Pennsylvania Regulatory Program, 46877-46880 [2010-19017]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46877-46880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19017]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-156-FOR; OSM 2010-0004]


Pennsylvania Regulatory Program

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

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

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SUMMARY: We are announcing receipt of an amendment to the Pennsylvania 
program (the ``Pennsylvania program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act) (Administrative Record 
No. 888.00). The revisions to the regulations specifically address 
fourteen required program amendments and the remining financial 
guarantee program, thereby addressing a portion of the Pennsylvania 
regulatory provisions that were previously determined not to be 
approvable. Pennsylvania intends to revise its program to be consistent 
with the corresponding Federal regulations. This document gives the 
times and locations that the Pennsylvania program and this submittal 
are available for your inspection, the comment period during which you 
may submit written comments, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., local time 
September 3, 2010. If requested, we will hold a public hearing on 
August 30, 2010. We will accept requests to speak until 4 p.m., local 
time on August 19, 2010.

ADDRESSES: You may submit comments, identified by ``PA-156-FOR; Docket 
ID: OSM-2010-0004'' by either of the following two methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The proposed rule has been assigned Docket ID: OSM-2010-0004. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to https://www.regulations.gov and follow the instructions.
     Mail/Hand Delivery/Courier: Mr. George Rieger, Chief, 
Pittsburgh Field Division, Office of Surface Mining Reclamation and 
Enforcement, Harrisburg Transportation Center, 415 Market St., Suite 
304, Harrisburg, PA 17101.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining copies of documents at https://www.regulations.gov, information may also be obtained at the addresses 
listed below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the amendment by 
contacting OSM's Pittsburgh Field Division Office.

George Rieger, Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, Harrisburg Transportation Center, 
415 Market St., Suite 304, Harrisburg, Pennsylvania 17101, Telephone: 
(717) 782-4036, E-mail: grieger@osmre.gov;
William S. Allen Jr., Acting Director, Bureau of Mining and 
Reclamation, Pennsylvania Department of Environmental Protection, 
Rachel Carson State Office Building, P.O. Box 8461, Harrisburg, 
Pennsylvania 17105-8461, Telephone: (717) 787-5015, E-mail: 
wallen@state.pa.us.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036. E-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description of the Amendment
III. Public Comment Procedures
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 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.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior

[[Page 46878]]

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 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. Description of the Amendment

    By letter dated March 17, 2010, Pennsylvania sent us an amendment 
to its program, Administrative Record Number 888.00, under SMCRA (30 
U.S.C. 1201 et seq.). Pennsylvania's submittal is intended to address 
fourteen required amendments found at 30 CFR 938.16 (rr), (tt), (uu), 
(vv), (ww), (xx), (zz), (aaa), (ccc), (iii), (jjj), (nnn), (ppp), and 
(ttt). It is also intended to address a partial disapproval of a 1998 
submission that included regulations about remining financial 
guarantees, which is found at 30 CFR 938.12(c)(3).

Required Amendments at 30 CFR 938.16

    The required amendments at 30 CFR 938.16 require Pennsylvania to 
submit proposed amendments to:
    (rr) section 86.36(c) to require permit denial for unabated 
violations of any Federal or State program under SMCRA, without the 
three-year limitation.
    (tt) section 86.37(a)(10) to require that all violations of the 
Federal SMCRA and all programs approved under SMCRA be considered in 
determining whether there is a demonstrated pattern of willful 
violations.
    (uu) section 86.37(a) to require that the criteria upon which the 
regulatory authority bases its decision to approve or deny a permit 
application are based on all information available to the regulatory 
authority.
    (vv) section 86.37(a) to include language that would prohibit 
permit approval if the applicant or anyone linked to the applicant 
through the definition of ``owned or controlled'' or ``owns or 
controls'' has forfeited a bond and the violation upon which the 
forfeiture was based remains unabated.
    (ww) sections 86.37(a)(9) and (a)(16) to require denial of a permit 
if it finds that those linked to the applicant through the definition 
of ``owned or controlled'' or ``owns or controls'' are delinquent in 
payment of abandoned mine reclamation fees or delinquent in the payment 
of State and Federal final civil penalty assessments.
    (xx) section 86.37(c) to require that the regulatory authority's 
reconsideration of its decision to approve the permit include a review 
of information, updated for the period from permit approval to permit 
issuance, pertaining to the payment of abandoned mine reclamation fees 
and civil penalty fees and the status of unabated violations upon which 
a bond forfeiture was based.
    (zz) section 86.62(b)(2)(ii) to correct the cross-reference to 
section 86.63 with a reference to section 86.212(c).
    (aaa) sections 86.62(c) and 87.14(3) to include the requirement 
that the application include the address for each permit held by a 
related entity or company, and identification of the regulatory 
authority for such permit.
    (ccc) section 86.133(f) to require that exploration on areas 
designated as unsuitable for mining shall be subject to permitting 
requirements no less effective than the Federal regulations at 30 CFR 
772.12.
    (iii) section 87.112(c) and 89.111(c) to require a seismic safety 
factor of at least 1.2 for all impoundments that meet the criteria of 
30 CFR 77.216(a) or are located where failure could cause loss of life 
or serious property damage.
    (jjj) section 90.112(c)(2) to require that all impounding 
structures that meet the criteria of 30 CFR 77.216(a) and are either 
constructed of coal mine waste or intended to impound coal mine waste 
have sufficient spillway capacity and/or storage capacity to safely 
pass or control the runoff from the 6-hour PMP or greater precipitation 
event.
    (nnn) section 86.159(1)(2) to require two officer signatures for 
each corporate indemnitor, an affidavit from the corporation(s) 
certifying that entering into the indemnity agreement is valid under 
all applicable Federal and State laws, and documents that evidence the 
authority of the signatories to bind the corporation and an 
authorization by the parent corporation to enter into the indemnity 
agreement.
    (ppp) section 86.5(m), or otherwise amend its program, to provide 
for notification of the operator and any intervenors of a decision not 
to revoke an exemption.
    (ttt) sections 88.321 and 90.133, or otherwise amend its program to 
require that no noncoal waste be deposited in a coal refuse pile or 
impounding structure.

Pennsylvania Response to Required Amendments at 30 CFR 938.16

    The provisions of the Pennsylvania rules that Pennsylvania proposes 
to revise and/or add are found at 25 Pennsylvania Code. The following 
is a summary of the regulatory changes being proposed to address 
program deficiencies noted at 30 CFR 938.16.
Section 86.1, Definitions
    The Noncoal Surface Mining and Reclamation Act is being added to 
the list for the definition of Acts. When Chapter 86 was promulgated in 
1983, noncoal mining was regulated under the authority of the Surface 
Mining Conservation and Reclamation Act (SMCRA). In 1984, the Noncoal 
Surface Mining Conservation and Reclamation Act (NSMCRA) was enacted, 
superseding the role of SMCRA for noncoal mining. In order to comply 
with Federal program requirements (and to have an effective regulatory 
program) relating to incidental extraction of coal under noncoal mining 
permits, it is necessary to include NSMCRA in the applicable Acts. This 
amendment addresses the requirement set forth at 30 CFR 938.16 (tt).
    The definition of ``owned or controlled'' and ``owns or controls'' 
is being corrected to include the current reference to the Federal 
regulations relating to definitions. This addresses Federal regulation 
revisions that resulted in the definition being placed in a different 
section of the State program.
Section 86.5, Extraction of Coal Incidental to Noncoal Surface Mining
    Section 86.5(m) is amended to add the requirement for the 
Department to notify interested parties in the case that the Department 
decides not to revoke an exemption from the coal permitting 
requirements. This amendment addresses the requirement set forth at 30 
CFR 938.16 (ppp).
Section 86.36, Review of Permit Applications
    Section 86.36 is amended to delete the three-year time limitation 
for the review of an outstanding Federal violation. This amendment 
addresses the requirement set forth at 30 CFR 938.16 (rr).
Section 86.37, Criteria for Permit Approval or Denial
    Section 86.37(a)(8) is amended to include a reference to the 
Federal definition of a violation. This amendment was required by the 
Federal requirement set forth at 30 CFR 938.16 (ww). This amendment 
also addresses the deficiencies set forth at 30 CFR 938.16 (uu), (vv), 
and (xx).
Section 86.62, Identification of Interests
    Section 86.62(b)(2)(ii) is being amended to correct the reference 
to the Federal minimum enforcement action.

[[Page 46879]]

This amendment addresses the requirement set forth at 30 CFR 
938.16(zz).
    Section 86.62(c) is being amended to include the permittee name and 
address as required information relating to permits for related 
entities and to clarify that issued permits must be reported as part of 
an application. This amendment addresses the requirement set forth at 
30 CFR 938.16 (aaa).
Section 86.103(g), Procedure; Section 86.129, Coal Exploration on Areas 
Designated as Unsuitable for Surface Mining Operations; and Section 
86.133, General Requirements
    Section 86.103(g) is being added to require that the procedures for 
processing an assertion of Valid Existing Rights (VER) follow the 
Federal requirements by incorporating the Federal procedural 
requirements by reference.
    Section 86.129(b) is being amended to provide specific procedures 
and requirements for permit applications for exploration activities on 
lands designated as unsuitable for mining. The detailed requirements 
mirror the Federal procedures and standards for approval. This 
amendment also results in the renumbering of current subsections 
86.129(b)(1) and 86.129(b)(2).
    Section 86.133(f) is being amended to clarify that a permit is 
required for exploration activities on lands designated as unsuitable 
for mining.
    These amendments address the requirements set forth at 30 CFR 
938.16(ccc).
Section 86.159, Self-Bonding
    Section 86.159(l)(1) is amended to incorporate the language in the 
Federal regulations regarding the indemnification of self-bonds in the 
case of a corporate applicant that has a parent company. This amendment 
addresses the requirement set forth at 30 CFR 938.16(nnn).
Section 87.112, Hydrologic Balance: Dams, Ponds, Embankments and 
Impoundments--Design, Construction and Maintenance and Section 89.111, 
Large Impoundments
    Section 87.112(c) is amended to add a requirement to protect miners 
or the public. Section 87.112(c)(1) is amended to add the required 
seismic safety factor.
    Section 89.111(c) is amended to add a requirement to protect miners 
or the public. Section 89.11(c)(1) is amended to add the required 
seismic safety factor.
    These amendments address the requirement set forth at 30 CFR 
938.16(iii).
Section 88.321, Disposal of Noncoal Wastes and Section 90.133, Disposal 
of Noncoal Wastes
    Section 88.321 is amended to include all noncoal wastes and to 
apply the prohibition to impoundments.
    Section 90.133 is amended to include all noncoal wastes and to 
apply the prohibition to impoundments.
    These amendments address the requirements set forth at 30 CFR 
938.16(ttt).
Section 90.112, Hydrologic Balance: Dams, Ponds, Embankments and 
Impoundments--Design, Construction and Maintenance
    Section 90.112(c) is amended to add a requirement to protect miners 
or the public. Section 90.112(c)(2) is amended to match the language in 
the Federal regulations regarding spillway capacity for large 
impoundments at coal refuse disposal sites. These amendments address 
the requirements set forth at 30 CFR 938.16 (jjj).

OSM Partial Disapproval of 1998 Regulatory Amendment Found at 30 CFR 
938.12(c)(3)

    We did not approve a provision of a proposed program amendment that 
Pennsylvania submitted on December 18, 1998, regarding 25 Pa Code 
86.281(e). The last sentence which states, ``If the actual cost of 
reclamation by the Department exceeds the amount reserved, additional 
funds from the Remining Financial Assurance Fund will be used to 
complete reclamation'' was not approved.

Pennsylvania's Response to the OSM Disapproval at 30 CFR 938.12(c)(3)

    The provisions of the Pennsylvania rules that Pennsylvania proposes 
to revise and/or add are found at 25 Pennsylvania Code. The following 
regulatory changes are being made to the remining financial guarantee 
program and should address the portion of 25 Pa Code 86.281(e) that was 
not approved as documented at 30 CFR 938.12(c)(3).
Section 86.165, Failure to Maintain Proper Bond
    Section 86.165(a) is amended to add that an operator's obligation 
to maintain a proper bond includes the payments required under the 
Remining Financial Guarantee program. This amendment will allow the 
enforcement of the payment requirement using consistent procedures.
Section 86.281, Financial Guarantees To Insure Reclamation--General
    Section 86.281(c) is amended to provide that the Department will 
designate a specified amount in the financial guarantees special 
account as financial assurance for the reclamation obligation of a 
permit with an approved remining area, rather than reserving a portion 
of those funds. This change is necessary in light of the conversion to 
a conventional bonding program. Under conventional bonding, the total 
reclamation cost is accounted for when determining the bond amount, 
thus enabling the Department to calculate more precisely the amount of 
funds that may need to be used to reclaim an approved remining area 
covered by a remining financial guarantee.
    Section 86.281(e) is amended in conjunction with the revision in 
Section 86.281(c) and to clarify that all of the bonds forfeited 
(including the Remining Financial Guarantee) on a permit are to be used 
for reclamation of the mine site (including the remining area). It also 
is amended to allow, rather than require, the use of additional funds 
from the Remining Financial Assurance Fund if they are needed to 
complete the reclamation of the mine site. This change is based 
primarily on the concept that under conventional bonding, the bond 
amount posted is the amount required to complete the reclamation. In 
addition, it provides the Department with flexibility to use money from 
the Remining Financial Assurance Fund to pay for the necessary 
reclamation.
Section 86.282, Participation Requirements
    Section 86.282(a)(2) is being revised to delete the option of using 
the ability to obtain a letter of credit as a demonstration of 
financial responsibility. Experience in implementing the Remining 
Financial Guarantee program has shown that the ability to obtain a 
letter of credit from a bank is not a good test of financial 
responsibility.
Section 86.283, Procedures
    Section 86.283(a)(1) is amended to change the way the amount of the 
payment is determined as a result of the change to conventional 
bonding. The deleted language is based on the per-acre bond rate 
system. The proposed wording is based on the amount of the Remining 
Financial Guarantee.
    Section 86.283(d) is amended to clarify how financial guarantee 
funds are allocated.
    Section 86.283(e) is amended to delete language relating to the 
process of

[[Page 46880]]

``bond rollover'' that was allowed under the Alternative Bonding System 
(ABS). The concept of ``bond rollover'' is not pertinent to 
conventional bonding.
    Section 86.283(f) is being added to reduce the potential risk of 
insolvency of the Remining Financial Assurance Fund by requiring the 
replacement of a Remining Financial Guarantee in the event a 
pollutional discharge occurs at a mine site bonded with a Remining 
Financial Guarantee.
Section 86.284, Forfeiture
    Sections 86.284(a) and (c) are amended to be consistent with the 
changes made in Sections 86.281(c) and (e).
    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the submission satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Pennsylvania program.

Electronic or Written Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent Tribal or 
Federal laws or regulations, technical literature, or other relevant 
publications. We cannot ensure that comments received after the close 
of the comment period (see DATES) or sent to an address other than 
those listed above (see ADDRESSES) will be included in the docket for 
this rulemaking and considered.
Public Availability of Comments
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you may 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. We will not consider anonymous comments.
Public Hearing
    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time 
August 19, 2010. If you are disabled and need reasonable accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If there is only limited interest in participating in a public 
hearing, we may hold a public meeting rather than a public hearing. If 
you wish to meet with us to discuss the submission, please request a 
meeting by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT. All such meetings are open to the public and, if possible, we 
will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
administrative record.

IV. Procedural Determinations

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.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 28, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2010-19017 Filed 8-3-10; 8:45 am]
BILLING CODE 4310-05-P