[Federal Register Volume 60, Number 63 (Monday, April 3, 1995)]
[Rules and Regulations]
[Pages 16788-16793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7817]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-111-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions, a proposed
amendment to the Pennsylvania permanent regulatory program (hereinafter
referred to as the Pennsylvania program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The amendment consists of
changes to Pennsylvania's Small Operator Assistance Program (SOAP)
rules. The amendment is intended to revise the Pennsylvania SOAP
program to be consistent with section 507(c) of SMCRA (Energy Policy
Act of 1992) and 30 CFR part 795. The proposed amendment would provide
more comprehensive assistance to SOAP participants than currently
allowed.
EFFECTIVE DATE: April 3, 1995.
FOR FURTHER INFORMATION CONTACT:Mr. Robert J. Biggi, Director,
Harrisburg Field Office, Office of Surface Mining Reclamation and
Enforcement, Harrisburg Transportation Center, Third Floor, Suite 3C,
4th and Market Streets, Harrisburg, Pennsylvania 17101, Telephone (717)
782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Pennsylvania Program
On July 31, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. Background information on the
Pennsylvania program including the Secretary's findings, the
disposition of comments, and a detailed explanation of the conditions
of approval of the Pennsylvania program can be found in the July 30,
1982, Federal Register (47 FR 33050). Subsequent actions concerning the
conditions of approval and program amendments are identified at 30 CFR
938.11, 938.12, 938.15, and 938.16. [[Page 16789]]
II. Submission of the Amendment
The Energy Policy Act of 1992, Pub. L. 102-486, October 24, 1992,
amended several sections of SMCRA. Section 507(c) was amended to expand
the coverage of free services that could be provided to qualified
applicants for permit application information under SOAP. Before
enactment of the Energy Policy Act, services provided by section 507(c)
covered the determination of probable hydrologic consequences required
by subsection 507(b)(11) and the statement of the results of test
boring or core sampling required by subchapter 507(b)(15). The section
507(c) revisions expanded the services under subsection 507(b)(11) to
include the engineering analyses and designs necessary for their
determination. The revisions also added additional allowable services.
These additional services include: the development of cross-section
maps and plans required by subsection (b)(14); the geologic drilling
and statement of test boring and core sampling required by subsection
(b)(15); the collection of archaeological information required by
subsection (b)(13) and any other archaeological and historical
information required by the regulatory authority; pre-blast surveys
required by section 515(b)(15)(E); and the collection of site-specific
resource information and the production of protection and enhancement
plans for fish and wildlife habitats and other environmental value
required by the regulatory authority.
The Energy Policy Act also added section 507(h) which makes the
operator liable for reimbursement of SOAP expenses if they exceed the
12-month coal production limit.
OSM published final regulations to implement the above statutory
provisions in the Federal Register, 59 FR 28136-28174, May 31, 1994.
The Pennsylvania Department of Environmental Resources (PADER)
published proposed rules in the Pennsylvania Bulletin (24 Pa.B. 2120-
2124, April 23, 1994), to revise the existing SOAP provisions to be
consistent with the Federal SOAP revisions. On October 24, 1994, PADER
submitted these rules as a program amendment (Administrative Record
Number PA 833.00).
OSM announced receipt of the proposed amendment in the November 15,
1994, Federal Register (59 FR 58802), and, in the same notice, opened
the public comment period and provided opportunity for a public hearing
on the adequacy of the proposed amendment. The comment period closed on
December 15, 1994.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the Pennsylvania program.
A. Revisions to Pennsylvania's Regulations That Are Substantively
Identical to the Corresponding Federal Regulations
------------------------------------------------------------------------
State regulation 25 Pa.
Code, chapter Subject Federal counterpart
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86.81(1)(i)............ Probable hydrologic 30 CFR 795.9(b)(1).
consequences.
86.81(1)(ii)........... Drilling services...... 30 CFR 795.9(b)(2).
86.81(1)(v)............ Preblast surveys....... 30 CFR 795.9(b)(5).
86.83(b)(2), (b)(3).... Attributed production.. 30 CFR 795.6(a)(2) (i)
and (ii).
86.85(a)(1) and (2).... Application approval... 30 CFR 795.9(a).
86.94(a)(4) and (5).... Applicant liability.... 30 CFR 796.12(a)(2)
and (3).
------------------------------------------------------------------------
Because the above proposed provisions are identical in meaning to
the corresponding Federal regulations, the Director finds that
Pennsylvania's proposed rules are no less effective than the Federal
regulations.
B. Revisions to Pennsylvania's Regulations that are not Substantively
Identical to the Corresponding Federal Regulations
1. Section 86.81, Program Services
At section 86.81(1), Pennsylvania proposes to delete the word
``laboratory'' and to replace that term with ``consultant.'' With this
change, the regulation provides that the PADER will select and pay a
qualified consultant for providing approved SOAP program services.
The counterpart Federal language at 30 CFR 795.9(a) uses the term
``laboratory.'' In its submittal of this change, PADER explained that
laboratories in Pennsylvania generally provide only the chemical
analyses of water and overburden samples and work as subcontractors to
professional engineering and geological consultants who actually
collect and evaluate data under contract with the PADER. The Director
concurs that use of the term ``consultant'' more closely reflects the
circumstances by which SOAP program services are obtained in
Pennsylvania. The Director finds that use of the term ``consultant'' is
consistent with the intent of the Federal regulations to pay for SOAP
program services, and does not render the Pennsylvania program less
effective than the counterpart Federal regulations at 30 CFR Part 795.
2. Subsections 86.81(1)(iii) and (iv), Program Services
At subsections 86.81(1) (iii) and (iv), Pennsylvania lists some of
the permit application requirements that PADER will fund through the
SOAP program services. Subsection 86.81(1)(iii) is the counterpart to
30 CFR 795.9(b) (4) and (6) and would provide funding for services that
would provide a description of the existing resources within and
adjacent to the proposed permit area.
Subsection 86.81(1)(iv) is the counterpart of 30 CFR 795.9(b)(3)
and would provide funding for services that would provide a detailed
description, to include maps, plans and cross sections, of the proposed
coal mining activities showing the manner in which the proposed permit
area will be mined and reclaimed.
In both of these provisions, 86.81(1)(iii) and (iv), Pennsylvania
provides several references to regulations that address the data
requirements for specific types of mining activities that will be
funded under the expanded SOAP services. In general, the services which
Pennsylvania is proposing to fund are authorized in the counterpart
Federal regulations at 30 CFR 795.9(b) (3), (4), and (6). However, the
references cited by Pennsylvania are general references and may
include, in addition to fundable services, permit application
requirements which, if funded, would extend SOAP coverage beyond the
limits established by SMCRA and the Federal regulations at 30 CFR
795.9(b).
Section 507(c)(1) of SMCRA establishes the SOAP to pay for various
permit application requirements, including (a) the determination of
probable hydrologic consequences; (b) the development of cross-
sections, maps, and plans; (c) the geologic drilling and statement of
results of test borings and core samplings; (d) the collection of
archaeological information and the preparation of plans necessitated
thereby; (e) preblast surveys; and (f) the collection of site-specific
resource information and production of protection and enhancement plans
for fish and wildlife habitats and other environmental values. The
Federal rules at 30 CFR 795.9(b) further clarify which permit
application requirements may be funded through SOAP. [[Page 16790]]
30 CFR 795.9(b)(3) provides for the funding of the development of
cross-section maps and plans required by 30 CFR 779.25 for surface
mining and section 783.25 for underground mining permit applications.
30 CFR 795.9(b)(4) provides for the funding of the collection of
archeological and historic information and related plans required by 30
CFR 779.12(b) and 783.12(b) and 30 CFR 780.31 and 784.17 and any other
archeological and historic information required by the regulatory
authority.
30 CFR 795.9(b)(6) provides for the funding of site-specific
resources information, the production of protection and enhancement
plans for fish and wildlife habitats required by 30 CFR 780.16 and
784.21, and information and plans for any other environmental values
required by the regulatory authority under SMCRA.
OSM's review of the references cited by Pennsylvania at subsections
86.81(1) (iii) and (iv) has determined that funding has not been
explicitly authorized by the Federal regulations at 30 CFR 795.9(b) for
the permitting requirements contained in the following Pennsylvania
citations:
25 Pa. Code
87.41-42
87.48-49
87.52-53
87.68
87.70-76
87.78-83
88.21-22(1)
88.28-29
88.30
88.32
88.41-44
88.46
88.48
88.50-55
88.57-61
89.31-32
89.37
89.71-73
89.102
89.121-122
89.141(d)
Also, the permitting requirements at 25 Pa. Code 87.77, 88.56, and
89.38 are not authorized for SOAP funding to the extent that they apply
to public parks.
Both the Energy Policy Act and 30 CFR 795.9(b)(1) authorize
reimbursement for engineering analyses and designs necessary for the
determination of probable hydrologic consequences, with the rule
specifying that this provision applies to ``engineering analyses and
designs necessary for the determination in accordance with sections
780.21(f), 784.14(e), and any other applicable provisions of this
chapter.'' Accordingly, preparation of engineering analyses and designs
essential to development of an adequate probable hydrologic
consequences determination is an authorized SOAP service, whereas
preparation of analyses and designs needed solely to satisfy other
program requirements is not. For example, preparation of diversion and
impoundment plans and designs would be an authorized SOAP service only
if the laboratory or other qualified entity cannot satisfactorily
prepare the probable hydrologic consequences determination in the
absence of these plans and designs.
The Energy Policy Act further authorizes funding for the
development of cross sections, maps and plans required by section
507(b)(14) of SMCRA. These requirements are reflected primarily in 30
CFR 779.25 and 783.25, which are cross-referenced in 30 CFR
795.9(b)(3). However, section 507(b)(14) of the Act also provides the
basis for those portions of 30 CFR 780.18(b)(3) and 784.13(b)(3) that
require cross sections showing the anticipated final surface
configuration of the proposed permit area. Therefore, the regulatory
authority may fund preparation of these cross sections even though 30
CFR 795.9(b)(3) does not cross-reference the underlying rules.
Because the requirements for operation and reclamation plans and
maps, air pollution control plans, and subsidence control plans are not
derived from section 507(b)(14) of SMCRA, SOAP funds may not be used
for development of these types of maps and plans unless other
provisions of section 507(c) of the Act or 30 CFR 795.9(b) specifically
authorize such expenditures. The State may be able to demonstrate that
funding for some aspects of these maps and plans is appropriate under
30 CFR 795.9(b)(6), which authorizes information collection and
preparation of plans ``for any other environmental values required by
the regulatory authority under the Act.''
To be consistent with SMCRA and the counterpart Federal
regulations, Pennsylvania must ensure that when implementing its SOAP
provisions, it does not authorize expenditures outside of those allowed
by SMCRA and the Federal regulations as discussed above. Although the
Energy Policy Act and the revisions to 30 CFR 795.9(b) have greatly
expanded the scope of services available under SOAP, funding remains
limited. Therefore, the program administrator may need to ration
funding under the provisions of 30 CFR 795.11(b).
The Director is approving subsections 86.81(1) (iii) and (iv) to
the extent that Pennsylvania implements these provisions consistent
with the SOAP funding provisions of SMCRA section 507(c) and the
implementing Federal regulations at 30 CFR 795.9(b) as discussed above.
The Director is not approving proposed subsections 86.81(1) (iii) and
(iv) to the extent that the proposed subsections would authorize the
expenditure of Pennsylvania SOAP funds under the subsections listed
above for services that are not fundable under section 507(c)(1) of
SMCRA or 30 CFR 795.9(b).
3. Section 86.82, Responsibilities
Subsection 86.82(a)(1) is being amended to provide that the PADER
will develop and maintain a list of qualified consultants and qualified
laboratories, and select and pay consultants for services rendered.
Prior to this amendment, the provision included qualified laboratories
but not consultants. As discussed above in Finding B-1, the addition of
``consultants'' more closely reflects the circumstances by which SOAP
program services are obtained in Pennsylvania. The Director finds that
the use of the term ``consultant'' is consistent with the intent of the
Federal regulations to pay for SOAP program services, and does not
render the Pennsylvania program less effective than the Federal
regulations.
4. Subsection 86.83(a)(2), Eligibility for Assistance
Subsection 86.83(a)(2) is being amended to provide that an
applicant is eligible for assistance if the applicant establishes that
the probable total and attributed production from the applicant's
operations during the 12-month period immediately following the date on
which the applicant is issued the mining activities permit will not
exceed 300,000 tons.
30 CFR 795.6(a)(2) provides that to be eligible for assistance, the
applicant must establish that the probable total attributed annual
production from all locations will not exceed 300,000 tons. In the
preamble to the approval of the Federal regulation at 30 CFR
795.6(a)(2) (59 FR 28139, May 31, 1994), OSM stated that in order to
reduce the potential for fraud and abuse, past production will be used
as the standard for evaluating whether an operator's annual production
is reasonably expected to be within the 300,000 ton limit for
eligibility under the SOAP. Therefore, to be eligible for SOAP
assistance, past production records should provide sound evidence that
following SOAP approval, production is reasonably likely to remain
under 300,000 tons annually. [[Page 16791]]
Therefore, the Director is approving the proposed amendment to
subsection 86.83(a)(2) except to the extent that the provision only
requires the applicant to establish that annual production following
permit issuance is reasonably likely to remain under 300,000 tons for
just the first year. In addition, the Director is requiring that
Pennsylvania further amend subsection 86.83(a)(2) to provide that the
applicant must establish that the operator's probable total attributed
annual production following permit issuance will remain under 300,000
tons for all years, not just the first year.
5. Subsection 86.86(b)(6), Right of Entry
This provision is being amended to provide that the application for
SOAP assistance shall contain copies of documents which show that the
legal right of entry necessary to meet the provisions of section 86.64
(relating to right of entry) have been obtained by the applicant.
The existing subparagraphs 86.84(b)(6) (i) and (ii) are being
deleted. Subsection (i) required the applicant to provide documents
that show the applicant has a legal right to enter and commence mining
within the permit area. Subsection (ii) required documents showing a
legal right of entry has been obtained for the office, department and
laboratory personnel to inspect the lands to be mined and adjacent
lands which may be affected to collect environmental data or install
necessary instruments.
The Director finds that the proposed amendment with the requirement
to comply with the approved right of entry provisions at section 86.64
is no less effective than the Federal regulations at 30 CFR 795.7(f).
6. Subsection 86.86(a), Notice
This provision is being amended to delete ``laboratories'' and add
in its place ``consultants.'' As discussed above in Finding B-1, the
use of ``consultant'' does not render the Pennsylvania program less
effective than the corresponding Federal regulations.
7. Subsection 86.87(a), Determination of Data Requirements
This provision is being amended to provide that if specifically
authorized by the PADER in an approved work order, the development of
information on environmental resources, operations plans and
reclamation plans may proceed concurrently with data collection and
analyses required for the determination of the probable hydrologic
consequences of the proposed mining activities. While there is no
direct counterpart in the Federal regulations, the provision is
consistent with the SOAP provision at 30 CFR part 795.9(c) and can be
approved.
8. Section 86.88, Data for Probable Hydrologic Consequences (PHC)
This provision is being deleted in its entirety. The requirement to
provide a PHC determination for the applicant is located at subsection
86.81(1)(i). The Director finds that the proposed deletion does not
render the Pennsylvania program less effective and can be approved.
9. Section 86.89, Data for Test Borings and Core Samplings
This provision is being deleted in its entirety. The requirement to
provide data for the results of test borings and core samplings is
located at subsection 86.81(1)(ii). The Director finds that the
proposed deletion does not render the Pennsylvania program less
effective and can be approved.
10. Section 86.91, Definitions and Responsibilities
In subsection 86.91(a), Pennsylvania is amending the term
``qualified laboratory'' to read ``qualified consultant and qualified
laboratory.'' Nonsubstantive wording changes are also being made.
The term ``qualified consultant'' is being added to subsections
86.91(b) and (c).
As discussed in Finding B-1, the use of the term ``qualified
consultant'' more closely reflects the circumstances by which the SOAP
services are obtained in Pennsylvania. The Director finds that the use
of the term ``qualified consultant'' is consistent with the intent of
the Federal SOAP regulations and does not render the Pennsylvania
program less effective than the Federal regulations.
11. Section 86.92, Basic Qualifications
Pennsylvania is proposing to add ``qualified consultant'' or
``consultant'' to subsections 86.92 (a) and (b). As discussed above in
Finding B-1, the use of consultants to provide SOAP program services
does not render the Pennsylvania program less effective and can be
approved.
The State is adding ``overburden laboratory'' at subsection
86.92(a)(1). As amended, 86.92(a)(1) requires that to be designated as
a qualified consultant or laboratory, the consultant or laboratory must
be staffed with experienced, professional personnel in the fields of
hydrology, mining engineering, aquatic biology, geology or chemistry
applicable to the work to be performed as a water laboratory,
``overburden laboratory'' or consulting firm. The Director finds that
this amendment is consistent with 30 CFR 795.10(a)(1).
The State is adding a new subsection 86.92(a)(6)(iv) to require a
demonstration by the laboratory or consultant that it has the
analytical, monitoring, and measuring equipment capable of meeting the
applicable standards and methods contained in ``[t]he Department's
Overburden Sampling and Testing Manual.''
The Director finds this requirement is consistent with and no less
effective than the counterpart Federal regulations at 30 CFR
795.10(a)(4) concerning qualified laboratories.
At subsection 86.92(b) the State is deleting language and adding
replacement language to make it clear that a qualified laboratory or
consultant must be capable of performing the program services in newly
revised section 86.81. The Director finds this change to be consistent
with and no less effective than the Federal regulations at 30 CFR
795.10(a)(6).
12. Section 86.93, Assistance Funding
The State is deleting the phrase ``or the costs of test borings or
core sampling'' from subsection 86.93(a). As amended, the provision
prohibits SOAP funds from OSM to be used to cover administrative costs
of the PADER. The Director finds that the deletion of the prohibition
that SOAP funds may not be used to cover the costs of test borings or
core sampling is consistent with 30 CFR 795.9(b)(2) which authorizes
such payments.
13. Section 86.94, Applicant Liability
a. The State is adding the term ``consultant'' at subsections 86.94
(a), (a)(2), and (d)(1). The State is deleting the term ``laboratory''
at subsections (a)(2) and (d)(1). As discussed above in Finding B-1,
the use of the term ``consultant'' more accurately reflects the
circumstances by which SOAP program services are obtained in
Pennsylvania. The Director finds that use of the term ``consultant'' is
consistent with the intent of the Federal regulations to pay for SOAP
program services, and does not render the Pennsylvania program less
effective than the Federal regulations at 30 CFR Part 795.
b. The State is adding the phrase ``beyond the applicant's
control'' to the end of the sentence in subsection 86.94(a)(2). With
this change, the applicant would not be liable for the costs of program
services rendered if the consultant's report indicates that the
application is not approvable for [[Page 16792]] technical reasons
beyond the applicant's control. The Director finds the addition is
consistent with the Federal regulation at 30 CFR 795.12(b) which allows
the SOAP administrator to waive the reimbursement obligation if the
administrator finds that the applicant at all times acted in good
faith.
14. Section 86.95, Measurement
This provision is being amended to delete references to the
specific name and number of the OSM form on which an operator reports
coal production for purposes of complying with the Abandoned Mine Land
Reclamation Program requirements. The Director finds that this change
improves the accuracy of the provision and does not render the
Pennsylvania program less effective than the Federal regulations.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),
comments were solicited from various interested Federal agencies. The
Mine Safety and Health Administration (MSHA) of the U.S. Department of
Labor responded that the amendment will not impact on any existing MSHA
regulations (Administrative Record No. PA 833.06). The Soil
Conservation Service of the U.S. Department of Agriculture responded
that there is no indication that the approval of this amendment would
result in any environmental degradation or cause accelerated erosion
and sedimentation problems (Administrative Record No. PA 833.05).
Public Comments
A public comment period and opportunity to request a public hearing
was announced in the November 15, 1994, Federal Register (59 FR 58802).
The comment period closed on December 15, 1994. No one requested an
opportunity to testify at the scheduled public hearing so no hearing
was held. The Pennsylvania Coal Association commented in support of the
amendment.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et
seq.). The Director has determined that this amendment contains no
provisions in these categories and that EPA's concurrence is not
required.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. PA 833.01). EPA
responded on December 6, 1994 (Administrative Record No. PA 833.08),
and concurred with the proposed amendments.
V. Director's Decision
Based on the findings above, the Director is approving, except as
noted below, Pennsylvania's SOAP amendment as submitted by Pennsylvania
on October 24, 1994.
As noted in Finding B-2 above, the Director is approving chapter
86.81(1) (iii) and (iv), concerning fundable program services, only to
the extent that Pennsylvania will implement these provisions consistent
with the SOAP funding provisions of SMCRA section 507(c)(1) and the
implementing Federal regulations at 30 CFR 795.9(b). The Director is
not approving proposed subsections 86.81(1) (iii) and (iv) to the
extent that the proposed subsections would authorize the expenditure of
Pennsylvania SOAP funds under the subsections listed above in Finding
B-2 for services that are not fundable under section 507(c)(1) of SMCRA
or 30 CFR 795.9(b).
As discussed in Finding B-4 above, the Director is approving
chapter 86.83(a)(2) except to the extent that the provision limits an
operator's obligation to establish that annual production following
permit approval is reasonably likely to remain under 300,000 tons for
all years, not just the first year. In addition, the Director is
requiring that Pennsylvania further amend chapter 86.83(a)(2) to
provide that the applicant must establish that the operator's probable
total attributed annual production following permit issuance is
reasonably likely to remain under 300,000 tons for all years, not just
the first year.
The Federal regulations at 30 CFR Part 938 codifying decisions
concerning the Pennsylvania program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In his
oversight of the Pennsylvania program, the Director will recognize only
the statutes, regulations and other materials approved by him, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Pennsylvania of only
such provisions.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 [[Page 16793]] 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
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.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 24, 1995.
Ronald C. Recker,
Acting Assistant Director, Eastern Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 938--PENNSYLVANIA
1. The authority citation for Part 938 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. In Section 938.15, paragraph (cc) is added to read as follows:
Sec. 938.15 Approval of regulatory program amendments.
* * * * *
(cc) The SOAP amendment to the Pennsylvania program concerning the
Small Operator Assistance Program as submitted to OSM on October 24,
1994, is approved, except as noted herein, effective April 3, 1995:
25 Section 86.81--Program services. Subsection 86.81(1)(iii) and
(iv) are approved to the extent that the State will implement those
services consistent with the SOAP funding provisions of SMCRA
section 507(c)(1) and the implementing Federal regulations at 30 CFR
795.9(b). The Director is not approving proposed subsections
86.81(1)(iii) and (iv) to the extent that the proposed subsections
would authorize the expenditure of Pennsylvania SOAP funds under the
subsections listed in the preamble at Finding B-2 for services that
are not fundable under section 507(c)(1) of SMCRA or 30 CFR
795.9(b).
25 Section 86.82--Responsibilities.
25 Section 86.83--Eligibility for assistance. Subchapter 86.83(a)(2)
is approved except to the extent that the provision only requires
the operator to establish that annual production following permit
approval is reasonably likely to remain under 300,000 tons for just
the first year.
25 Section 86.84--Applications for assistance.
25 Section 86.85--Application approval.
25 Section 86.86--Notice.
25 Section 86.87--Determination of data requirements.
25 Section 86.88--Deletion of this subchapter.
25 Section 86.89--Deletion of this subchapter.
25 Section 86.91--Definitions and responsibilities.
25 Section 86.92--Basic qualifications.
25 Section 86.93--Assistance funding.
25 Section 86.94--Applicant liability.
25 Section 86.95--Measurement.
3. In Sec. 938.16, paragraph (ooo) is added to read as follows:
Sec. 938.16 Required regulatory program amendments.
* * * * *
(ooo) By September 1, 1995, Pennsylvania shall amend 25 chapter
86.83(a)(2) to be no less effective than 30 CFR 795.6(a)(2) to provide
that the applicant must establish that the operator's probable total
attributed annual production following permit issuance will remain
under 300,000 tons for all years, not just the first year.
[FR Doc. 95-7817 Filed 3-31-95; 8:45 am]
BILLING CODE 4310-05-M
