) is added and explains that the 
Department may revise a civil penalty calculated in accordance with 
dollar limits included in subsection (b) and that the basis for 
revision would be fully explained and documented. New subsection (2) is 
added to explain that if the Department revises the civil penalty, the 
Department will use the general criteria in subsection (b) and will 
give a written explanation of the basis for the revision to the person 
to whom the order was issued.
    The Director finds that the changes described above are consistent 
with the Federal regulations at 30 CFR 845.13 and 845.16, except as 
follows. Subsection (f) contains language that is substantively 
identical to its Federal counterpart at 30 CFR 845.16(a), but it is 
punctuated differently, with the result that its meaning differs from 
the Federal regulation. In order to clarify the meaning of this 
provision, so that it can be interpreted to be no less effective than 
its Federal counterpart, the period after the first sentence, ending 
with ``subsection (b),'' must be changed to a comma, and the comma 
after the term ``demonstrably unjust'' must be changed to a period. 
Pennsylvania was informed of this in a teleconference by the 
Harrisburg, PA OSM Office, and agreed to make the change. The change 
was published in the Pennsylvania Bulletin dated September 23, 2000. 
(Administrative Record No. Pa. 845.09) The Director thus finds that the 
changes described render this provision substantively identical to and 
therefore consistent with the Federal regulations at 30 CFR 845.16(a).

Section 86.195(c)  Penalties Against Corporate Officers

    PADEP is adding new subsection (c) which allows a corporate officer 
to postpone payment of an individual civil penalty where the officer or 
permittee has agreed in writing on a plan for abatement of or 
compliance with a failure to abate order. The Director finds that the 
changes described above are substantively identical to and therefore 
consistent with the Federal Regulations at 30 CFR 846.18(c).

Section 86.201  Procedures for Assessment of Civil Penalties

    PADEP is adding new subsection (a) to allow operators to submit 
information to the Department and the inspector concerning violations 
within 15 days of service of a notice of violation or order. Existing 
subsections (a) through (d) are re-lettered (b) through (e), 
respectively. PADEP is adding new subsection (f) to bar the use of 
evidence obtained in an assessment conference in formal review 
proceedings. Existing subsection (f) is re-lettered as (g). The 
Director finds that the changes described above are substantively 
identical to and therefore consistent with the Federal Regulations at 
30 CFR 845.17(a) and 845.18(f).

Section 86.202  Final Action

    PADEP is changing the title of this section from ``Appeal 
Procedures'' to ``Final Action.'' The change is non-substantive in 
nature and does not render this provision inconsistent with its Federal 
counterpart at 30 CFR 845.19.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On November 3, 1999, we asked for comments from various Federal 
agencies who may have an interest in the Pennsylvania amendment 
(Administrative Record Number 845.03). We solicited comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the Federal regulations. The Federal Mine Safety and Health 
Administration responded that it did not have any comments in letters 
dated November 19, 1999 (Administrative Records Numbers PA-845.04 and 
PA-845.05.)

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to 
solicit comments and obtain the written concurrence of the EPA with 
respect to those provisions of the proposed 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.). The Director has determined that this 
amendment contains no such provisions and that EPA concurrence is 
therefore unnecessary. However, by letter dated November 3, 1999, we 
requested comments from EPA on the State's proposed amendment of 
November 2, 1999 (Administrative Record Number 845.02), and EPA 
responded in its letter dated November 29, 1999 (Administrative Record 
Number PA-

[[Page 66173]]

845.07) that it did not have any comments.

Public Comments

    No comments were received in response to our request for public 
comments.

V. Director's Decision

    Based on the above findings, we are approving the amendments to the 
Pennsylvania program. The Federal regulations at 30 CFR Part 938, 
codifying decisions concerning the Pennsylvania program, are being 
amended to implement this decision. This final rule is being made 
effective immediately (November 3, 2000) to expedite the State program 
amendment process and to encourage States to bring their programs into 
conformity with the Federal standards without undue delay. Consistency 
of State and Federal standards is required by SMCRA.
    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Pennsylvania program, we will recognize only the 
statutes, regulations, and other materials approved by OSM, together 
with any consistent implementing policies, directives, and other 
materials. We will require that Pennsylvania enforce only such 
provisions.

VI. Procedural Determinations

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 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

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 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 allowed 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 since each such 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 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.

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 the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined 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.
    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 regulation.

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.
    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: October 11, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.


    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 938--PENNSYLVANIA

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

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


    2. Section 938.15 is amended in the table by adding a new entry in

[[Page 66174]]

chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 938.15  Approval of Pennsylvania regulatory program amendments.

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   Original amendment  submission date     Date of final  publication             Citation/description
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 *                  *                  *                  *                  *                  *
                                                         *
November 2, 1999........................  November 3, 2000...........  25 Pa. Code 86.1, 86.124, 86.152, 86.156,
                                                                        86.160, 86.171, 86.182, 86.193, 86.194,
                                                                        86.195, 86.201, and 86.202.
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[FR Doc. 00-28268 Filed 11-2-00; 8:45 am]
BILLING CODE 4310-05-P