[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Proposed Rules]
[Pages 72297-72300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33462]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-128-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing the receipt of a proposed amendment to the
Pennsylvania Regulatory Program (hereinafter referred to as the
Pennsylvania program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as amended. Pennsylvania
has submitted this proposed amendment to reflect changes made to
regulations in the Pennsylvania program through the Department's
Regulatory Basics Initiative (RBI). Under this initiative, regulations
were revised because they were considered to be unclear, unnecessary or
more stringent than the corresponding Federal regulation. The RBI
resulted in the following rulemaking:
Coal Mining--Areas Unsuitable for Mining, Pennsylvania Bulletin,
Vol. 29, No. 41, October 9, 1999.
DATES: Written comments must be received by 4:00 p.m., on January 26,
2000. If requested, a public hearing on the proposed amendment will be
held on January 21, 2000. Requests to speak at the hearing must be
received by 4:00 p.m., on January 11, 2000.
ADDRESSES: Written comments and requests to testify at the hearing
should be mailed or hand-delivered to Mr. Robert J. Biggi, Director,
Harrisburg Field Office at the first address listed below. Our practice
is to make comments, including names and home addresses of respondents,
available for public review during regular business hours. Individual
respondents may request that we withhold their home address from the
rulemaking [or administrative] record, which we will honor to the
extent allowable by law. There also may be circumstances in which we
would withhold from the rulemaking [or administrative] record a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comment. However, we will not consider anonymous
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 inspection in their entirety.
Copies of the Pennsylvania program, the proposed amendment, a
listing of any scheduled public meeting or hearing, and all written
comments received in response to this notice will be available for
public review at the addresses listed below during normal business
hours, Monday through Friday, excluding holidays:
Office of Surface Mining Reclamation and Enforcement, Harrisburg
Field Office, Third Floor, Suite 3C, Harrisburg Transportation Center,
415 Market Street, Harrisburg, Pennsylvania 17101, Telephone: (717)
782-4036.
Pennsylvania Department of Environmental Protection, Bureau of
Mining and Reclamation, Rachel Carson State Office Building, Post
Office Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717)
787-5103.
Each requester may receive, free of charge, one copy of the
proposed amendment by contacting the OSM Harrisburg Field Office.
FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director
Harrisburg Field Office, Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
On July 30, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. Background on the Pennsylvania
program, including the Secretary's findings and the disposition of
comments, can be found in the July 30, 1982, Federal Register (47 FR
33079). Subsequent actions concerning the Pennsylvania program
amendments are identified at 30 CFR 938.15.
II. Discussion of the Proposed Amendment
By letter dated November 22, 1999 (Administrative Record No. PA-
861.03, the Pennsylvania Department of Environmental Protection (PADEP)
submitted a proposed amendment to its program regarding rules related
to Areas Unsuitable for Mining because of the department's Regulatory
Basics Initiative (RBI). Under the RBI, regulations were revised
because they were considered unclear, unnecessary or were more
stringent than the corresponding federal regulations.
The changes proposed by PADEP in this amendment apply to the
following parts of the Pennsylvania program: 25
[[Page 72298]]
PA Code 86.1, 86.101-86.121, and 86.123-86.130. These changes are
summarized below. Revisions concerning nonsubstantive wording, format,
or organizational changes will not be described in this notice.
1. In 25 PA Code 86.1 (definitions), subsections (i) through (v)
which formally defined Valid Existing Rights have been deleted and
replaced by the following: ``Rights which exist under the definition of
`valid existing rights' in 30 CFR Section 761.5 (relating to areas
unsuitable for mining).'' The purpose of this change is to make this
section more consistent with the Federal regulations at 30 CFR 761.5.
2. In 25 PA Code 86.101 (definitions), the amendment revises the
definitions of the following terms: fragile lands; historic lands;
public building; public park; renewable resource lands; and significant
recreational, timber, economic or other values incompatible with
surface mining operations. The objectives of the revisions are
consistency with the Federal regulations (at 30 CFR 700.5, 761.5, and
762.5) and, in the case of fragile lands, consistency with Pennsylvania
SMCRA, Section 4.5. Specific revisions include the following:
In the definition of fragile lands, ``significantly'' is inserted
in front of the word, ``damaged.'' At the end of the subsection, the
amendment deletes the following: ``* * * and buffer zones adjacent to
the boundaries of areas where surface mining operations are prohibited
under section 4.5(h) of the Surface Mining Conservation and Reclamation
Act (52 P.S. Sec. 1396.4e(h)).''
In the definition of historic lands, the following is deleted:
``Historic or cultural districts, places, structures or objects,
including archaeological and paleontological sites, National Historic
Landmark sites, sites listed * * *''. This is replaced by: ``Areas
containing historic, cultural or scientific resources. Examples of
historic lands include archaeological sites, properties listed on * *
*''.
In the definition of public building, the following is deleted: ``*
* * by a public agency or used principally * * *''. This is replaced by
``* * * or leased and principally used by a government agency * * *''
In the definition of public park, ``* * * or portion of an area * *
*'' is inserted after the word, ``area'' at the beginning of the
subsection. In the same sentence, the word ``primarily,'' is inserted
before ``* * * for public recreational use * * *'' The following final
sentence has been deleted: ``For the purposes of this subchapter, local
agency shall include nonprofit organizations owning lands which are
dedicated or designated for public recreational use.''
The definition of renewable resource lands has been changed to:
``Areas which contribute significantly to the long-range productivity
of water supply or of food or fiber products, such lands to include
aquifers and aquifer recharge areas.''
In the definition of surface mining operations, the following
phrase at the end of the subsection has been deleted: ``* * * and
activities involved in or related to underground coal mining which are
conducted on the surface of the land, produce changes in the land
surface, or disturbs the surface, air or water resources of the area.''
3. 25 PA Code 86.102 (areas where mining is prohibited or limited)
was revised to improve consistency with the Federal regulations (at 30
CFR 761.11 and 761.12), to recognize the role of the newly formed
Department of Conservation and Natural Resources, to clarify a legal
citation, and insert metric equivalents for barrier distances.
In subsection (1), following the citation, ``(16 U.S.C.A.
1276(a)),'' the following has been inserted: ``* * * or study rivers or
study river corridors as established in guidelines under the act * *
*''. In subsection (3), the following phrase after the word,
``included,'' has been deleted: ``* * * on or eligible for inclusion *
* *''. The first part of the subsection now reads: ``Which will
adversely affect a publicly-owned park or a place included on the
National Register of Historic Places * * *''. In subsection (4), ``* *
* the Department of Conservation and Natural Resources and * * *'' is
inserted before the words, ``the Department.'' In subsection (5), ``* *
* Department of Conservation and Natural Resources and the * * *'' is
inserted before the word, ``Department.''
Subsection (9) has been revised to read as follows:
(9) Within 300 feet (91.44 meters) measured horizontally from an
occupied dwelling, unless one or more of the following exist:
(i) The only part of the surface mining operations which is within
300 feet (91.44 meters) of the dwelling is a haul road or access road
which connects with an existing public road on the side of the public
road opposite to the dwelling.
(ii) The owner thereof has provided a written waiver by lease, deed
or other conveyance clarifying that the owner and signatory had the
legal right to deny surface mining operations and knowingly waived that
right and consented to surface mining operations closer than 300 feet
(91.44 meters) of the dwelling as specified.
(A) A valid waiver shall remain in effect against subsequent owners
who had actual or constructive knowledge of the existing waiver at the
time of purchase.
(B) Subsequent owners shall be deemed to have constructive
knowledge if the waiver has been properly filed in public property
records or if the surface mining operations have proceeded to within
the 300 foot (91.44 meters) limit prior to the date of purchase.
(iii) A new waiver is not required if the applicant for a permit
had obtained a valid waiver prior to August 3, 1977, from the owner of
an occupied dwelling to mine within 300 feet (91.44 meters) of such
dwelling.
4. Parts of 25 PA Code 86.103 (procedures) have been revised to
increase the clarity of the language and to add metric equivalents.
Subsection (d) has been revised to read as follows:
(d) When the proposed surface mining operations would be conducted
within 300 feet (91.44 meters) measured horizontally of any occupied
dwelling, the applicant shall submit with the application a written
waiver as specified in Sec. 86.102(9) (relating to areas where mining
is prohibited or limited).
In subsection (e) the word, ``may,'' following ``surface mining
operations'' has been replaced by, ``will.'' The first part of the
subsection now reads: ``When the proposed surface mining operations
will adversely affect a publicly owned park or a place included on the
National Register of Historic Places, * * *''. Also, the following has
been added to subsection (e)(2):
(i) Upon request by the appropriate agency a 30-day extension may
be granted.
(ii) Failure to object within the comment period shall constitute
an approval of the proposed permit by that agency.
5. 25 PA Code 86.121 (areas designated unsuitable for surface
mining operations) has been revised for clarity and consistency with
the Federal regulations (at 30 CFR 762.13). The section's title has
been changed to: ``Areas exempt from designation as unsuitable for
surface mining operations.'' Also, subsections (a) and (b) have been
deleted, and the following added:
(1) Surface mining operations were being conducted on August 3,
1977.
(2) Surface mining operations have been authorized by a valid
permit issued under the Surface Mining Conservation and Reclamation Act
(52 P.S. Secs. 1396.1-1396.19a), the Coal Refuse Disposal Control Act
(52 P.S. Secs. 30.51-30.66), The Clean Streams Law (35 P.S.
Secs. 691.1-691.1001), or the
[[Page 72299]]
Bituminous Mine Subsidence and Land Conservation Act (52 P.S.
Secs. 1406.1-1406.21).
(3) A person establishes that substantial legal and financial
commitments in surface mining operations were in existence prior to
January 4, 1977.
6. In 25 PA Code 86.123 (procedures: petitions), the following
language has been added to subsection (c)(5) to make it more consistent
with the Federal regulations at 30 CFR 764.13: ``A person having an
interest which is or may be adversely affected must demonstrate an
``injury in fact'' by describing the injury to the specific affected
interest and demonstrating how they are among the injured.''
7. 25 PA Code 86.124 (procedures: initial processing, record
keeping and notification requirements) has been revised for clarity and
consistency with 25 PA Code 86.126 and the corresponding Federal
provisions at 30 CFR 764.15 and 764.17. Following the first sentence of
subsection (2), the following has been inserted: ``A frivolous petition
is one in which the allegations of harm lack serious merit.'' In
subsection (c), the following is inserted after the words,
``allegations of facts'' for clarity: ``* * * describing how the
designation determination directly affects the intervenor * * *''.
Subsection (f) has been revised to read as follows: ``The Department
will prepare a recommendation on each complete petition received under
this section and submit it to the EQB within 12 months of receipt of
the complete petition.
8. 25 PA Code 86.125 (procedures: hearing requirements) has been
revised for clarity and consistency with the PADEP and EQB regulatory
review procedures. The part of subsection (a), beginning with the
words, ``The hearing shall be'' has been separated into a new
subsection (b). The last sentence under the original subsection (a),
which had required the EQB to make a verbatim transcript of the
hearing, has been deleted. The original subsection (b) has been changed
to (e), and has been revised. The original subsections (c) and (d) have
been changed to (g) and (h) respectively. The new subsections (c)
through (d) read as follows:
(c) No person shall bear the burden of proof or persuasion.
(d) A verbatim transcript of the hearing will be made and included
in the public record.
The opening statement of subsection (e) has been changed to read as
follows: ``The department will give notice of the date, time and
location of the hearing by first class mail postmarked not less than 30
days before the scheduled hearing to:'' Then subsections (e)(2) through
(4) have been revised as follows: the original language in (e)(2)
(``The petitioner and intervenors'') has been deleted; the original
language in (3) has been transferred to (2), and has been changed to
read, ``persons known to the department to have an ownership or other
interest in the area covered by the petition'; and (e)(4) has been
deleted.
The language originally under subsection (f) is now designated as
(k). The new subsection (f) reads as follows: ``The Department will
give notice of the date, time and location of the hearing by certified
mail postmarked not less than 30 days before the scheduled hearing to
the petitioner and to the intervenors.''
9. 25 PA Code 86.126 (procedures: decision) has been revised for
clarity and consistency with PADEP and EQB regulatory review
procedures. Under subsection (b) there are new subsections, (1) and
(2), which specify actions the EQB is required to take, depending on
its decision whether or not to designate an area as unsuitable for
surface mining operations.
10. 25 PA Code 86.127 (data base and inventory system requirements)
has been revised to correct a misspelling and reflect the dissolution
of the Department of Community and Economic Development.
11. 25 PA Code 86.128 (public information) has been revised to
correct a misspelling.
12. 25 PA Code 86.129 (coal exploration) has been revised for
consistency with the Federal regulations at 30 CFR 762.14. It's title
has been changed to: ``Coal exploration on areas designated as
unsuitable for surface mining operations.'' The remainder of the
revised subsection reads as follows:
(a) Designation of an area as unsuitable for all or certain types
of surface mining operations under this chapter does not prohibit coal
exploration operations in the area.
(b) Coal exploration may be conducted on an area designated as
unsuitable for surface mining operations in accordance with this
chapter if the following apply:
(1) The exploration is consistent with the designation.
(2) The exploration will be conducted to preserve and protect the
applicable values and uses of the area under Subchapter E (relating to
coal exploration), and the Department has issued written approval for
the exploration.
13. 25 PA Code 86.130 (areas designated as unsuitable for mining)
has been revised to insert metric equivalents and correct two
regulatory references.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is now
seeking comment on whether the amendment proposed by Pennsylvania
satisfies the applicable requirements for the approval of State program
amendments. If the amendment is deemed adequate, it will become part of
the Pennsylvania program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Harrisburg Field Office will
not necessarily be considered in the final rulemaking or included in
the Administration Record.
Public Hearing
Persons wishing to comment at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by close of
business on January 11, 2000. If no one requests an opportunity to
comment at a public hearing, the hearing will not be held.
If a public hearing is held, it will continue on the specified date
until all persons scheduled to comment have been heard. Persons in the
audience who have not been scheduled to comment and who wish to do so
will be heard following those scheduled. The hearing will end after all
persons who desire to comment have been heard. Filing of a written
statement at the time of the hearing is requested as it will greatly
assist the transcriber.
Public Meeting
If only one person requests an opportunity to comment at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendments may request a meeting at the Harrisburg Field Office by
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All
such meetings will be open to the public and, if possible, notices of
the meetings will be posted in advance at the locations listed above
under ADDRESSES. A summary of meeting will be included in the
Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This proposed rule is exempted from review by the Office of
Management and
[[Page 72300]]
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed 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 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.
National Environmental Policy Act
No environmental impact statement is required for this rule since
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 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 submittal which is the subject of this rule is based upon
corresponding 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 in the analyses for the corresponding Federal regulations.
Unfunded Mandates
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), this rule will not produce a Federal mandate of $100 million
or greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 16, 1999.
Allen D, Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 99-33462 Filed 12-23-99; 8:45 am]
BILLING CODE 4310-05-P
