Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12265 

49An asterisk (*) indicates that the commenter 

addressed Reliability Standard IRO–006–4. 

50M–S–R Public Power Agency filed a motion to 

intervene without comments. 

view and/or print the contents of this 

document via the Internet through 

FERC’s Home Page (http://www.ferc.gov) 

and in FERC’s Public Reference Room 

during normal business hours (8:30 a.m. 

to 5 p.m. Eastern time) at 888 First 

Street, NE., Room 2A, Washington, DC 

20426. 

79. From FERC’s Home Page on the 

Internet, this information is available on 

eLibrary. The full text of this document 

is available on eLibrary in PDF and 

Microsoft Word format for viewing, 

printing, and/or downloading. To access 

this document in eLibrary, type the 

docket number excluding the last three 

digits of this document in the docket 

number field. 

80. User assistance is available for 

eLibrary and the FERC’s Web site during 

normal business hours from FERC 

Online Support at (202) 502–6652 (toll 

free at 1–866–208–3676) or e-mail at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. E-mail the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

VII. Effective Date and Congressional 

Notification 

81. The Supplemental Final Rule is 

effective April 23, 2009. The 

Commission has determined, with the 

concurrence of the Administrator of the 

Office of Information and Regulatory 

Affairs of OMB, that this rule is not a 

‘‘major rule’’ as defined in section 351 

of the Small Business Regulatory 

Enforcement Fairness Act of 1996. 

List of Subjects in 18 CFR Part 40 

Electric power, Electric utilities, 

Reporting and recordkeeping 

requirements. 

By the Commission. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

Appendix A—NOPR Commenters 49

Alcoa Inc. (Alcoa)* 

Constellation Energy Commodities Group, 

Inc. (Constellation)* 

Independent Electricity System Operator of 

Ontario (IESO)* 

ISO/RTO Council* 

ITCTransmission; Michigan Electric 

Transmission Company, LLC; and ITC 

Midwest LLC 

Lafayette Utilities and the Louisiana Energy 

and Power Authority (Lafayette and 

LEPA)* 

North American Electric Reliability Corp. 

(NERC)* 

NRG Companies (NRG)* 

Southern Company Services, Inc. (Southern) 

Appendix B—Comments in Response to 

NERC’s September 11, 2008 Filing 50

ISO/RTO Council 

NRG 

Southern 

[FR Doc. E9–6416 Filed 3–23–09; 8:45 am] 

BILLING CODE 6717–01–P 

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. 

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: grieger@osmre.gov. 

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 

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12266 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

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. 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 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 Federallyrecognized 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. 

■ For the reasons set out in the 

preamble, 30 CFR part 938 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. 

§ 938.16 [Amended] 

■ 2. In § 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 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–1986–0005; FRL–8784–7] 

National Oil and Hazardous Substance 

Pollution Contingency Plan; National 

Priorities List 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final Notice of Partial 

Deletion of the Mouat Industries 

Superfund Site from the National 

Priorities List. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region 8 is publishing a 

direct final Notice of Partial Deletion of 

the surface and subsurface soil 

components of the Mouat Industries 

Superfund Site (Site), located in the 

Town of Columbus, Stillwater County, 

Montana, from the National Priorities 

List (NPL). The NPL, promulgated 

pursuant to section 105 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) of 1980, as amended, is 

an appendix of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP). This direct 

final partial deletion is being published 

by EPA with the concurrence of the 

State of Montana (State), through the 

Montana Department of Environmental 

Quality (MDEQ) because EPA has 

determined that all appropriate 

response actions at these identified 

parcels under CERCLA, other than five 

year reviews and operation and 

maintenance, have been completed. 

However, this partial deletion does not 

preclude future actions under 

Superfund. 

This partial deletion pertains to the 

surface and subsurface soils component 

of the Mouat Industries Superfund Site. 

The groundwater component will 

remain on the NPL and is not being 

considered for deletion as part of this 

action. 

DATES: This direct final partial deletion 

will be effective May 26, 2009 unless 

EPA receives adverse comments by 

April 23, 2009. If adverse comments are 

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