[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Proposed Rules]
[Pages 12920-12923]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5404]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-157-FOR; OSM 2010-0011]


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 removal of required amendment.

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SUMMARY: We are announcing receipt of a request to remove a required 
amendment to the Pennsylvania regulatory program (the ``Pennsylvania 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). In response to a required program amendment 
codified in the Federal regulations, Pennsylvania has submitted 
rationale that it believes supports its position that current program 
provisions are sufficient to render its program no less effective than 
the Federal requirements and, therefore, no amendment is necessary. The 
required amendment pertains to regulatory exemptions for coal 
extraction incidental to the extraction of other minerals.
    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 April 
8, 2011. If requested, we will hold a public hearing on April 4, 2011. 
We will accept requests to speak until 4 p.m., local time on March 24, 
2011.

ADDRESSES: You may submit comments, identified by ``PA-157-FOR; Docket 
ID: OSM-2010-0011'' by either of the following two methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2010-0011. If you would 
like to submit comments through the Federal eRulemaking Portal, go to 
http://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 http://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.
Thomas Callaghan, P.G., 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) 787-5103, E-mail: tcallaghan@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 Request
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

[[Page 12921]]

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 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 Request

    By letter dated August 6, 2010 (Administrative Record Number PA 
892.12), Pennsylvania sent us a response to a program amendment that 
was required by OSMRE in a final rule notice published in the Federal 
Register on November 7, 1997, (62 FR 60177) and codified in the Federal 
Regulations at 30 CFR 938.16(uuu). This required amendment provided 
that Pennsylvania submit an amendment to provide counterparts to the 
Federal regulations at 30 CFR 702.15(d), (e), (f), and 702.17(c)(2), 
and (c)(3). The Federal regulations pertain to (1) conditions of 
exemption and right of inspection and entry; and (2) revocation and 
enforcement. Pennsylvania submits that its regulatory program already 
contains counterparts to the Federal regulations and, therefore, is no 
less effective than the Federal regulations pertaining to incidental 
coal extraction. Pennsylvania requests that we remove the condition 
found at 30 CFR 938.16(uuu) on this basis.
    Pennsylvania is submitting the request that includes three parts: 
(1) Environmental Hearing Board Act (35 P.S. Sections 7511-7516); (2) 
25 Pa Code Chapter 1021; and (3) 25 Pa Code 77.352. In summary, the 
Federal regulations and PADEP rationale are provided as follows:
    Federal Regulations: 30 CFR 702.15, Conditions of Exemption and 
Right of Inspection and Entry, provides with regard to exemptions for 
coal extraction incidental to the extraction of other minerals, 
authorized representatives of the regulatory authority and Secretary 
the right to conduct inspections of operations claiming exemption. The 
representatives have the right of entry to any mining and reclamation 
operations without advance notice or search warrants, access to and 
copies of any relevant records, and to gather physical and photographic 
evidence. A search warrant may be required for entry into a building.
    PADEP Response: OSM's review of 25 Pennsylvania Code (Pa Code) 
Section 86.5 in the 1997 rulemaking did not include a discussion of the 
need for 25 Pa Code Section 86.5 to be revised to add counterparts to 
the Federal regulations at 30 CFR 702.15(d), (e), and (f). Thus, it is 
not clear why OSM considered 25 Pa Code Section 86.5 to be less 
effective than the Federal regulations with respect to the right to 
conduct inspections and right of entry for operations extracting coal 
incidental to surface mining.
    Pennsylvania submits that its regulatory program, upon approval of 
the program amendment incorporating 25 Pa Code Section 77.352, will 
contain counterparts to 30 CFR 702.15(d), (e), and (f), and, therefore, 
is no less effective than the Federal regulations pertaining to 
incidental coal extraction.
    Section 86.5(a) requires that a person who intends to extract coal 
incidental to the extraction of other minerals ``shall do so under the 
provisions of a noncoal surface mining permit issued under Chapter 77 
(relating to noncoal mining) and subject to the conditions described in 
this section.'' A person who seeks to engage in incidental coal 
extraction is required to obtain a noncoal surface mining permit 
pursuant to Pennsylvania's Noncoal Surface Mining Conservation and 
Reclamation Act, 52 P.S. Section 3301 et seq. (NSMCRA) and the 
regulations in 25 Pa Code Chapter 77 which implement NSMCRA. Thus, all 
persons conducting incidental coal extraction under Chapter 86.5 must 
comply with, and are subject to, the provision of NSMCRA and 25 Pa Code 
Chapter 77. Section 3314 of NSMCRA provides: ``The department shall 
have the right to enter and inspect all surface mining operations for 
the purpose of determining conditions of health or safety and for 
compliance with the provisions of this act and all rules and 
regulations promulgated pursuant thereto.'' 52 P.S. Section 3314. 
According to Pennsylvania, this statutory provision and the 
implementing regulations in Chapter 77.352, clearly constitute a 
counterpart to 30 CFR 702.15(d) that is at least no less effective than 
the Federal regulation.
    Sections 702.15(e) and (f) elaborate on the right of authorized 
representatives of the regulatory authority to conduct inspections of 
sites conducting incidental coal extraction. Pennsylvania's noncoal 
mining regulations in 25 Pa Code Chapter 77, (which persons claiming 
exemption under 25 Pa Code Section 86.5 are subject to pursuant to 25 
Pa Code Section 86.5(a)), provide counterparts to the Federal 
regulations at 30 CFR 702.15(d), (e), and (f). Section 77.352(a)(1) 
states that the Department and its agents and employees ``will have 
access to, and require the production of, books and papers, documents, 
and physical evidence pertinent to a matter under investigation.'' 
Further 77.352(a)(2) states that Department representatives have the 
right to ``enter a building, property, premises, or place where noncoal 
mining activities are conducted for the purpose of making an 
investigation or inspection as may be necessary to ascertain the 
compliance or noncompliance by a person with the environmental acts and 
the act and regulations thereunder.'' These provisions in 25 Pa Code 
Chapter 77 provide counterparts to 30 CFR 702.15(d), (e), and (f), and, 
according to Pennsylvania, provide broader authority to Pennsylvania's 
authorized representatives given that they may enter a building at a 
surface mine site for the purposes of inspection or investigation 
without being required to obtain a search warrant. These requirements 
extend to OSM in their role as oversight agent for the primacy coal 
mining program. Pennsylvania therefore submits that its regulatory 
program, upon approval of the program amendment incorporating 25 Pa 
Code 77.352, will contain counterparts to 30 CFR 702.15(d), (e), and 
(f) which are no less effective than the Federal regulations.
    Federal Regulations: 30 CFR 702.17, Revocation and Enforcement, 
provides that the regulatory authority may revoke the exemption, if the 
operator has not established that the activities conducted in the 
mining area qualify for an exemption. An administrative review of a 
decision whether to revoke an exemption may be requested by any 
adversely affected person within 30 days of notification. Lastly, the 
petition for administrative review will not suspend the effect of the 
decision of whether to revoke an exemption.
    PADEP's Response: OSM's required amendment at 30 CFR 938.16(uuu) 
with respect to Pennsylvania counterparts for 30 CFR 702.17(c)(2) and 
(c)(3) also was not discussed in the 1997 rulemaking. More importantly, 
this part of the

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required amendment actually conflicts with OSM's own findings in the 
1997 rulemaking.
    In the 1997 rulemaking, OSM determined that 25 Pa Code Section 
86.5(o) is identical in meaning to 30 CFR 702.17(c)(2); and that 25 Pa 
Code Section 86.5(n) is identical in meaning to 30 CFR 702.17(c)(3). 
See Federal Register (62 FR 60169-70 and Table A). OSM then concluded: 
``Because the above proposed revisions (listed in Table A) are 
identical in meaning to the corresponding Federal regulations, the 
Director finds that Pennsylvania's proposed rules are no less effective 
than the Federal rules.'' Thus, the portion of 30 CFR 938.16(uuu) 
pertaining to counterparts to 30 CFR 702.17(c)(2) and (c)(3) appears to 
be an error and should be rescinded by OSM on that basis alone.
    In any event, Pennsylvania submits that its regulatory program 
already contains counterparts to 30 CFR 702.17(c)(2) and (c)(3). As 
previously recognized by OSM in the 1997 Rulemaking, Pennsylvania has 
regulations which provide for administrative review of Department 
determinations concerning exemption for incidental coal extraction. See 
Federal Register (62 FR 60170). A Department determination to revoke an 
exemption for incidental coal extraction under Chapter 86.5 would 
constitute a final action of the Department, which would be appealable 
to the Environmental Hearing Board. See 35 P.S. 7511-7516 
(Environmental Hearing Board Act); 35 P.S. 7514 (``no action of the 
department adversely affecting a person shall be final as to that 
person until the person has had the opportunity to appeal the action to 
the board''); 25 Pa. Code Chapter 1021 (Environmental Hearing Board 
procedural rules); 25 Pa. Code Chapter 1021.2 (defining ``action'' of 
the department), Chapter 1021.51 (commencement of an appeal). These 
statutory and regulatory sections regarding the right of appeal to the 
Pennsylvania Environmental Hearing Board provide counterparts to 30 CFR 
702.17(c)(2).
    Pennsylvania also has counterparts to 30 CFR 702.17(c)(3). The 
Environmental Hearing Board Act states: ``No appeal shall act as an 
automatic supersedeas.'' 35 P.S. 7514(d). See also 25 Pa. Code Chapter 
1021.61. In the 1997 Rulemaking, OSM stated as follows with respect to 
Chapter 86.5(I)(3): In its letter dated March 28, 1997, Pennsylvania 
stated that appeals to the Environmental Hearing Board (EHB) under the 
provisions of Chapter 21 [now Chapter 1021] do not stay the effect of 
the Department of Environmental Protection's (Department) actions. If 
an appellant wishes to stay the effect of such an action, the appellant 
must petition the EHB which, in turn, must issue a supersedeas. The 
Director finds the proposed Pennsylvania regulation no less effective 
than the Federal regulations, since Pennsylvania law provides, 
generally, that an appeal does not, by itself, suspend the effect of 
the decision appealed from. See Federal Register (62 FR 60170). 
Pennsylvania contends that this same rationale applies to the required 
counterpart to 30 CFR 702.17(c)(3). Pennsylvania law provides, 
generally, that an appeal does not, by itself, suspend the effect of 
the decision appealed from. Therefore, Pennsylvania submits that its 
regulatory program, upon approval of the program amendment 
incorporating, will contain counterparts to 30 CFR 702.17(c)(2) and 
(c)(3), which are no less effective than the Federal regulations.

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 
March 24, 2011. 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

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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: November 24, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2011-5404 Filed 3-8-11; 8:45 am]
BILLING CODE 4310-05-P