Pennsylvania Regulatory Program, 63125-63130 [2015-26477]

Download as PDF Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations that the State submittal, which is the subject of this rule, is based upon 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 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 facts that the State submittal, which is the subject of this rule is based upon Original amendment submission date * * March 30, 2012 ........................ For the reasons set out in the preamble, 30 CFR part 935, is amended as set forth below: Editorial Note: This document was received for publication by the Office of Federal Register on October 14, 2015. [FR Doc. 2015–26479 Filed 10–16–15; 8:45 am] BILLING CODE 4310–05–P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [SATS No. PA–154–FOR; Docket ID: OSM– 2010–0002; S1D1S SS08011000 SX064A000 167S180110 S2D2S SS08011000 SX064A000 16XS501520] Pennsylvania Regulatory Program Office of Surface Mining Reclamation and Enforcement (OSMRE), Interior. ACTION: Final rule; approval of amendment. AGENCY: Jkt 238001 1. The authority citation for part 935 continues to read as follows: ■ Authority: 30 U.S.C. 1201 et seq. 2. Section 935.15 is amended in the table by adding a new entry in chronological order by ‘‘Date of final publication’’ to read as follows: ■ § 935.15 Approval of Ohio regulatory program amendments. * * * * * * * * * OAC §§ 1501:13–1–02; –14–02; –14–06; –4–03; –4–06; –5–02; –1–14. Changes to Definitions, Ownership and Control, Permit and Application Information and Transfer, assignment or Sale of Permit Rights, and Improvidently Issued Permit procedures. We are approving an amendment to the Pennsylvania regulatory program (the ‘‘Pennsylvania program’’) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment that we are approving involves a statutory amendment to Pennsylvania’s Coal Refuse Disposal Control Act (CRDCA). The amendment adds another category of sites considered as preferred when selecting a location for the placement of coal refuse. DATES: Effective Date: This rule is effective October 19, 2015. FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, Telephone: (412) 937– 2827, email: bowens@osmre.gov. SUPPLEMENTARY INFORMATION: SUMMARY: (a) By December 18, 2015, Ohio shall amend its program, or provide a written description of an amendment together with a timetable for enactment which is consistent with established administrative or legislative procedures in the State, to require permit applications to list all unabated ‘‘violation notices’’, as that term is defined in the Ohio approved program. (b) [Reserved] PART 935—OHIO Citation/description * § 935.16 Required regulatory program amendments. asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER Dated: June 26, 2015. Thomas D. Shope, Regional Director, Appalachian Region. October 19, 2015 3. Section 935.16 is added to read as follows: 16:42 Oct 16, 2015 List of Subjects in 30 CFR Part 935 Intergovernmental relations, Surface mining. Underground mining. Required regulatory program amendments. Date of final publication ■ VerDate Sep<11>2014 Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. 63125 I. Background on the Pennsylvania Program II. Description and 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, ‘‘a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 requirements of the Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.’’ 30 U.S.C. 1253(a)(1) and (7). 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, (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. We are providing the following background information as it is referenced in our findings and/or response to comments. Background: Pennsylvania’s Coal Refuse Disposal Control Act (CRDCA) CRDCA and Preferred Sites: Section 4.1(a) of the CRDCA, 52 P.S. 30.54a(a) provides site selection criteria for determining where to place coal refuse following mining activities. The Act provides for coal refuse to be disposed on a ‘‘preferred site’’ unless it can be demonstrated to the Pennsylvania Department of Environmental Protection (PADEP) that another site is more suitable based upon engineering, geology, economics, transportation systems, and social factors, and is not adverse to the public interest. Pennsylvania provided various justifications for the inclusion of such provisions: It limits sites eligible to receive coal refuse placement by prohibiting placement in certain environmentally sensitive areas; it encourages disposal of coal refuse on E:\FR\FM\19OCR1.SGM 19OCR1 asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER 63126 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations areas previously affected by coal mining; and it is better to have a few large refuse disposal areas than numerous small coal refuse disposal sites. The CRDCA provided that areas that have been previously affected by mining activities within a specific area of the source mine are preferred for coal refuse disposal unless the applicant demonstrates that another site is more suitable based on site-specific conditions. Pennsylvania had defined a preferred site as one of the following: (1) A watershed polluted by acid mine drainage; (2) a watershed containing an unreclaimed surface mine, but which has no mining discharge; (3) a watershed containing an unreclaimed surface mine with discharges that could be improved by the proposed coal refuse disposal operation; (4) unreclaimed coal refuse piles that could be improved by the proposed coal refuse disposal operation; and (5) other unreclaimed areas previously affected by mining activities. Section 4.1(a), 52 P.S. 30.54a(a) of CRDCA. Permitting Pennsylvania Coal Refuse Disposal Sites: The CRDCA at section 4.1 and the regulations provide a twostep process for the permitting of coal refuse disposal sites. The first step is a pre-application site selection process intended to steer applicants to areas previously disturbed by mining. In the absence of previously disturbed sites, the site selection process requires an evaluation of nearby candidate sites with the goal of choosing the site that results in minimal adverse impacts. Following Pennsylvania’s approval of the applicant’s site selection, the applicant proceeds to the second step, which involves preparing and submitting a permit application for the selected site. Pennsylvania’s regulations, at 25 Pa. Code 90.5, outline the need to conduct the mandatory site selection step prior to applying for a permit for coal refuse disposal activities, and 25 Pa. Code 90.3 and 90.11 through 90.50 outline the coal refuse disposal permitting requirements. Pennsylvania’s Coal Refuse Disposal Program Guidance [Protection of Endangered Species]: The Federal regulations at 30 CFR 816/817.97, concerning the protection of fish and wildlife and related values, require the minimization of disturbance and adverse impacts and enhancement where practicable, and consultations with State and Federal fish and wildlife resources agencies. See Other Background Information (Endangered Species for additional information). Pennsylvania’s Coal Refuse Disposal Program Guidance (CRDPG), effective VerDate Sep<11>2014 16:42 Oct 16, 2015 Jkt 238001 February 23, 1998, was intended to further clarify what PADEP stated in a March 8, 1996, letter to the Environmental Protection Agency concerning the implementation of section 4.1(b) of the CRDCA. The CRDPG specifically clarifies the intended implementation of section 4.1(b) related to threatened or endangered species. Pennsylvania’s policy concerning the implementation of section 4.1(b) is as follows: With respect to preferred sites, Pennsylvania’s regulations provide that Pennsylvania will not approve (via the site selection process, See 25 Pa. Code § 90.202(e)(7)) or permit (via the permitting process) a site that is known or likely to contain Federally listed threatened or endangered species, unless Pennsylvania concludes and the United States Fish and Wildlife Service (USFWS) concurs that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the ‘‘take’’ of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act. OSMRE Approval of CRDCA Section 4.1: We approved section 4.1 of the CRDCA (section noted above), Site Selection, on April 22, 1998, finding that while there are no direct Federal counterparts to the statutory language, the establishment of criteria to be used for selecting sites for coal refuse disposal is not inconsistent with SMCRA. See 30 U.S.C. 1202(d). Pennsylvania’s rationale for encouraging coal mining activities that will result in the improvement of previously mined areas with preexisting pollutional discharges is reasonable and not inconsistent with SMCRA at section 102, concerning the purposes of SMCRA. See 63 FR 19802. II. Description and Submission of the Amendment By letter dated February 24, 2010 (Administrative Record No. PA 837.111), Pennsylvania sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania submitted the amendment to include changes made at its own initiative. The changes involve a recent statutory amendment to Pennsylvania’s CRDCA, 52 P.S., Section 30.51 et seq. With this amendment, Pennsylvania proposed a revision adding another category of sites to the list of ‘‘preferred sites’’ currently found in section 4.1(a). The proposed addition (subsection 4.1(a)(6)) would designate an ‘‘area adjacent to or an expansion of an existing coal refuse disposal site’’ as a preferred site. PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 In its submission, Pennsylvania indicates this amendment should be approved as consistent with Federal requirements for the following reasons: (1) Counterpart Federal Regulations: There is no counterpart to section 4.1 of the CRDCA contained either in SMCRA or in OSMRE’s regulations implementing Federal SMCRA; (2) Coal Refuse Disposal Control Act: The amendment is consistent with the ‘‘findings and declaration of policy’’ in section 1 of the CRDCA, which states that: The accumulation and storage of coal refuse material can cause a condition which fails to comply with the established rules, regulations, or quality standards adopted to avoid air or water pollution and can create a danger to persons, property, or public roads or highways, either by reason of shifting or sliding, or by exposing persons walking onto the refuse to the danger of being burned. In order to minimize the exposure to these conditions and dangers, it is better to have a few large coal refuse disposal sites as opposed to numerous small coal refuse disposal sites. 52 P.S. 30.51(1); (3) Pennsylvania Regulations— Chapter 86: All coal refuse disposal permit applications must comply with chapter 86 (regulations that apply to all coal mining activities); thus, permitting requirements remain unchanged by this statutory amendment. See 25 Pa. Code chapter 86; (4) Pennsylvania Regulations— Chapter 90: All coal refuse disposal permit applications must comply with chapter 90 (regulations that apply to coal refuse disposal activities); the siteselection process established by the CRDCA is in addition to these requirements. See 25 Pa. Code chapter 90; and (5) Species-specific Protective Measures: All coal refuse disposal permit applications must comply with any applicable species-specific protective measures developed by the USFWS and Pennsylvania’s mining regulatory program to minimize anticipated incidental take of threatened or endangered species; thus, speciesspecific protective measures remain unaffected by the amendment. III. OSMRE’s Findings For the reasons set forth below, we are approving the amendment request under SMCRA at 30 U.S.C. 1253, and the Federal regulations at 30 CFR 732.15 and 732.17. Federal Counterparts: Five categories of preferred sites in section 4.1(a) were approved by OSMRE on April 22, 1998. See 63 FR 19802. As we stated in that notice, there was no direct Federal E:\FR\FM\19OCR1.SGM 19OCR1 asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations counterpart to the proposed State language. We further noted that the establishment of criteria to be used for selecting sites for coal refuse disposal is not itself inconsistent with the intent of SMCRA. The Federal regulations do not include specific criteria for establishing coal refuse disposal areas. Allowing refuse disposal on areas adjacent to or an expansion of an existing coal refuse disposal site, provided that all other environmental and safety requirements are met, is not inconsistent with section 102(d) of SMCRA, 30 U.S.C. 1202(d), which requires surface coal mining operations to be conducted so as to protect the environment. That same rationale applies to our approval of the addition of the sixth category. Consistent with CRDCA Policy: We note that the five preferred site categories previously identified in the CRDCA involve watershed areas previously affected by coal mining; other unreclaimed areas previously affected by mining activities; and unreclaimed coal refuse disposal sites that could be improved by the proposed coal refuse disposal operation. While the additional criterion that is the subject of this amendment would allow a previously undisturbed site to be deemed ‘‘preferred,’’ we note that the addition of ‘‘an area adjacent to or an expansion of an existing coal refuse disposal site’’ to the categories of ‘‘preferred’’ sites is consistent with the CRDCA policy as it would expand an already existing coal refuse disposal site, rather than create a new one. Also, adding this category would minimize the need to increase the number of coal refuse disposal sites. Pennsylvania Regulations: As mentioned above, preferred sites are subject to all the permitting requirements established to ensure environmental protection. Once the selection of a site has been approved, an applicant must submit a site development plan that meets the informational requirements, permitting requirements, and performance standards in chapter 90, and also meets the requirements of chapter 86. The permitting regulations at chapter 86.31(c)(4) require Pennsylvania to notify Federal, State, and local government agencies with jurisdiction over, or an interest in, the area of the proposed activities, including, but not limited to, general governmental entities and fish and wildlife and historic preservation agencies, upon receipt of an application for a mining permit. The regulations at 25 Pa. Code 90.202(e)(7) regarding site selection, provide that at preferred sites known to contain Federally listed threatened or VerDate Sep<11>2014 16:42 Oct 16, 2015 Jkt 238001 endangered species, approval will be granted only when the Department concludes, and the USFWS concurs, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the take of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act of 1973, 16 U.S.C. 1538. Pennsylvania Technical Guidance Document No. 563–2113–660, Coal Refuse Site Selection, further explains how chapter 90.202(e)(7) will be administered by PADEP. In the Background section on page 1, the guidance states that the ‘‘District Mining Office will encourage meetings involving the applicant, the Pa. Fish and Boat Commission, the Pa. Game Commission and the U.S. Fish and Wildlife Service at key points in the review process, including: Prior to the site selection process to discuss the procedures to be used; before defining the search area; before selecting the final site; and before developing a mitigation plan. The District Mining Office will also solicit input from the Pennsylvania office of the U.S. Fish and Wildlife Service, the U.S. EPA and the U.S. Army Corps of Engineers during the site selection process and the permit application review process.’’ In addition, Pennsylvania asserts that compliance with any applicable speciesspecific protective measures developed by the USFWS and Pennsylvania’s mining regulatory program to minimize anticipated incidental take of threatened or endangered species remains unaffected by this program amendment. Conclusion: Section 503(a) of SMCRA provides that state regulatory program laws must be in accordance with the requirements of SMCRA, and the state regulatory program regulations must be consistent with the regulations issued pursuant to SMCRA. The term ‘‘in accordance with’’ is defined at 30 CFR 730.5 as ‘‘must be no less stringent than, meet the minimum requirements of and include all applicable provisions of [SMCRA].’’ Section 505(b) of SMCRA, 30 U.S.C. 1255(b), further provides that any state program provision which provides for more stringent land use and environmental controls and regulations shall not be construed to be inconsistent with SMCRA. There are no direct Federal counterparts to the new proposed site selection criterion. However, by providing this criterion, and by prohibiting, generally, coal refuse disposal operations on non-preferred sites, Pennsylvania imposes a more stringent environmental control of coal refuse disposal operations than is PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 63127 provided in either SMCRA or its implementing regulations. Moreover, Pennsylvania will continue to apply the Pennsylvania counterparts to the Federal permitting and performance standard requirements. Accordingly, for the reasons set forth above, OSMRE finds that Pennsylvania’s amendment is not inconsistent with the provisions of SMCRA. We are, therefore, approving this amendment. IV. Summary and Disposition of Comments Public Comments In the June 21, 2010, Federal Register notice announcing our receipt of this amendment, we asked for public comments (75 FR 34962). No requests for public meetings were received. We received public comments from one organization, Citizens for Pennsylvania’s Future (PennFuture) on July 21, 2010, (Administrative Record No. 837.118), which are discussed below. Comment Number 1 (Preparation Activities). PennFuture states that OSMRE may not approve a program amendment that would reduce the protection of Federally listed threatened and endangered species unless and until Pennsylvania amends its regulatory program under SMCRA to require that all site preparation activities, including timbering, be authorized in advance by the issuance of a mining permit. PennFuture provided a summary of a 2010 event whereby timbering activities were undertaken by an operator without a coal mining permit (pre-permit timbering activities). PennFuture had requested that OSMRE undertake a review of this situation. PennFuture asserted that PADEP’s response to OSMRE’s inquiry regarding this event (stating that timbering is not a mining activity and, therefore, not subject to permit requirements, etc.) is evidence that a programmatic deficiency needs to be corrected. PennFuture states that OSMRE must limit its approval of the amendment so that, until the programmatic deficiency is corrected, the absolute prohibition in section 4.1(b) of the CRDCA, 52 P.S. 30.54a(b) must apply to all sites, whether preferred or non-preferred, that are ‘‘known to contain Federally listed threatened or endangered plants or animals.’’ The ‘‘absolute prohibition’’ PennFuture refers to prohibits coal refuse disposal on sites known to contain Federal endangered or threatened animals or plants or State threatened or endangered animals, unless the site is designated a preferred site. PennFuture is asking OSMRE to E:\FR\FM\19OCR1.SGM 19OCR1 63128 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER require Pennsylvania to also apply the prohibition to preferred sites until the timbering issue is resolved. PennFuture’s comments address Pennsylvania’s assertion in the program amendment that compliance with any applicable species-specific protective measures developed by the USFWS and Pennsylvania’s mining regulatory program to minimize anticipated incidental take of threatened or endangered species remains unaffected by this program amendment. PennFuture’s comments also address Pennsylvania’s assertion in the program amendment that all coal refuse disposal permit applicants must implement the measures required to implement the 1996 Biological Opinion. PennFuture refutes these assertions by referencing Pennsylvania’s actions regarding pre-permit timbering activities undertaken by the mining company, which the USFWS found to be beyond the scope of the 1996 Biological Opinion because it occurred without a SMCRA permit. PennFuture asserts that the reason PADEP’s implementation of the 1996 Biological Opinion falls short is its interpretation that timbering is not a mining activity, even if it occurs on a site for which a mining permit application is pending. Under PADEP’s interpretation of the State program, timbering is outside the scope of regulated mining activities that must be authorized in advance by the issuance of a SMCRA-based mining permit. PennFuture further comments that continuing to give effect to this interpretation would mean that the 1996 Biological Opinion would be inapplicable to the activity (timbering) presenting the greatest threat to a threatened and endangered species, the Indiana Bat, which the Biological Opinion is intended to protect. OSMRE’s Response In its February 24, 2010, program amendment submission, PADEP asserts that the proposed amendment to the CRDCA does not alter provisions that implement the 1996 Biological Opinion, nor does it affect compliance with any species-specific protective measures developed by the USFWS or Pennsylvania’s mining regulatory program. There are no aspects of the site selection criteria, including this amendment to the criteria that adds to the list of sites deemed ‘‘preferred,’’ that will allow operations to occur outside the scope of the approved program that was the basis for the USFWS’s decision to issue the 1996 Biological Opinion. The mere selection of a site is not the equivalent of an authorization to begin coal refuse disposal, or any other pre- VerDate Sep<11>2014 16:42 Oct 16, 2015 Jkt 238001 disposal activities that are likely to adversely affect Federally listed threatened or endangered species, or result in the ‘‘take’’ of Federally listed or endangered species. As such, this amendment will not alter the conditions that lead to the implementation of the 1996 Biological Opinion. As noted in the findings above, Pennsylvania’s coal refuse disposal site selection process is in addition to SMCRA’s and the State program’s permitting requirements, and, as such, provides an additional layer of environmental regulation of coal refuse disposal operations to that set forth in SMCRA and its implementing regulations. The site selection process is more stringent than SMCRA and the Federal regulations because it encourages coal refuse disposal on already disturbed sites, and also encourages construction of fewer, though larger, coal refuse disposal sites. Neither SMCRA nor the Federal regulations contains these environmentally sound incentives. While our approval of this amendment may render the site selection process less restrictive than before, that process remains more stringent than the environmental control and regulation of surface coal mining and reclamation operations contained in SMCRA. Comment Number 2 (Section 7 Consultation with USFWS). Under section 7 of the Endangered Species Act, OSMRE must engage in consultation with USFWS about the proposed program amendment. PennFuture states that under section 7 of the Endangered Species Act, OSMRE must engage in formal consultation with the USFWS over any action that ‘‘may affect’’ the Indiana bat or any other Federally listed threatened or endangered species, unless, after informal consultation, OSMRE determines, and the USFWS concurs, that the proposed action is not likely to adversely affect any listed species or critical habitat. PennFuture states that in light of the consultation between the two agencies that occurred when the amendment to the CRDCA was submitted to OSMRE as a program amendment, and the fact that the proposed program amendment currently under review could significantly add to the number of preferred sites, OSMRE must initiate consultation with USFWS over the proposed amendment. OSMRE’s Response Our approval of this amendment is subject to the same restrictions contained in our April 22, 1998, approval of an amendment to the CRDCA. Namely, with respect to PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 preferred sites, the State will not approve (via the site selection process) or permit (via requirements in chapters 86 or 90) a site that is known or likely to contain Federally listed threatened or endangered species unless the State demonstrates, and the USFWS concurs, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the ‘‘take’’ of Federally listed threatened or endangered species in violation of section 9 of the Endangered Species Act. See 63 FR 19805. Further, the presence of Federally listed threatened or endangered species on a preferred site would still require Pennsylvania to conclude, and the USFWS to concur, prior to the commencement of surface mining activity, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the taking of such species. 25 Pa. Code 90.202(e)(7). As confirmed by PADEP in the submission, the 1996 Biological Opinion, and any speciesspecific protective measures required by the USFWS would apply to all permits issued under this new category of preferred sites, thereby providing the required protection of Federally listed endangered and threatened species. For all of these reasons, we have determined that additional section 7 consultation for this amendment is not warranted. Federal Agency Comments Under Federal regulations at 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 (Administrative Record No. PA 837.111). The Mine Safety and Health Administration (MSHA), District 1, in a letter dated March 31, 2010, (Administrative Record No. PA 837.116), responded that it does not have any comments or concerns with this request. 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.). The revision that Pennsylvania proposes to make in this amendment does not pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. E:\FR\FM\19OCR1.SGM 19OCR1 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations V. OSMRE’s Decision Based on the above findings, we approve the amendment Pennsylvania sent to us on February 24, 2010, pertaining to Pennsylvania’s CRDCA. However, our approval is with the understanding that, with respect to preferred sites, the State will not approve a site (via the site selection process) or permit (via requirements in chapters 86 or 90) a site that is known or likely to contain Federally listed threatened or endangered species, unless the State concludes, and the USFWS concurs, that the proposed activity is not likely to adversely affect Federally listed threatened or endangered species or result in the ‘‘take’’ of Federally listed or endangered species in violation of section 9 of the Endangered Species Act. 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. VI. Procedural Determinations 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 that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands. Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget under Executive Order 12866 (Regulatory Planning and Review). 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 allowable 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 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 VerDate Sep<11>2014 16:42 Oct 16, 2015 Jkt 238001 Executive Order 13175—Consultation and Coordination With Indian Tribal Government 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 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) et seq.). PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 63129 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 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 data and assumptions for the 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, geographic regions, or 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 fact that the State submittal, which is the subject of this rule, is based upon 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 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 fact that the State submittal, which is the subject of this rule, is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. E:\FR\FM\19OCR1.SGM 19OCR1 63130 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Rules and Regulations List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: September 29, 2015. Thomas D. Shope, Regional Director, Appalachian Region. PART 938—PENNSYLVANIA § 938.15 Approval of Pennsylvania regulatory program amendments. 1. The authority citation for part 938 continues to read as follows: * ■ Date of final publication BILLING CODE 4310–05–P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA–2015–0001: Internal Agency Docket No. FEMA–8405] Suspension of Community Eligibility Federal Emergency Management Agency, DHS. ACTION: Final rule. AGENCY: asabaliauskas on DSK5VPTVN1PROD with FRONTMATTER If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Bret Gates, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4133. SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register. In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2015–26477 Filed 10–16–15; 8:45 am] This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA’s Community Status Book (CSB). The CSB is available at https:// www.fema.gov/fema/csb.shtm. DATES: The effective date of each community’s scheduled suspension is the third date (‘‘Susp.’’) listed in the third column of the following tables. Jkt 238001 * 2. Section 938.15 is amended in the table by adding a new entry in chronological order by ‘‘Date of Final Publication’’ to read as follows: * * * * * February 24, 2010 ....................................................................................................................................... 16:42 Oct 16, 2015 * ■ Original amendment submission date VerDate Sep<11>2014 * Authority: 30 U.S.C. 1201 et seq. For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below: SUMMARY: * PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 * October 19, 2015 Citation/description * 52 P.S. 30.54a(a)(6) The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA’s initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified. Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared. Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance E:\FR\FM\19OCR1.SGM 19OCR1

Agencies

[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63125-63130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26477]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-154-FOR; Docket ID: OSM-2010-0002; S1D1S SS08011000
SX064A000 167S180110 S2D2S SS08011000 SX064A000 16XS501520]

Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

SUMMARY: We are approving an amendment to the Pennsylvania regulatory
program (the ``Pennsylvania program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). The amendment that we
are approving involves a statutory amendment to Pennsylvania's Coal
Refuse Disposal Control Act (CRDCA). The amendment adds another
category of sites considered as preferred when selecting a location for
the placement of coal refuse.

DATES: Effective Date: This rule is effective October 19, 2015.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field
Division, Office of Surface Mining Reclamation and Enforcement,
Telephone: (412) 937-2827, email: bowens@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description and 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, ``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.'' 30 U.S.C. 1253(a)(1) and (7).
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, (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. We are providing the following background
information as it is referenced in our findings and/or response to
comments.

Background: Pennsylvania's Coal Refuse Disposal Control Act (CRDCA)

CRDCA and Preferred Sites: Section 4.1(a) of the CRDCA, 52 P.S.
30.54a(a) provides site selection criteria for determining where to
place coal refuse following mining activities. The Act provides for
coal refuse to be disposed on a ``preferred site'' unless it can be
demonstrated to the Pennsylvania Department of Environmental Protection
(PADEP) that another site is more suitable based upon engineering,
geology, economics, transportation systems, and social factors, and is
not adverse to the public interest.
Pennsylvania provided various justifications for the inclusion of
such provisions: It limits sites eligible to receive coal refuse
placement by prohibiting placement in certain environmentally sensitive
areas; it encourages disposal of coal refuse on

[[Page 63126]]

areas previously affected by coal mining; and it is better to have a
few large refuse disposal areas than numerous small coal refuse
disposal sites. The CRDCA provided that areas that have been previously
affected by mining activities within a specific area of the source mine
are preferred for coal refuse disposal unless the applicant
demonstrates that another site is more suitable based on site-specific
conditions.
Pennsylvania had defined a preferred site as one of the following:
(1) A watershed polluted by acid mine drainage; (2) a watershed
containing an unreclaimed surface mine, but which has no mining
discharge; (3) a watershed containing an unreclaimed surface mine with
discharges that could be improved by the proposed coal refuse disposal
operation; (4) unreclaimed coal refuse piles that could be improved by
the proposed coal refuse disposal operation; and (5) other unreclaimed
areas previously affected by mining activities. Section 4.1(a), 52 P.S.
30.54a(a) of CRDCA.
Permitting Pennsylvania Coal Refuse Disposal Sites: The CRDCA at
section 4.1 and the regulations provide a two-step process for the
permitting of coal refuse disposal sites. The first step is a pre-
application site selection process intended to steer applicants to
areas previously disturbed by mining. In the absence of previously
disturbed sites, the site selection process requires an evaluation of
nearby candidate sites with the goal of choosing the site that results
in minimal adverse impacts. Following Pennsylvania's approval of the
applicant's site selection, the applicant proceeds to the second step,
which involves preparing and submitting a permit application for the
selected site. Pennsylvania's regulations, at 25 Pa. Code 90.5, outline
the need to conduct the mandatory site selection step prior to applying
for a permit for coal refuse disposal activities, and 25 Pa. Code 90.3
and 90.11 through 90.50 outline the coal refuse disposal permitting
requirements.
Pennsylvania's Coal Refuse Disposal Program Guidance [Protection of
Endangered Species]: The Federal regulations at 30 CFR 816/817.97,
concerning the protection of fish and wildlife and related values,
require the minimization of disturbance and adverse impacts and
enhancement where practicable, and consultations with State and Federal
fish and wildlife resources agencies. See Other Background Information
(Endangered Species for additional information). Pennsylvania's Coal
Refuse Disposal Program Guidance (CRDPG), effective February 23, 1998,
was intended to further clarify what PADEP stated in a March 8, 1996,
letter to the Environmental Protection Agency concerning the
implementation of section 4.1(b) of the CRDCA. The CRDPG specifically
clarifies the intended implementation of section 4.1(b) related to
threatened or endangered species. Pennsylvania's policy concerning the
implementation of section 4.1(b) is as follows:
With respect to preferred sites, Pennsylvania's regulations provide
that Pennsylvania will not approve (via the site selection process, See
25 Pa. Code Sec. 90.202(e)(7)) or permit (via the permitting process)
a site that is known or likely to contain Federally listed threatened
or endangered species, unless Pennsylvania concludes and the United
States Fish and Wildlife Service (USFWS) concurs that the proposed
activity is not likely to adversely affect Federally listed threatened
or endangered species or result in the ``take'' of Federally listed
threatened or endangered species in violation of section 9 of the
Endangered Species Act.
OSMRE Approval of CRDCA Section 4.1: We approved section 4.1 of the
CRDCA (section noted above), Site Selection, on April 22, 1998, finding
that while there are no direct Federal counterparts to the statutory
language, the establishment of criteria to be used for selecting sites
for coal refuse disposal is not inconsistent with SMCRA. See 30 U.S.C.
1202(d). Pennsylvania's rationale for encouraging coal mining
activities that will result in the improvement of previously mined
areas with preexisting pollutional discharges is reasonable and not
inconsistent with SMCRA at section 102, concerning the purposes of
SMCRA. See 63 FR 19802.

II. Description and Submission of the Amendment

By letter dated February 24, 2010 (Administrative Record No. PA
837.111), Pennsylvania sent us an amendment to its program under SMCRA
(30 U.S.C. 1201 et seq.). Pennsylvania submitted the amendment to
include changes made at its own initiative. The changes involve a
recent statutory amendment to Pennsylvania's CRDCA, 52 P.S., Section
30.51 et seq.
With this amendment, Pennsylvania proposed a revision adding
another category of sites to the list of ``preferred sites'' currently
found in section 4.1(a). The proposed addition (subsection 4.1(a)(6))
would designate an ``area adjacent to or an expansion of an existing
coal refuse disposal site'' as a preferred site.
In its submission, Pennsylvania indicates this amendment should be
approved as consistent with Federal requirements for the following
reasons:
(1) Counterpart Federal Regulations: There is no counterpart to
section 4.1 of the CRDCA contained either in SMCRA or in OSMRE's
regulations implementing Federal SMCRA;
(2) Coal Refuse Disposal Control Act: The amendment is consistent
with the ``findings and declaration of policy'' in section 1 of the
CRDCA, which states that: The accumulation and storage of coal refuse
material can cause a condition which fails to comply with the
established rules, regulations, or quality standards adopted to avoid
air or water pollution and can create a danger to persons, property, or
public roads or highways, either by reason of shifting or sliding, or
by exposing persons walking onto the refuse to the danger of being
burned. In order to minimize the exposure to these conditions and
dangers, it is better to have a few large coal refuse disposal sites as
opposed to numerous small coal refuse disposal sites. 52 P.S. 30.51(1);
(3) Pennsylvania Regulations--Chapter 86: All coal refuse disposal
permit applications must comply with chapter 86 (regulations that apply
to all coal mining activities); thus, permitting requirements remain
unchanged by this statutory amendment. See 25 Pa. Code chapter 86;
(4) Pennsylvania Regulations--Chapter 90: All coal refuse disposal
permit applications must comply with chapter 90 (regulations that apply
to coal refuse disposal activities); the site-selection process
established by the CRDCA is in addition to these requirements. See 25
Pa. Code chapter 90; and
(5) Species-specific Protective Measures: All coal refuse disposal
permit applications must comply with any applicable species-specific
protective measures developed by the USFWS and Pennsylvania's mining
regulatory program to minimize anticipated incidental take of
threatened or endangered species; thus, species-specific protective
measures remain unaffected by the amendment.

III. OSMRE's Findings

For the reasons set forth below, we are approving the amendment
request under SMCRA at 30 U.S.C. 1253, and the Federal regulations at
30 CFR 732.15 and 732.17.
Federal Counterparts: Five categories of preferred sites in section
4.1(a) were approved by OSMRE on April 22, 1998. See 63 FR 19802. As we
stated in that notice, there was no direct Federal

[[Page 63127]]

counterpart to the proposed State language. We further noted that the
establishment of criteria to be used for selecting sites for coal
refuse disposal is not itself inconsistent with the intent of SMCRA.
The Federal regulations do not include specific criteria for
establishing coal refuse disposal areas. Allowing refuse disposal on
areas adjacent to or an expansion of an existing coal refuse disposal
site, provided that all other environmental and safety requirements are
met, is not inconsistent with section 102(d) of SMCRA, 30 U.S.C.
1202(d), which requires surface coal mining operations to be conducted
so as to protect the environment. That same rationale applies to our
approval of the addition of the sixth category.
Consistent with CRDCA Policy: We note that the five preferred site
categories previously identified in the CRDCA involve watershed areas
previously affected by coal mining; other unreclaimed areas previously
affected by mining activities; and unreclaimed coal refuse disposal
sites that could be improved by the proposed coal refuse disposal
operation. While the additional criterion that is the subject of this
amendment would allow a previously undisturbed site to be deemed
``preferred,'' we note that the addition of ``an area adjacent to or an
expansion of an existing coal refuse disposal site'' to the categories
of ``preferred'' sites is consistent with the CRDCA policy as it would
expand an already existing coal refuse disposal site, rather than
create a new one. Also, adding this category would minimize the need to
increase the number of coal refuse disposal sites.
Pennsylvania Regulations: As mentioned above, preferred sites are
subject to all the permitting requirements established to ensure
environmental protection. Once the selection of a site has been
approved, an applicant must submit a site development plan that meets
the informational requirements, permitting requirements, and
performance standards in chapter 90, and also meets the requirements of
chapter 86. The permitting regulations at chapter 86.31(c)(4) require
Pennsylvania to notify Federal, State, and local government agencies
with jurisdiction over, or an interest in, the area of the proposed
activities, including, but not limited to, general governmental
entities and fish and wildlife and historic preservation agencies, upon
receipt of an application for a mining permit. The regulations at 25
Pa. Code 90.202(e)(7) regarding site selection, provide that at
preferred sites known to contain Federally listed threatened or
endangered species, approval will be granted only when the Department
concludes, and the USFWS concurs, that the proposed activity is not
likely to adversely affect Federally listed threatened or endangered
species or result in the take of Federally listed threatened or
endangered species in violation of section 9 of the Endangered Species
Act of 1973, 16 U.S.C. 1538.
Pennsylvania Technical Guidance Document No. 563-2113-660, Coal
Refuse Site Selection, further explains how chapter 90.202(e)(7) will
be administered by PADEP. In the Background section on page 1, the
guidance states that the ``District Mining Office will encourage
meetings involving the applicant, the Pa. Fish and Boat Commission, the
Pa. Game Commission and the U.S. Fish and Wildlife Service at key
points in the review process, including: Prior to the site selection
process to discuss the procedures to be used; before defining the
search area; before selecting the final site; and before developing a
mitigation plan. The District Mining Office will also solicit input
from the Pennsylvania office of the U.S. Fish and Wildlife Service, the
U.S. EPA and the U.S. Army Corps of Engineers during the site selection
process and the permit application review process.''
In addition, Pennsylvania asserts that compliance with any
applicable species-specific protective measures developed by the USFWS
and Pennsylvania's mining regulatory program to minimize anticipated
incidental take of threatened or endangered species remains unaffected
by this program amendment.
Conclusion: Section 503(a) of SMCRA provides that state regulatory
program laws must be in accordance with the requirements of SMCRA, and
the state regulatory program regulations must be consistent with the
regulations issued pursuant to SMCRA. The term ``in accordance with''
is defined at 30 CFR 730.5 as ``must be no less stringent than, meet
the minimum requirements of and include all applicable provisions of
[SMCRA].'' Section 505(b) of SMCRA, 30 U.S.C. 1255(b), further provides
that any state program provision which provides for more stringent land
use and environmental controls and regulations shall not be construed
to be inconsistent with SMCRA.
There are no direct Federal counterparts to the new proposed site
selection criterion. However, by providing this criterion, and by
prohibiting, generally, coal refuse disposal operations on non-
preferred sites, Pennsylvania imposes a more stringent environmental
control of coal refuse disposal operations than is provided in either
SMCRA or its implementing regulations. Moreover, Pennsylvania will
continue to apply the Pennsylvania counterparts to the Federal
permitting and performance standard requirements. Accordingly, for the
reasons set forth above, OSMRE finds that Pennsylvania's amendment is
not inconsistent with the provisions of SMCRA. We are, therefore,
approving this amendment.

IV. Summary and Disposition of Comments

Public Comments

In the June 21, 2010, Federal Register notice announcing our
receipt of this amendment, we asked for public comments (75 FR 34962).
No requests for public meetings were received. We received public
comments from one organization, Citizens for Pennsylvania's Future
(PennFuture) on July 21, 2010, (Administrative Record No. 837.118),
which are discussed below.
Comment Number 1 (Preparation Activities). PennFuture states that
OSMRE may not approve a program amendment that would reduce the
protection of Federally listed threatened and endangered species unless
and until Pennsylvania amends its regulatory program under SMCRA to
require that all site preparation activities, including timbering, be
authorized in advance by the issuance of a mining permit. PennFuture
provided a summary of a 2010 event whereby timbering activities were
undertaken by an operator without a coal mining permit (pre-permit
timbering activities). PennFuture had requested that OSMRE undertake a
review of this situation. PennFuture asserted that PADEP's response to
OSMRE's inquiry regarding this event (stating that timbering is not a
mining activity and, therefore, not subject to permit requirements,
etc.) is evidence that a programmatic deficiency needs to be corrected.
PennFuture states that OSMRE must limit its approval of the amendment
so that, until the programmatic deficiency is corrected, the absolute
prohibition in section 4.1(b) of the CRDCA, 52 P.S. 30.54a(b) must
apply to all sites, whether preferred or non-preferred, that are
``known to contain Federally listed threatened or endangered plants or
animals.'' The ``absolute prohibition'' PennFuture refers to prohibits
coal refuse disposal on sites known to contain Federal endangered or
threatened animals or plants or State threatened or endangered animals,
unless the site is designated a preferred site. PennFuture is asking
OSMRE to

[[Page 63128]]

require Pennsylvania to also apply the prohibition to preferred sites
until the timbering issue is resolved.
PennFuture's comments address Pennsylvania's assertion in the
program amendment that compliance with any applicable species-specific
protective measures developed by the USFWS and Pennsylvania's mining
regulatory program to minimize anticipated incidental take of
threatened or endangered species remains unaffected by this program
amendment. PennFuture's comments also address Pennsylvania's assertion
in the program amendment that all coal refuse disposal permit
applicants must implement the measures required to implement the 1996
Biological Opinion.
PennFuture refutes these assertions by referencing Pennsylvania's
actions regarding pre-permit timbering activities undertaken by the
mining company, which the USFWS found to be beyond the scope of the
1996 Biological Opinion because it occurred without a SMCRA permit.
PennFuture asserts that the reason PADEP's implementation of the 1996
Biological Opinion falls short is its interpretation that timbering is
not a mining activity, even if it occurs on a site for which a mining
permit application is pending. Under PADEP's interpretation of the
State program, timbering is outside the scope of regulated mining
activities that must be authorized in advance by the issuance of a
SMCRA-based mining permit. PennFuture further comments that continuing
to give effect to this interpretation would mean that the 1996
Biological Opinion would be inapplicable to the activity (timbering)
presenting the greatest threat to a threatened and endangered species,
the Indiana Bat, which the Biological Opinion is intended to protect.

OSMRE's Response

In its February 24, 2010, program amendment submission, PADEP
asserts that the proposed amendment to the CRDCA does not alter
provisions that implement the 1996 Biological Opinion, nor does it
affect compliance with any species-specific protective measures
developed by the USFWS or Pennsylvania's mining regulatory program.
There are no aspects of the site selection criteria, including this
amendment to the criteria that adds to the list of sites deemed
``preferred,'' that will allow operations to occur outside the scope of
the approved program that was the basis for the USFWS's decision to
issue the 1996 Biological Opinion. The mere selection of a site is not
the equivalent of an authorization to begin coal refuse disposal, or
any other pre-disposal activities that are likely to adversely affect
Federally listed threatened or endangered species, or result in the
``take'' of Federally listed or endangered species. As such, this
amendment will not alter the conditions that lead to the implementation
of the 1996 Biological Opinion.
As noted in the findings above, Pennsylvania's coal refuse disposal
site selection process is in addition to SMCRA's and the State
program's permitting requirements, and, as such, provides an additional
layer of environmental regulation of coal refuse disposal operations to
that set forth in SMCRA and its implementing regulations. The site
selection process is more stringent than SMCRA and the Federal
regulations because it encourages coal refuse disposal on already
disturbed sites, and also encourages construction of fewer, though
larger, coal refuse disposal sites. Neither SMCRA nor the Federal
regulations contains these environmentally sound incentives. While our
approval of this amendment may render the site selection process less
restrictive than before, that process remains more stringent than the
environmental control and regulation of surface coal mining and
reclamation operations contained in SMCRA.
Comment Number 2 (Section 7 Consultation with USFWS). Under section
7 of the Endangered Species Act, OSMRE must engage in consultation with
USFWS about the proposed program amendment.
PennFuture states that under section 7 of the Endangered Species
Act, OSMRE must engage in formal consultation with the USFWS over any
action that ``may affect'' the Indiana bat or any other Federally
listed threatened or endangered species, unless, after informal
consultation, OSMRE determines, and the USFWS concurs, that the
proposed action is not likely to adversely affect any listed species or
critical habitat. PennFuture states that in light of the consultation
between the two agencies that occurred when the amendment to the CRDCA
was submitted to OSMRE as a program amendment, and the fact that the
proposed program amendment currently under review could significantly
add to the number of preferred sites, OSMRE must initiate consultation
with USFWS over the proposed amendment.

OSMRE's Response

Our approval of this amendment is subject to the same restrictions
contained in our April 22, 1998, approval of an amendment to the CRDCA.
Namely, with respect to preferred sites, the State will not approve
(via the site selection process) or permit (via requirements in
chapters 86 or 90) a site that is known or likely to contain Federally
listed threatened or endangered species unless the State demonstrates,
and the USFWS concurs, that the proposed activity is not likely to
adversely affect Federally listed threatened or endangered species or
result in the ``take'' of Federally listed threatened or endangered
species in violation of section 9 of the Endangered Species Act. See 63
FR 19805. Further, the presence of Federally listed threatened or
endangered species on a preferred site would still require Pennsylvania
to conclude, and the USFWS to concur, prior to the commencement of
surface mining activity, that the proposed activity is not likely to
adversely affect Federally listed threatened or endangered species or
result in the taking of such species. 25 Pa. Code 90.202(e)(7). As
confirmed by PADEP in the submission, the 1996 Biological Opinion, and
any species-specific protective measures required by the USFWS would
apply to all permits issued under this new category of preferred sites,
thereby providing the required protection of Federally listed
endangered and threatened species. For all of these reasons, we have
determined that additional section 7 consultation for this amendment is
not warranted.

Federal Agency Comments

Under Federal regulations at 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 (Administrative Record No. PA 837.111). The Mine
Safety and Health Administration (MSHA), District 1, in a letter dated
March 31, 2010, (Administrative Record No. PA 837.116), responded that
it does not have any comments or concerns with this request.

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.). The revision that
Pennsylvania proposes to make in this amendment does not pertain to air
or water quality standards. Therefore, we did not ask EPA to concur on
the amendment.

[[Page 63129]]

V. OSMRE's Decision

Based on the above findings, we approve the amendment Pennsylvania
sent to us on February 24, 2010, pertaining to Pennsylvania's CRDCA.
However, our approval is with the understanding that, with respect to
preferred sites, the State will not approve a site (via the site
selection process) or permit (via requirements in chapters 86 or 90) a
site that is known or likely to contain Federally listed threatened or
endangered species, unless the State concludes, and the USFWS concurs,
that the proposed activity is not likely to adversely affect Federally
listed threatened or endangered species or result in the ``take'' of
Federally listed or endangered species in violation of section 9 of the
Endangered Species Act.

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
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 (Regulatory Planning and Review).

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 allowable 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 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 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
Government

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 program involving
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

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) et seq.).

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
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 data and assumptions for
the 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, geographic regions, or 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 fact
that the State submittal, which is the subject of this rule, is based
upon 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 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 fact that the State
submittal, which is the subject of this rule, is based upon Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation did not impose an unfunded mandate.

[[Page 63130]]

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 29, 2015.
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 in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:

Sec. 938.15 Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------

* * * * * * *
February 24, 2010............................... October 19, 52 P.S. 30.54a(a)(6)
2015
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-26477 Filed 10-16-15; 8:45 am]
BILLING CODE 4310-05-P

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