[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)]
[Rules and Regulations]
[Pages 55746-55751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23118]
[[Page 55746]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[SATS No. PA-159-FOR; Docket No. OSM-2010-0017; S1D1S SS08011000
SX064A000 156S180110; S2D2S SS08011000 SX064A000 15XS501520]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSMRE) is removing 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). OSMRE has determined that
the information submitted by Pennsylvania satisfies a previously
required amendment regarding bonding in Pennsylvania. Therefore, OSMRE
is removing the previously required amendment from the Pennsylvania
program as Pennsylvania has demonstrated that its program is being
administered in a manner consistent with SMCRA and the corresponding
Federal regulations.
DATES: Effective September 17, 2015.
FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field
Division; Telephone: (412) 937-2827, Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Submission
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 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, effective July 31, 1982. You can find
background information on the Pennsylvania program, including the
Secretary's findings, the disposition of comments, and the 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 Submission
OSMRE published a final rule in the August 10, 2010, Federal
Register (75 FR 48526), herein referred to as the 2010 final rule,
requiring Pennsylvania ``to ensure that its program provides suitable,
enforceable funding mechanisms that are sufficient to guarantee
coverage of the full cost of land reclamation at all sites originally
permitted and bonded under the [alternative bonding system (ABS)].''
This was codified in the Federal regulations at 30 CFR 938.16(h). OSMRE
approved several changes in the 2010 final rule. However, OSMRE
concluded that two sites, originally permitted and bonded under the
ABS, held insufficient bonds after the conversion to a full cost
bonding system to guarantee that the land would be reclaimed in the
event forfeiture occurred.
The two sites at issue are anthracite operations that were
permitted by Lehigh Coal & Navigation (LCN) and Coal Contractors Inc.
(CCI). Before the 2010 final rule was published, Pennsylvania had
indicated that these two sites were bonded in an amount that was less
than the full cost needed to complete reclamation in the event that
forfeiture occurred. Although Pennsylvania contended that these sites
were not reclamation liabilities, as the bond deficiency at both sites
was being addressed through other means, OSMRE determined that
Pennsylvania's approach to resolving this issue did not provide the
same level of financial assurance as that guaranteed by posting a full
cost bond. As a result, OSMRE revised 30 CFR 938.16(h), and required
that Pennsylvania demonstrate that sufficient funds existed to ensure
the land reclamation would be completed at the LCN and CCI sites.
In response to OSMRE's 2010 final rule, Pennsylvania submitted
information which it believed demonstrated that it is able to guarantee
sufficient funds to cover the full reclamation costs at the LCN and CCI
sites. After providing three submissions, Pennsylvania requests the
removal of the required amendment. Each submission is discussed below.
Submission No. 1: By letter dated October 1, 2010 (Administrative
Record No. PA 802.72), Pennsylvania sent us a response as required by
30 CFR 938.16(h). We announced receipt of this submission in the
February 7, 2011, Federal Register (76 FR 6587). In the same document,
we opened the public comment period and provided an opportunity for a
public hearing or meeting on the adequacy of the submission. OSMRE
received comments, but did not hold a public hearing or meeting because
neither was requested. The public comment period ended on March 9,
2011.
In the first submission, Pennsylvania provided information that it
believed demonstrated that available funds were more than sufficient to
guarantee coverage of the full cost of land reclamation at the two
sites. The information submitted to support Pennsylvania's contention
included a demonstration of available funding, the Coal Contractors
2009 Annual Bond Review, LCN's annual bond review, updated estimates
for the ABS bond forfeiture discharge treatment sites, and updated land
reclamation estimates. Based on this information, Pennsylvania
requested the removal of the previously required amendment.
At the time of this submission, the following conditions existed:
LCN Land Reclamation Estimate: $11,230,429
Current Bonds Available: $7,759,000
Additional Reclamation Funding Needed: $3,471,429
CCI Land Reclamation Estimate: $2,863,982
Current Bonds Available: $804,625
Additional Reclamation Funding Needed: $2,059,357
The submission indicated a balance of $19,496,955 in the Surface
Mining Conservation and Reclamation Fund (SMCR Fund) that was available
for ABS land and discharge treatment for ABS legacy sites. Projected
expenses at the time for ABS land reclamation and discharge treatment
(design and construction) was $12,877,636, leaving a balance of
$6,619,319 available to address the reclamation funding needs of
$5,530,786 for the LCN and CCI sites, if forfeited.
Pennsylvania also stated that in the unlikely event that both of
these sites would require expenditure of funds for land reclamation,
then at least some of the cost for the design and construction of the
ABS bond forfeiture discharge treatment facilities would be paid for
using the Reclamation Fee Operation and Maintenance account (RFO&M
account). There was approximately $1
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million of immediately available funds in this account that could be
used for this purpose exclusively. Pennsylvania believed that this
demonstration of available funding warranted removal of the required
amendment.
Submission No. 2: On June 13, 2011 (Administrative Record No. PA
802.80), we received additional information from Pennsylvania regarding
recent developments with the LCN site. The permit had been transferred
to BET Associates IV, LLC (BET), resulting in the posting of a full
cost bond in an amount to cover the land reclamation obligation. We
announced this submission in the October 17, 2011, Federal Register (76
FR 64048). In the same document, we opened the public comment period
and provided an opportunity for a public hearing or meeting on the
adequacy of the submission. OSMRE received comments, but did not hold a
public hearing or meeting because neither was requested. The public
comment period ended on November 1, 2011.
Included in the second submission was the mining permit, Part C
(Authorization to Mine), and the calculation sheet documenting the bond
amount. At the time of this submission, the following conditions
existed:
LCN Land Reclamation Estimate: $10,523,000
Current Bonds Available: $10,523,000
Additional Reclamation Funding Needed: $0
Submission No. 3: On November 6, 2012, we received additional
information from Pennsylvania regarding recent developments involving
the CCI permit bonding status (Administrative Record No. PA 802.85). We
announced receipt of this submission in the February 19, 2013, Federal
Register (78 FR 11617). In the same document, we opened the public
comment period and provided an opportunity for a public hearing or
meeting on the adequacy of the submission. OSMRE received comments, but
did not hold a public hearing or meeting because neither was requested.
The public comment period ended on March 6, 2013.
The third submission included a letter to the operator regarding
the annual bond review, along with the supporting documentation
supporting the review, which included the annual bond calculation
summary.
At the time of this submission, the following conditions existed:
CCI Land Reclamation Estimate: $403,691
Current Bonds Available: $804,625
Additional Reclamation Funding Needed: $0
After three submissions, Pennsylvania believed it had provided
sufficient information as required by OSMRE to satisfy the 30 CFR
938.16(h) requirements. As a result, Pennsylvania requested that OSMRE
remove the previously required amendment.
III. OSMRE's Findings
Discussed below are our findings concerning this request to remove
a previously required amendment to the Pennsylvania program pursuant to
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. After
reviewing the information submitted, OSMRE is removing the previously
required amendment that was codified at 30 CFR 938.16(h).
OSMRE finds that Pennsylvania demonstrated through its bonding
calculations and reclamation estimates that sufficient funds are
available to guarantee coverage of the reclamation needs at the LCN and
CCI sites, in satisfaction of the previously required amendment.
Therefore, we are approving this request to remove paragraph (h) of 30
CFR 938.16.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on each of the three submissions. No
requests for public meetings were received. On March 5, 2013, we
received comments from a group of citizen organizations collectively
known as ``the Federation,'' which represents six organizations: (1)
Citizens for Pennsylvania's Future (PennFUTURE), (2) Pennsylvania
Federation of Sportsmen's Clubs, Inc., (3) Sierra Club, (4)
Pennsylvania Council of Trout Unlimited, (5) Center for Coalfield
Justice, and (6) Mountain Watershed Association.
PennFUTURE serves as legal counsel for these organizations with
respect to alleged inadequacies of Pennsylvania's bonding program and
continues to serve in that capacity by responding to related matters,
such as this program amendment. PennFUTURE provided comments on
Pennsylvania's initial submission, which we responded to in the 2010
final rule (Administrative Record No. PA 802.43).
In addition to the March 5, 2013, comments (Administrative Record
No. PA 802.88) on the latest submission from Pennsylvania, PennFUTURE
also submitted comments on March 9, 2011 (Administrative Record No. PA
802.79), regarding the initial October 1, 2010, submission and on
November 1, 2011 (Administrative Record No. PA 802.83), regarding
Pennsylvania's first supplemental submission dated June 13, 2011
(Administrative Record No. PA 802.80), concerning the LCN site.
PennFUTURE originally contended that the program amendment
submission was deficient for various reasons. As noted in our findings,
however, subsequent events occurred after the original submission,
which affected the financial solvency and prior bond deficiency at the
two sites. Since the comments submitted by PennFUTURE have largely
restated its earlier comments, OSMRE is addressing those comments still
applicable. We are addressing the March 5, 2013, comments first and
they are as follows:
A. The CCI Site
PennFUTURE submitted previous comments regarding the adequacy of
this site. However, subsequent to the receipt of those comments,
PennFUTURE now agrees that, as a result of the reclamation work
performed at the CCI site since Submission No. 1, the site finally
appears to have an enforceable, full cost reclamation guarantee in
place considering the current bond amount and the estimated cost to
complete reclamation of the site. Since the most recent bond
calculation summary submitted (revised summary for 2011) was prepared,
PennFUTURE recommends that OSMRE review CCI's annual bond calculation
summary for 2012 to confirm that the site is adequately bonded.
OSMRE's Response: On August 20, 2013, Pennsylvania advised OSMRE
that the CCI site had been backfilled and graded, with five acres to be
seeded in the fall of 2013. There has been no corresponding bond
reduction. The amount remains $804,625, which is sufficient to complete
reclamation (Administrative Record No. PA 802.65).
B. The LCN Site/Perpetual Post-Mining Discharge and Land Reclamation
Bond
According to PennFUTURE, Pennsylvania has not demonstrated that an
enforceable, full cost land reclamation guarantee exists for the LCN
site because there is no fully funded guarantee of perpetual treatment
for the LCN site's post-mining discharge. PennFUTURE asserts that the
perpetual post-mining discharge from the LCN site puts the adequacy of
the treatment trust for that discharge directly at issue in this
program amendment proceeding. As a result, PennFUTURE contends that
OSMRE must decide a number of issues concerning Pennsylvania's
implementation of treatment trusts raised in PennFUTURE's February 27,
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2009, comments on Pennsylvania's August 1, 2008, proposed ABS program
amendment (Administrative Record No. PA 802.60).
PennFUTURE states that $8,423,000 is needed for land reclamation
only and does not apply to discharges. The perpetual post-mining
discharge from the LCN site puts the adequacy of the treatment trust
for that discharge directly at issue in this proceeding. In order to
demonstrate that the surety reclamation bond for the LCN site fully
guarantees all land reclamation at the site and will not be used to
address mine drainage treatment liability, Pennsylvania must
demonstrate that the treatment trust for the LCN site is both adequate
in amount and fully funded, which it has failed to do as explained
below.
PennFUTURE states that its November 1, 2011, comments on
Pennsylvania's first supplemental program amendment submission included
the May 5, 2011, Post-Mining Treatment Trust Consent Order and
Agreement between Pennsylvania and BET (BET Trust CO&A), which
established a payment schedule for funding a perpetual treatment trust.
PennFUTURE states that its comments showed that Pennsylvania had
failed to demonstrate that the surety bond posted by BET fully
guarantees all outstanding land reclamation at the LCN site because it
had failed to demonstrate that an adequate and fully funded trust is in
place that guarantees perpetual treatment of the post-mining discharge
from the LCN site. PennFUTURE's earlier comment letter concluded:
``Under Pennsylvania's approved regulatory program, surety bonds
cover all varieties of potential reclamation liabilities at a permitted
coal mine. Thus, until a fully funded treatment trust is in place that
fully guarantees perpetual treatment of the post-mining discharge from
the LCN site, the $8,423,000 surety bond posted by BET is stretched too
thin, covering an estimated $8,423,000 in land reclamation liability
plus perhaps an equivalent amount in mine drainage treatment liability.
As a result, the surety bond currently does not provide fully, dollar-
for-dollar coverage of the potential land reclamation liabilities at
the LCN site. [Pennsylvania] therefore has not carried its burden of
demonstrating that the combination of BET's surety bond and the
transferred [Land Reclamation Financial Guarantees (LRFG)] `are
sufficient to guarantee coverage of the full cost of land reclamation'
at the LCN site.''
PennFUTURE states that for any primacy mine with a post-mining
discharge, like the LCN site, the conventional reclamation bond covers
both the outstanding land reclamation obligation and the outstanding
discharge treatment obligation, unless and until the mine operator
posts a treatment trust or other financial guarantee that is both: (1)
Adequate in amount to provide perpetual treatment and (2) fully funded.
It follows that in order to find that the surety bond posted by BET for
the LCN site is unencumbered by any potential mine drainage treatment
liability, and therefore, is adequate to fully guarantee the
outstanding land reclamation liability, OSMRE must find that the
treatment trust for the LCN site is both (1) adequate in amount to
provide perpetual treatment and (2) fully funded. PennFUTURE goes on to
comment about the calculation and assumptions used to estimate the
valuing of trust assets to derive a treatment trust amount that results
in financial solvency. These issues were raised in detail in their 2009
comments on Pennsylvania's initial submission. PennFUTURE further
asserts that the current program amendment presents, concretely for one
specific mine, the issues OSMRE declined to address in the abstract,
for a range of potential future scenarios, in ruling on the ABS program
amendment in the 2010 final rule.
PennFUTURE references several developments relevant to the adequacy
and funding status of the LCN site treatment trust since the submission
of their last comment letter on November 1, 2011. The developments
include the LCN site's pollutant discharge limits and PennFUTURE's
submission of comment letters detailing the reasons why the pollutant
loads and effluent limitations Pennsylvania proposed for relocating
discharge from the LCN site are excessive. PennFUTURE further states
that correcting those errors and reducing the allowable pollutant loads
and applicable effluent limitations will increase the estimated costs
of treating the discharge from the LCN site and thus, the required
amount of the treatment trust. Additionally, PennFUTURE also references
the completion of a 2012 OSMRE report documenting a review of the Al
Hamilton Treatment Trust Fund. While this report is not directly
related to the LCN site, PennFUTURE provides it as an example of
perceived trust inadequacies. This report documents that when the trust
was established in 2003, roughly half of its assets were coal reserves
that now appear to be valueless, leaving the primary portion of the
trust at only a fraction of the value required to provide adequate and
perpetual treatment of the dozens of mine discharges it covers. In
reference to OSMRE's Al Hamilton Trust Fund Report attached in its
letter dated March 5, 2013, PennFUTURE stated that the fractional
funding of the trust has forced Pennsylvania ``to triage and prioritize
the systems needing attention, to spread out the expenditures to reduce
the financial stress,'' leaving some discharges wholly or partially
untreated and others lacking adequate treatment.
PennFUTURE states that the harsh lessons provided by this example
are that something appearing to have great value today may, in fact, be
worthless when needed in the future, and that for a financial mechanism
that is required to provide a rock-solid, perpetual guarantee, only
money in the bank qualifies as money in the bank. In light of this
concern, no discharge treatment trust should be considered fully
funded--that is, to provide the iron-clad reclamation guarantee
required by law--unless the primary portion of the trust consists of
cash or assets that are easily and immediately convertible to cash.
PennFUTURE states that when Pennsylvania enters into a CO&A with a
mine operator establishing a payment schedule for funding a treatment
trust, it typically does not immediately consider the trust fully
funded based on the operator's documented payment obligation. To the
contrary, it is only when the mine operator makes the final payment and
the trustee has the cash in hand that Pennsylvania changes the
designation from ``payment plan'' to ``fully funded''.
According to PennFUTURE, the inability to market the Al Hamilton
Treatment Trust's coal reserves shows that any trust asset that is not
easily and immediately convertible to cash is something like a payment
plan--it may or may not deliver the expected value when the time comes.
Just as a payment plan trust is not considered fully funded until the
last payment is delivered, PennFUTURE states that any trust containing
an asset like coal reserves may not be considered fully funded until
the asset actually delivers its estimated value by being converted to
cash.
OSMRE's Response: Pennsylvania's regulations require adjustment of
the reclamation fee, which is deposited into the RFO&M account, to
cover any increased costs of water treatment for all ABS forfeited
sites in any given year. Pennsylvania's annual adjustments to the
reclamation fee amount will be evaluated by OSMRE through its oversight
authority. In short, the
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regulations create the mandate to fully fund discharge treatment costs
for all existing and potential ABS legacy sites in perpetuity.
Therefore, should the LCN site-specific bond be forfeited, the entire
amount of that bond will be used for land reclamation and treatment
costs and will be covered by the treatment trust and supplemented, if
necessary, by the adjustable reclamation fee. As noted above,
sufficient funds exist in the site-specific bond to cover land
reclamation costs. In an email dated June 18, 2013, Pennsylvania, at
our request, provided the 2012 annual bond calculation, which indicated
a reclamation obligation of $10,448,389 as well as a surplus of $74,611
at the LCN site (Administrative Record No. PA 802.89). Pennsylvania has
demonstrated that its program provides suitable, enforceable funding
mechanisms sufficient to guarantee the full cost of land reclamation at
all sites originally permitted and bonded under the ABS, in accordance
with 30 CFR 938.16(h). Therefore, the previously required amendment can
be removed.
C. The LCN Site's Trust Fund Adequacy
PennFUTURE asserts that OSMRE cannot find that the land reclamation
at the LCN site is fully guaranteed unless it also finds that perpetual
treatment of the mine drainage discharge from the LCN site is fully
guaranteed.
PennFUTURE states that in addition to being fully funded, a
treatment trust must be adequate in amount to provide the firm
guarantee of perpetual treatment required by law. Thus, in order to
find that the treatment of the discharge from the LCN site is fully
guaranteed (which, as explained above, is a prerequisite to finding
that the reclamation of the land at the LCN site is fully guaranteed),
OSMRE must determine whether Pennsylvania, in calculating the amount of
the BET/LCN site trust, applied assumptions and methods that yield a
dollar figure that is sufficient to provide the required firm guarantee
of perpetual treatment.
PennFUTURE claims that the first complication is that Pennsylvania
cannot, at this point, accurately project the treatment costs because
it has yet to set the effluent limit targets that such treatment will
be required to meet, much less to approve the installation of the new
treatment system(s) that will be designed to meet them. PennFUTURE
additionally asserts that the BET Trust CO&A estimated the present
discounted value for perpetual operation and maintenance of the Mine's
``New Treatment System(s)'' at $13.8 million a year before Pennsylvania
produced a draft of the National Pollutant Discharge Elimination System
(NPDES) permit revision that would govern the new system's discharge.
However, according to PennFUTURE, the effluent limitations in the final
revision of the NPDES permit must be more stringent than those proposed
in Pennsylvania's draft of the permit.
The second complication, according to PennFUTURE, is that the
requirement that the amount of the trust be sufficient to provide a
firm guarantee of perpetual treatment forces OSMRE to address all of
the issues concerning the inadequacy of Pennsylvania treatment trusts
raised in our coalition's February 27, 2009, comments on the 2008 ABS
program amendment. PennFUTURE claims that OSMRE declined to address
those issues in the abstract across a multitude of potential scenarios
in its 2010 final rule on the ABS program amendment. 75 FR 48526. Now,
however, the abstract has been made concrete and the programmatic
concern has been reduced to a single, specific case. In short,
PennFUTURE believes that the issues are squarely and concretely
presented and OSMRE must decide them in order to rule on the adequacy
of the reclamation guarantee for the LCN site.
PennFUTURE incorporates by reference all earlier comments
concerning the deficiencies of Pennsylvania's trust fund calculations,
along with the many exhibits supporting those comments. Issues
addressed in those earlier comments included trust fund volatility,
trust investment portfolio composition, treatment trust portfolio rates
of return, and the 75-year recapitalization cost calculation.
OSMRE's Response: As we addressed in our response above,
Pennsylvania's regulations require adjustment of the reclamation fee to
fully fund discharge treatment costs for all ABS forfeited sites. In
the event that the LCN site-specific bond is forfeited, the entire bond
amount will be used for land reclamation and treatment costs will be
covered by the treatment trust and supplemented by the adjustable
reclamation fee, if necessary. In an email dated June 18, 2013,
Pennsylvania, at our request, indicated that the 2012 bond calculation
amount for the LCN site is $10,448,389. Further, documentation was
provided that indicated a surplus of $74,611 at the site
(Administrative Record No. PA 802.89). Thus, Pennsylvania has
demonstrated that its program provides suitable, enforceable funding
mechanisms sufficient to guarantee the full cost of land reclamation at
all sites originally permitted and bonded under the ABS, in accordance
with 30 CFR 938.16(h). Therefore, the previously required amendment can
be removed.
As we addressed in our findings above, Pennsylvania's submissions
satisfy the requirements set forth in the previously required amendment
and demonstrate the existence of sufficient funds to guarantee coverage
of the full cost of land reclamation at both the LCN and CCI sites.
Therefore, OSMRE is removing the previously required amendment, at
subsection (h) of 30 CFR 938.16.
Federal Agency Comments
On October 5, 2010, under the 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
802.73). We received a response of no comment from the Mine Safety and
Health Administration on October 18, 2010 (Administrative Record No. PA
802.74). No other comments were received, with the exception noted
below.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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.). None of the revisions that Pennsylvania proposed
to make in this amendment pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment. However, we
received comments from EPA on November 12, 2010, regarding the
submission (Administrative Record No. PA 802.76). EPA concluded that
the submission was limited to land reclamation. EPA, however, mentioned
that well-funded bonding programs are necessary to provide for post-
mining treatment, prevent perpetual post-mining drainage problems, as
well as protect the hydrologic balance and ensure compliance with water
quality standards. In response to EPA's comments, OSMRE agrees that an
adequately funded bonding program is crucial to prevent post-mining
pollutional discharges.
V. OSMRE's Decision
Based on the above findings, we are removing the previously
required amendment at 30 CFR 938.16(h). To implement this decision, we
are amending the Federal regulations, at 30
[[Page 55750]]
CFR part 938, that codify decisions concerning the Pennsylvania
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
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 regulation.
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.
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 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
Governments
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 Federal regulations 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)).
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
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal 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, 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 counterpart
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 counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 22, 2015.
Thomas D. Shope,
Regional Director, Appalachian Region.
Editorial Note: This document was received for publication by the
Office of Federal Register on September 10, 2015.
For the reasons set out in the preamble, 30 CFR part 938 is amended
as follows:
[[Page 55751]]
PART 938--PENNSYLVANIA
0
1. The authority citation for Part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 938.16 [Amended]
0
2. Section 938.16 is amended by removing and reserving paragraph (h).
[FR Doc. 2015-23118 Filed 9-16-15; 8:45 am]
BILLING CODE 4310-05-P