Pennsylvania Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-126-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 (Pennsylvania program) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

proposed amendment revises certain portions of 25 Pennsylvania Code

Chapter 86, Surface and Underground Mining: General, pertaining to

ownership and control, bonding, civil penalties and areas unsuitable

for mining. The amendments are intended to revise the Pennsylvania

program to be consistent with the corresponding Federal regulations.

DATES: Written comments must be received on or before 4 p.m. on

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December 29, 1999. If requested, a public hearing on the proposed

amendments will be held at 1 p.m. on December 27, 1999. Requests to

present oral testimony at the hearing must be received on or before 4

p.m. on December 14, 1999.

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 meetings 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

(Amtrack), 415 Market Street, Harrisburg, Pennsylvania 17101,

Telephone: (717) 782-4036.

Pennsylvania Department of Environmental Protection, Bureau of

Abandoned Mine Reclamation, 400 Market Street, P.O. Box 8476,

Harrisburg, Pennsylvania 17101, Telephone: (717) 783-2267.

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 regulatory program amendments

are identified at 30 CFR 938.15.

II. Discussion of the Proposed Amendment

By letter dated November 2, 1999 (Administrative Record No. PA-

845.02), the Pennsylvania Department of Environmental Protection

(PADEP) submitted a proposed amendment to its program pertaining to

ownership and control, bonding, civil penalties and areas unsuitable

for mining.

PADEP proposes to amend certain provisions of 25 Pennsylvania Code

Chapter 86, Surface and Underground Coal Mining: General, as follows:

Section 86.1. Definitions

1. Owned or controlled or owns or controls. PADEP proposes to

change this terminology by substituting the word ``and'' for the second

``or'' so it now reads--Owned or controlled and owns or controls. PADEP

also proposes to modify subparagraph (iii)(E) by deleting the specified

percentages of 10-50% and including a reference to percentages in the

Federal regulations instead.

2. Related party. PADEP proposes to exclude from this definition

persons who are excluded as owners or controllers based on a percentage

of ownership under the definition of ``owned or controlled and owns or

controls'.

3. Willful Violation. PADEP proposes to add this definition which

states that a willful violation is an act or omission which violates

the acts, this chapter, Chapter 87, 88, 89, or 90, or a permit

condition required by them, committed by a person who intends the

result which actually occurs.

Section 86.124(a)(6) Areas Unsuitable for Mining

PADEP proposes to remove language allowing petitions for

unsuitability to be submitted after an administratively complete

surface mining permit has been filed and the first newspaper notice has

been published. PADEP also proposes to add a statement that the

Department will provide written notice to the petitioner with a

statement of its findings.

Section 86.152(d) Adjustments (Bond Amount)

PADEP proposes to add section (d) to require notification of

proposed adjustments to bond amounts to the permittee, the surety and

any person with a property interest in collateral who have requested

such notification. The proposed rule also adds language providing the

permittee an opportunity for informal conference on the adjustment.

Section 86.156 Form of the Bond

PADEP proposes to add a self bond to the type of bonds the

Department may accept in new subsection (3). Existing subsection (3) is

re-numbered as (4) and modified to substitute the term ``bonding

instruments'' for surety and collateral bonds and bond. Existing

subsections (4) and (5) are re-numbered as (5) and (6), respectively.

Section 86.160 Combination of Bonding Instruments

PADEP proposes to change the title of this section from ``Surety/

collateral combination bond'' to that above, and to further modify the

section to include self bonds as part of the combination of bonds that

may be accepted.

Section 86.171 Procedures for Seeking Release of Bond

PADEP proposes to add a phrase to this section that requires the

Department to inspect a site for bond release within 30 days or as soon

thereafter as weather conditions permit.

Section 86.182 Procedures

PADEP proposes to add new subsection (a) which requires the

Department to notify the permittee and surety of its intent to forfeit

the bond. Existing subsections regarding bond forfeiture currently

lettered as (a) through (g) are re-lettered as (b) through (h) without

modification.

Section 86.193 Assessment of Penalty

PADEP proposes to increase the threshold for assessment of a

penalty from $1000 to $1100 in subsections (b) and (c). PADEP also

proposes to drop mandatory penalties for violations of conducting

surface mining activities off the permitted area by deleting

subsections (d) through (g).

Section 86.194 System for Assessment of Penalties

PADEP proposes to add language in subsection (b)(1)(vi) allowing an

additional civil penalty amount up to the statutory limit to be

assessed in extraordinary circumstances.

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PADEP also proposes to specify $3,000 as the upper limit to be

assessed based on seriousness in subsection (b)(1).

PADEP also proposes to modify subsection (b)(2), Culpability, by

lowering the maximum limit from $1500 to $1200. Also, the proposed

minimum limit for violations of willful or reckless conduct are to be

assessed a minimum of $260, down from $2000.

PADEP also proposes to change the criteria for credit to be given

for speed of compliance in subsection (b)(3).

PADEP also proposes to delete the phrase ``without limitation'' in

subsection (b)(4).

PADEP also proposes to reduce the review period for the history of

previous violations from two years to one in subsection (b)(6).

PADEP proposes to add new subsection (f) entitled ``Revision of

civil penalty'' . Subsection (1) is added and explains that the

Department may revise a civil penalty calculated in accordance with

dollar limits included in subsection (b) and that the basis for

revision would be fully explained and documented. New subsection (2) is

added to explain that if the Department revises the civil penalty, the

Department will use the general criteria in subsection (b) and will

give a written explanation of the basis for the revision to the person

to whom the order was issued.

Section 86.195(c) Penalties Against Corporate Officers

PADEP proposes to add new subsection (c) which provides for a stay

and withdrawal of individual civil penalties under certain conditions.

Section 86.201 Procedures for Assessment of Civil Penalties

PADEP proposes to add new subsection (a) to allow operators to

submit information to the Department and the inspector concerning

violations within 15 days of service of a notice of violation or order.

Existing subsections (a) through (d) are re-lettered (b) through (e),

respectively. PADEP also proposes to add new subsection (f) to restrict

the use of certain evidence in formal review proceedings. Existing

subsection (f) is re-lettered as (g).

Section 86.202 Final Action

PADEP proposes to change the title of this section from ``Appeal

Procedures'' to that above.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. 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 Administrative 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 December 14, 1999. If no one requests an opportunity to

comment at a public hearing, the hearing will not be held.

To assist the transcriber and ensure an accurate record, we

request, if possible, that each person who testifies at a public

hearing provide us with a written copy of his or her testimony. The

public hearing will continue on the specified date until all persons

scheduled to speak have been 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 all persons scheduled to speak and persons present in the

audience who wish to speak have been heard.

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 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

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

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data and assumptions in the analyses for the corresponding Federal

regulations.

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: November 18, 1999.

Tim L. Dieringer,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 99-30884 Filed 11-26-99; 8:45 am]

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