Pennsylvania Regulatory Program

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]

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