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Pennsylvania Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 6, 2007 (Volume 72, Number 24)]
[Proposed Rules]
[Page 5380-5382]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe07-17]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-149-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on a proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the
Pennsylvania regulatory program (the ``Pennsylvania program'') under
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the
Act). Pennsylvania proposes to revise its program to exclude coal
extraction on government-financed construction projects from regulation
under the surface coal mining regulations. The proposed amendment is
intended to revise the Pennsylvania program to be consistent with the
corresponding Federal regulations and to include provisions at its own
initiative.
This document gives the times and locations that the Pennsylvania
program and this amendment 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 March
8, 2007. If requested, we will hold a public hearing on March 5, 2007.
We will accept requests to speak at a hearing until 4 p.m., local time
on February 21, 2007.
ADDRESSES: You may submit comments, identified by ``PA-149-FOR'', by
any of the following methods:
? E-mail: grieger@osmre.gov. Include ``PA-149-FOR'' in the
subject line of the message;
? Mail/Hand Delivery: Mr. George Rieger, Chief, Pittsburgh
Field Division Office of Surface Mining Reclamation and Enforcement 415
Market Street, Room 304, Harrisburg, PA 17101 Telephone: (717) 782-4036.
? Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number ``PA-149-FOR'' for this rulemaking. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see the ``Public Comment Procedures'' section in
this document. You may also request to speak at a public hearing by any
of the methods listed above or by contacting the individual listed
under FOR FURTHER INFORMATION CONTACT.
Docket: You may review copies of the Pennsylvania program, this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document at OSM's Pittsburgh
Field Division Office at the address listed above 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's Harrisburg Office. In addition, you may receive a copy
of the submission during regular business hours at the following
location: Joseph P. Pizarchik, Director, Bureau of Mining and
Reclamation, Pennsylvania Department of Environmental Protection,
Rachel Carson State Office Building, P.O. Box 8461, Harrisburg,
Pennsylvania 17105-8461, Telephone: (717) 787-5015.
FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh
Field Division, Telephone: (717) 782-4036. E-mail: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``a State law which provides
for the regulation of surface coal mining and reclamation operations in
accordance with the requirements of this Act * * *; and rules and
regulations consistent with regulations issued by the Secretary
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior 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 Proposed Amendment
By letter dated December 18, 2006 (Administrative Record Number PA
891.00), Pennsylvania sent us a proposed amendment to its program under
SMCRA (30 U.S.C. 1201 et seq.). The amendment adds new section 25
Pennsylvania Code (PA Code) 86.6 which provides for the exemption from
the permitting requirements of 25 PA Code Chapters 87 and 88 when
extraction of coal is incidental to government-financed construction or
government-financed reclamation projects and specified requirements are
[[Page 5381]]
met. The Pennsylvania Department of Environmental Protection (PADEP or
Department) believes that this amendment is consistent with the Federal
program and is no less effective than the Federal regulations at 30 CFR
part 707 (Exemption for Coal Extraction Incident to Government-Financed
Highway or Other Construction).
The full text of the proposed amendment is quoted below:
Sec. 86.6 Extraction of coal incidental to government-financed
construction or government-financed reclamation projects.
(a) Extraction of coal incidental to government-financed
construction or government-financed reclamation projects is exempt
from the permitting requirements of the Surface Mining Conservation
and Reclamation Act Construction [sic]
and this chapter as it
relates to surface mining activities and operations, and Chapters 87
and 88 (relating to surface mining of coal; and anthracite coal) if
the following conditions are met:
(1) During the project site selection process and prior to
development of final construction plans or reclamation plans for
projects located within coal bearing regions, the government entity
financing the construction or reclamation has provided the
Department with an opportunity to provide comments on the potential
environmental impacts of the project.
(2) The extraction of coal is necessary to enable the
construction or reclamation to be accomplished. Only that coal
extracted from within the right-of-way, in the case of a road,
railroad, utility line or other similar construction, or within the
boundaries of the area directly affected by other types of
government-financed construction or government-financed reclamation,
may be considered incidental to that construction or reclamation.
(3) The construction or reclamation is funded by a Federal,
Commonwealth, county, municipal, or local unit of government, or a
department, bureau, agency, or office of the unit which, directly or
through another unit of government, finances the construction or
reclamation.
(4) The construction or reclamation is funded 50% or more by
funds appropriated from the government unit's budget or obtained
from general revenue bonds. Funding at less than 50% may qualify if
the construction is undertaken as a Department-approved reclamation
contract or project.
(5) The construction or reclamation is performed under a bond,
contract and specifications that substantially provide for and
require protection of the environment, reclamation of the affected
area, and handling of excavated materials in a manner consistent
with the acts and regulations implementing the acts.
(6) The Department has approved the standards and specifications
for protection of the environment that will apply to the project
when potential adverse environmental impacts have been identified.
(b) Construction funded through government financing agency
guarantees, insurance, loans, funds obtained through industrial
revenue bonds or their equivalent or in-kind payments do not qualify
as government-financed construction.
(c) A person extracting coal incidental to government-financed
construction or government-financed reclamation who extracts more
than 250 tons of coal or affects more than 2 acres shall maintain on
the site of the extraction operation and make available for
inspection the following documents:
(1) A written description of the construction or reclamation project.
(2) A map showing the exact location of the construction or
reclamation, right-of-way or the boundaries of the area which will
be directly affected by the construction or reclamation.
(3) A statement identifying the government agency that is
providing the financing and the kind and amount of public financing,
including the percentage of the entire construction costs
represented by the government financing.
(4) When the area delineated in paragraph (2) is wholly or
partially within an area designated unsuitable for mining by the EQB
[Environmental Quality Board]
under section 86.130 (relating to
areas designated as unsuitable for mining), a copy of the detailed
report required by section 86.124(e) (relating to procedures:
Initial processing, recordkeeping and notification requirements).
(d) Government-financed construction projects and government-
financed reclamation shall comply with Chapters 91-96, 102 and 105.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Pennsylvania program.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. We may not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see ``DATES''). We will make every attempt to log
all comments into the administrative record, but comments delivered to
an address other than the Pittsburgh Field Division identified above
may not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: PA-149-FOR'' and your name and return address in your Internet
message. If you do not receive a confirmation that we have received
your Internet message, contact the Pittsburgh Field Division's
Harrisburg Office at (717) 782-4036.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
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 on
February 21, 2007. If you are disabled and need special 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 only one person requests an opportunity to speak, 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
[[Page 5382]]
a written summary of each meeting a part of the administrative record.
IV. 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 (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, 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 since each such program is drafted and promulgated
by a specific State, not by OSM. Under Sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and 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. 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 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute major Federal action within the meaning of section 102(2)(C)
of the National Environmental Policy Act (42 U.S.C. 4332(2)(c). A
determination has been made that such decisions are categorically
excluded from the NEPA process (516 DM 13.5(A)(2)).
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 has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State amendment that is the subject of this rule is based on
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal 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 governmental
agencies; 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 a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 12, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
[FR Doc. E7-1862 Filed 2-5-07; 8:45 am]
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