2010-14868. Pennsylvania Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing on proposed amendment.

SUMMARY:

OSM is announcing receipt of a request (Administrative Record No. 844.14) to remove a required amendment to the Pennsylvania regulatory program (the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania has provided a rationale that it believes supports the position that the required amendment related to specific information (cessation orders) for permit applications should be removed.

This document gives the times and locations that the Pennsylvania program and this submittal are available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments until 4 p.m., e.s.t. July 21, 2010. If requested, we will hold a public hearing on July 16, 2010. We will accept requests to speak until 4 p.m., e.s.t. on July 6, 2010.

ADDRESSES:

You may submit comments, identified by “PA-155-FOR; Docket ID: OSM-2010-0003” by either of the following two methods:

Federal eRulemaking Portal: www.regulations.gov. The proposed rule has been assigned Docket ID: OSM-2010-0003. If you would like to submit comments through the Federal eRulemaking Portal, go to www.regulations.gov and follow the instructions.

Mail/Hand Delivery/Courier: Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, Harrisburg Transportation Center, 415 Market St., Suite 304, Harrisburg, PA 17101.

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: In addition to obtaining copies of documents at www.regulations.gov,, information may also be obtained at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Pittsburgh Field Division Office at:

OSM's Pittsburgh Field Division Office, George Rieger, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, Harrisburg Transportation Center, 415 Market St., Suite 304, Harrisburg, Pennsylvania 17101, Telephone [phone], E-mail: [e-mail].

William S. Allen Jr., Acting 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: [phone], E-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

George Rieger, Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

II. Description of the 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 Amendment

By letter dated March 4, 2010, Pennsylvania sent us a request to remove a required amendment codified at 30 CFR 938.16(bbb) (Administrative Number PA 844.14), under SMCRA (30 U.S.C. 1201 et seq.). The required amendment reads as follows:

By May 1, 1993, Pennsylvania shall submit a proposed amendment to section 86.63(a)(3) to require that all applications for surface mining permits include the specific information required by section 86.63(a)(3)(i)-(viii) for all cessation orders received, by the applicant and anyone linked to the applicant through ownership and control, prior to the date of the application.

Section 86.63 of 25 Pennsylvania Code outlines the compliance information that is required for an application and subsection 86.63(a)(3) reads as follows:

(3) For a violation of a provision of the acts, or law, rule or regulation of the United States, or of State law, rule or regulation enacted under Federal law, rule or regulation pertaining to air or water environmental protection incurred in connection with a coal mining activity, a list of the violation notices received by the applicant during the 3-year period preceding the application date and a list of the unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by a coal mining activity owned or controlled by either the applicant or by a person who owns or controls the applicant under the definition of “owned or controlled” or “owns or controls” in section 86.1. The application shall also contain a statement regarding each violation notice including the following:

(i) The identification number of the permit or operation and the MSHA number including the date of issuance of the MSHA number.

(ii) The date of issuance of the violation notice with the Federal or State identification number.

(iii) The name of the issuing regulatory authority, department or agency.

(iv) The name of the person to whom the violation notice was issued.

(v) A brief description of the particular violation.

(vi) The date, location and type of administrative or judicial proceedings initiated concerning the violation.

(vii) The current status of the violation.

(viii) The actions taken by the applicant to abate the violation, and proof which is satisfactory to the regulatory authority, department or agency which has jurisdiction over the violation that the violation has been corrected, or is in the process of being corrected.

Pennsylvania states that under the Pennsylvania program, a cessation order is a type of violation notice. A cessation order is a compliance order that requires cessation of all or part of a mining operation. Pennsylvania manages its enforcement such that all violations are handled through enforcement actions. All enforcement actions are “violation notices” because they are the vehicle through which a violator is notified that there is a violation. In practice, the term “violation notice” in 25 Pa. Code 86.63(a)(3) includes the following enforcement actions: Compliance Orders, Cessation Orders, Failure to Abate Cessation Orders, Permit Suspensions, and Bond Forfeitures.

Pennsylvania manages violation and enforcement data using the eFACTS (Environment, Facility, Application, Compliance Tracking System) database. The practice to include cessation orders along with the other enforcement actions is embedded in the report that is used to verify violation history data.

The regulation at 25 Pa. Code 86.63(a)(3) requires cessation orders to be reported because in practice the term “violation notice” includes cessation orders. Therefore, Pennsylvania is requesting that the required program amendment at 30 CFR 938.16(bbb) be removed. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Pennsylvania program.

Electronic or Written Comments

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications. We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will not consider anonymous comments.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t July 6, 2010. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If there is only limited interest in participating in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the submission, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 938

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: April 28, 2010.

Thomas D. Shope,

Regional Director, Appalachian Region.