[Federal Register Volume 66, Number 32 (Thursday, February 15, 2001)]
[Proposed Rules]
[Pages 10405-10408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3836]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-132-FOR]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (Pennsylvania program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed amendment consists of excerpts of House Bill 393 containing 
costs in mine proceedings legislation. The amendment is intended to 
revise the Pennsylvania program to be consistent with the corresponding 
federal regulations.

DATES: If you submit written comments, they must be received by 4 p.m. 
(local time), March 19, 2001. If requested, a public hearing on the 
proposed amendment will be held on March 12, 2001. Requests to speak at 
the hearing must be received by 4 p.m. (local time), on March 2, 2001.

ADDRESSES: Mail or hand-deliver your written comments and requests to 
speak at the hearing to Mr. Robert J. Biggi, at the address listed 
below.
    You may review copies of the Pennsylvania program, the proposed 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the proposed amendment by 
contacting OSM's Harrisburg Field Office.
    Robert J. Biggi, Director, Office of Surface Mining Reclamation and 
Enforcement, Harrisburg Field Office, Harrisburg Transportation Center, 
Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania 
17101, Telephone: (717)782-4036, e-mail: <a href="/cdn-cgi/l/email-protection#4c2e2e252b2b250c233f213e29622b233a"><span class="__cf_email__" data-cfemail="f694949f91919fb699859b8493d8919980">[email protected]</span></a>.
    Pennsylvania Department of Environmental Protection, Bureau of 
Mining and Reclamation, Rachel Carson State Office Building, P.O. Box 
8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717)787-5103.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg 
Field Office, Telephone: (717)782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

    On July 31, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. You can find background information 
on the Pennsylvania program, including the Secretary's findings, the 
disposition of comments, and the conditions of the approval in the July 
31, 1982, Federal Register (47 FR 33050). You can find subsequent 
actions concerning the conditions of approval and program amendments at 
30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Description of the Proposed Amendment

    By letter dated January 3, 2001, (Administrative Record No. PA-
848.25), Pennsylvania submitted a proposed amendment to its program at 
the Pennsylvania Consolidated Statutes, Title 27 (Environmental 
Resources), Chapter 77, section 7708. The full text of the amendment 
is:

Excerpts of House Bill 393 Containing Costs in Mine Proceedings 
Legislation

Amending Title 27

    (Environmental Resources) of the Pennsylvania Consolidated 
Statutes, providing for participation in environmental law or 
regulation and for costs in mining proceedings.
    The General Assembly of the Commonwealth of Pennsylvania hereby 
enacts as follows:
    Section 1. Title 27 of the Pennsylvania Consolidated Statutes is 
amended by adding chapters to read:

Subpart A

General provisions

Chapter 77. Costs and fees

Sec. 7708. Costs for mining proceedings.

    (A) Purpose.--This section establishes costs and fees available 
in proceedings involving coal mining activities. The purpose of this 
section is to provide costs and fees to the same extent of section 
525(e) of the Surface Mining Control and Reclamation Act of 1977 
(Public Law 95-87, 30 U.S.C. Sec. 1201

[[Page 10406]]

et seq.) and the regulations promulgated pursuant thereto. It is 
hereby determined that it is in the public interest for the 
Commonwealth to maintain primary jurisdiction over the enforcement 
and administration of the Surface Mining Control and Reclamation Act 
of 1977 and that the purpose of this section is to maintain primary 
jurisdiction over coal mining in this Commonwealth but in no event 
to authorize standards which are more stringent than federal 
standards for the award of costs and fees.
    (B) General rule.--Any party may file a petition for award of 
costs and fees reasonably incurred as a result of that party's 
participation in any proceeding involving coal mining activities 
which results in a final adjudication being issued by the 
Environmental Hearing Board or a final order being issued by an 
appellate court.
    (C) Recipients of awards.--Appropriate costs and fees incurred 
for a proceeding concerning coal mining activities may be awarded:
    (1) To any party from the permittee, if:
    (i) The party initiates or participates in any proceeding 
reviewing enforcement actions upon a finding that a violation of a 
commonwealth coal mining act, regulation or permit has occurred or 
that an imminent hazard existed.
    (ii) The Environmental Hearing Board determines that the party 
made a substantial contribution to the full and fair determination 
of the issues.
    Except that the contribution of a party who did not initiate a 
proceeding shall be separate and distinct from the contribution made 
by a party initiating the proceeding.
    (2) To any party, other than a permittee or his representative, 
from the department, if that party:
    (i) Initiates or participates in any proceeding concerning coal 
mining activities.
    (ii) Prevails in whole or in part, achieving at least some 
degree of success on the merits.
    Upon a finding that the party made a substantial contribution to 
a full and fair determination of the issues.
    (3) To a permittee from the department when the permittee 
demonstrates that the department in a matter concerning coal mining 
activities issued an order of cessation, a compliance order or an 
order to show cause why a permit should not be suspended or revoked, 
in bad faith and for the purpose of harassing or embarrassing the 
permittee.
    (4) To a permittee from any party where the permittee 
demonstrates that the party, in bad faith and for the purpose of 
harassing or embarrassing the permittee:
    (i) Initiated a proceeding under one or more of the coal mining 
acts or the regulations promulgated pursuant to any of those acts 
concerning coal mining activities;
    Or
    (ii) participated in such a proceeding in bad faith for the 
purpose of harassing or embarrassing the permittee.
    (D) Time for filing.--the petition for an award of costs and 
fees shall be filed with the Environmental Hearing Board within 30 
days of the date an adjudication of the Environmental Hearing Board 
becomes final.
    (E) Contents of petition.--A petition filed under this section 
shall include the name of the party from whom costs and fees are 
sought and the following shall be submitted in support of the 
petition:
    (1) An affidavit setting forth in detail all reasonable costs 
and fees reasonably incurred for or in connection with the party's 
participation in the proceeding.
    (2) Receipts or other evidence of such costs and fees.
    (3) Where attorney fees are claimed, evidence concerning the 
hours expended on the case, the customary commercial rate of payment 
for such services in the area and the experience, reputation and 
ability of the individual or individuals performing the services.
    (F) Answer.--Any party shall have 30 days from service of the 
petition within which to file an answer to such petition.
    (G) Exclusive remedy.--Except for section 601 of the act of June 
22, 1937 (Pub. L. 1987, No. 394), known as the Clean Streams Law, 
Section 18.3 of the act of May 31, 1945 (Pub. L. 1198, No. 418), 
known as the Surface Mining Conservation and Reclamation Act, 
Section 13 of the Act of April 27, 1966 (1st Sp.Sess., Pub. L. 31, 
No. 1), known as the Bituminous Mine Subsidence and Land 
Conservation Act and Section 13 of the act of September 24, 1968 
(Pub. L. 1040, No. 318), known as the Coal Refuse Disposal Control 
Act, this section shall be the exclusive remedy for the awarding of 
costs and fees in proceedings involving coal mining activities.
    (H) Definitions.--The following words and phrases when used in 
this section shall have the meanings given to them in this 
subsection unless the context clearly indicates otherwise:
    Coal mining activities. The extraction of coal from the earth, 
waste or stockpiles, pits or banks by removing the strata or 
material which overlies or is above or between them or otherwise 
exposing and retrieving them from the surface, including, but not 
limited to, strip mining, auger mining, dredging, quarrying and 
leaching and all surface activity connected with surface or 
underground coal mining, including, but not limited to, exploration, 
site preparation, coal processing or cleaning, coal refuse disposal, 
entry, tunnel, drift, slope, shaft and borehole drilling and 
construction, road construction, use, maintenance and reclamation, 
water supply restoration or replacement, repair or compensation for 
damages to structures caused by underground coal mining and all 
activities related thereto.
    Coal mining acts. The provisions of the act of June 22, 1937 
(Pub. L. 1987, No. 394), known as the Clean Streams Law, the act of 
May 31, 1945 (Pub. L. 1198, No. 418), known as the Surface Mining 
Conservation and Reclamation Act, the Act of April 27, 1966 (1st 27 
Sp.Sess., Pub. L. 31, No. 1), known as the Bituminous Mine 
Subsidence and Land Conservation Act, and the act of September 24, 
1968 (Pub. L. 1040, No. 318), known as the Coal Refuse Disposal 
Control Act, which govern coal mining or activities related to coal 
mining.
    Costs and fees. All reasonable costs and expenses, including 
attorney fees and expert witness fees, reasonably incurred as a 
result of participation in a proceeding involving coal mining 
activities.
    Department. The Department of Environmental Protection of the 
Commonwealth.
    Proceeding. Appeals of final Department of Environmental 
Protection actions before the Environmental Hearing Board and 
judicial review of Environmental Hearing Board adjudications.
    Section 2. (A) The following acts or parts of acts are repealed:
    The fifth sentence of section 4(b) and subsection (f)(5) of 
section 4.2 of the act of May 31, 1945 (Pub. L. 1198, No. 418), 
known as the Surface Mining Conservation and Reclamation Act.
    The last sentence of section 5(g) of the act of April 27,1966 
(1st Sp.Sess., Pub. L. 31, No. 1), known as the Bituminous Mine 
Subsidence and Land Conservation Act.
    The last sentence of section 5(i) of the act of September 24, 
1968 (Pub. L. 1040, No. 318), known as the Coal Refuse Disposal 
Control Act.
    (B) All other acts and parts of acts are repealed insofar as 
they are inconsistent with this act.
    Section 3. The addition of 27 Pa.C.S. Section 7708 shall apply 
to all proceedings and petitions for costs and fees filed after the 
effective date of this act.
    Section 4. This act shall take effect as follows:
    (1) The following provisions shall take effect immediately:
    (i) The addition of 27 Pa.C.S. Section 7708.
    (ii) this section.
    (2) The remainder of this act shall take effect in 60 days.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Pennsylvania program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should explain the reason for your recommendation(s). We may not be 
able to consider or include in the Administrative Record comments 
delivered to an address other than the one listed above (see 
ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. PA-132-
FOR'' and your name and return address in your Internet message. If you 
do not receive a confirmation that we have received your Internet 
message, contact the Harrisburg Field Office at (717) 782-4036.

[[Page 10407]]

    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.
    Public Hearing: If you wish to speak at the public hearing, you 
should contact the person listed under FOR FURTHER INFORMATION CONTACT 
by 4 p.m. (local time), on March 2, 2001. The location and time of the 
hearing will be arranged with those persons requesting the hearing. If 
no one requests an opportunity to speak at the public hearing, the 
hearing will not be held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who testifies at a public 
hearing provide us with a written copy of his or her testimony. The 
public hearing will continue on the specified date until all persons 
scheduled to speak have been heard. If you are in the audience and have 
not been scheduled to speak and wish to do so, you will be allowed to 
speak after those who have been scheduled. We will end the hearing 
after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.
    Public Meeting: If only one person requests an opportunity to speak 
at a hearing, a public meeting, rather than a public hearing, may be 
held. If you wish to meet with OSM representatives to discuss the 
proposed amendment, you may request a meeting by contacting the person 
listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be 
open to the public and, if possible, notices of meetings will be posted 
at the locations listed under ADDRESSES. A written summary of each 
meeting will be made a part of the Administrative Record.

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.

[[Page 10408]]

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: January 18, 2001.
Vann Weaver,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-3836 Filed 2-14-01; 8:45 am]
BILLING CODE 4310-05-P


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