[Federal Register Volume 64, Number 48 (Friday, March 12, 1999)]
[Proposed Rules]
[Pages 12269-12277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6109]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR part 938
[PA-124-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), as amended. Pennsylvania has submitted this
proposed amendment to reflect changes made to the Pennsylvania Surface
Mining Conservation and Reclamation Act (PASMCRA) by Acts 173 and 43.
The proposed amendment also contains regulations added, amended or
deleted in responses to these changes. This proposal modifies some
requirements and adds other requirements dealing with remining and
reclamation, postmining discharges, and water supply protection/
replacement.
DATES: Written comments must be received by 4:00 p.m., E.D.T. April 12,
1999. If requested, a public hearing on the proposed amendment will be
held on April 6, 1999. Requests to speak at the hearing must be
received by 4:00 p.m, E.D.T., on March 29, 1999.
ADDRESSES: Written comment 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.
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 address listed below during normal
[[Page 12270]]
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.
Pensylvania 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 938.25.
II. Discussion of the Proposed Amendment
By letter dated December 18, 1998 (Administrative Record No. PA-
853.01), the Pennsylvania Department of Environmental Protection
(PADEP) submitted a proposed amendment to its program pursuant to
remining and reclamation, postmining discharges, and water supply
protection/replacement. The proposal included two documents:
``Provisions of Pennsylvania's Statute--Surface Mining Conservation and
Reclamation Act--Submitted for Program Amendment,'' and ``Provisions of
Pennsylvania's Regulations--25 Pa. Code Chapters 86-90--Submitted for
Program Amendment.''
Pennsylvania enacted Act 173 in 1992 and Act 43 in 1996. These Acts
amended PASMCRA. In the document titled ``Provisions of Pennsylvania's
Statute--Surface Mining Conservation and Reclamation Act--Submitted for
Program Amendment,'' PADEP indicated that not all of the changes to
PASMCRA resulting from Acts 173 and 43 are relevant to Pennsylvania's
approved program. Only changes that are relevant to the approved
program are being submitted for program amendment. These changes are
summarized below.
PASMCRA
Under Sec. 3. ``Definitions,'' PADEP is proposing to add
definitions for ``Government-financed Reclamation Contract,'' ``Total
Project Costs,'' and ``No-cost Reclamation Contract''. The amendment
proposes to amend the definition for ``Surface Mining Activities,'' by
specifically excluding from the definition the following four
activities: (1) extraction of coal or coal refuse removal pursuant to a
government-financed reclamation contract for the purposes of section
4.8, (2) extraction of coal as an incidental part of Federal, State or
local government highway construction pursuant to regulations
promulgated by the Environmental Quality Board, (3) the reclamation of
abandoned mine lands not involving extraction of coal or spoil disposal
under a written agreement with the property owner and approved by the
department, and (4) activities not considered to be surface mining as
determined by the United States Office of Surface Mining Reclamation
and Enforcement and set forth in department regulations.
PADEP is proposing to amend PASMCRA Sec. 3.1, ``Operator's License;
Withholding or Denying Permits or Licenses; Penalty.'' The proposed
changes deal with licensing requirements for surface and underground
operators and changes that relate to ownership and control and the
criteria for permit issuance.
PADEP is proposing to amend PASMCRA Sec. 4 titled, ``Mining Permit;
Reclamation Plan; Bond.'' In subsection (a) this amendment proposes to
replace the term ``minerals'' with the term ``coal.'' Lesser vegetation
standards for proposed remining areas previously disturbed by surface
mining activities that were not reclaimed to the standards of PASMCRA
are discussed in subsection (a)(2). Subsection (d) adds life insurance
policies, annuities and trust funds to the list of acceptable forms of
collateral bonds. Subsection (d)(2) gives the Department the authority
to establish new forms of financial assurance in the bonding program,
including financial assurance for postmining discharges. Subsection (g)
allows any person with an interest in the bond to apply for a bond
release. New subsections (g.1), (g.2) and (g.3) are proposed to be
added to PASMCRA. These subsection allow bond release in situations
where there is a postmining discharge associated with the permit and
the permittee provides financial assurance for long-term treatment of
the discharge. Bond release in contingent upon the construction of
passive treatment systems and the establishment of a site-specific
trust fund for each discharge. Subsection (h) is proposed to be amended
to define bond forfeiture procedures and surety reclamation of bond
forfeiture sites.
PADEP is proposing to amend PASMCRA Sec. 4.2 titled ``General Rule
Making; Health and Safety.'' Subsection f(2) is amended to assign
responsibility for replacing water supplies affected by surface mining
activities. Under certain conditions defined in this subsection, a mine
operator is presumed to be liable for water loss, contamination or
diminution. Section (i) is a new subsection added to define PADEP's
authority to enter property to conduct inspections or investigations.
PADEP is proposing to amend PASMCRA Sec. 4.6 titled, ``Remining of
Previously Affected Areas.'' The bond release procedures under section
(i) were modified to make the amount of bond released at each stage of
reclamation the same as specified in PASMCRA Sec. 4(g). The amendment
to subsection (j) changes the revegetation success standard that PADEP
is authorized to require when it determines a different standard is
integral to the proposed pollution abatement plan.
PADEP is proposing to amend PASMCRA Sec. 4.7, ``Anthracite Mine
Operators Emergency Bond Fund,'' to open the emergency bond fund to
anthracite surface coal mine operators. The fund is presently open only
to deep mine operators.
PADEP is proposing to add Sec. 4.8 to PASMCRA. This section is
titled, ``Government-financed Reclamation Contracts Authorizing
Incidental and Necessary Extraction of Coal or Authorizing Removal of
Coal Refuse.'' Subsection (a) of this proposed addition provides the
circumstances under which a person may engage in extraction of coal or
removal of coal refuse pursuant to a government-financed reclamation
contract. These activities will not require a surface mining permit if
the person engaging in these activities demonstrates eligibility to
secure special authorization pursuant to this section. PADEP will be
responsible for determining eligibility.
Subsection (b) of proposed Sec. 4.8 states the conditions under
which a person is eligible to secure a special authorization.
Subsection (b)(1) requires the contractor or any related party or
subcontractor to have no history of past or continuing violations which
show lack of ability to comply with the act or
[[Page 12271]]
rules. For the purposes of this section, the term ``related party''
means any partner, associate, officer, parent corporation, affiliate or
person by or under common control with the contractor. Subsection
(b)(2) provides that the person has submitted proof that any violation
related to the mining of coal by the contractor or any related party or
subcontractor which will act under its direction has been corrected or
is in the process of being corrected. For purposes of this section, the
term ``related party'' means any partner, associate, officer, parent
corporation, subsidiary corporation, affiliate or person by or under
common control with the contractor. Subsection b(3) provides that the
person has submitted proof that any violation by the contractor or by
any person owned or controlled by the contractor or by a subcontractor
which acts under its direction of any law, rule or regulation of the
United States or any state pertaining to air or water pollution has
been corrected or is in the process of being satisfactorily corrected.
Subsection b(4) provides that the person or any related party or
subcontractor which will act under the direction of the contractor has
no outstanding unpaid civil penalties which have been assessed for
violations of either this act or the Clean Streams Law (Pennsylvania
Law (P.L.) 1987, No. 394) in connection with either surface mining or
reclamation activities. Subsection b(5) provides that the person or any
related party or subcontractor which will act under the direction of
the contractor has not been convicted of a misdemeanor or felony under
this act or the acts set forth in subsection (e) and has not had any
bonds declared forfeited by the department.
Subsection (c) establishes the conditions under which any eligible
person who proposes to engage in extraction of coal or in removal of
coal refuse pursuant to a government-financed reclamation contract may
request and secure special authorization from the department to conduct
such activities under this section. A special authorization can only be
obtained if a clause is inserted in a government-financed reclamation
contract authorizing such extraction of coal or authorizing removal of
coal refuse and the person requesting such authorization has
affirmatively demonstrated to the department's satisfaction that he has
satisfied the provisions of this section. A special authorization shall
only be granted by the department prior to the commencement of
extraction of coal or commencement of removal of coal refuse on a
project area. This section further lists factors that must be
demonstrated in order to be considered for a special authorization.
Subsection (d) provides that the contractor will pay any applicable
per-ton reclamation fee established by the United States Office of
Surface Mining Reclamation and Enforcement for each ton of coal
extracted pursuant to a government-financed reclamation project.
Subsection (e) provides that prior to commencing extraction of coal
or commencement of removal of coal refuse pursuant to a government-
financed reclamation project, the contractor shall file with the
department a performance bond payable to the Commonwealth and
conditioned upon the contractor's performance of all the requirements
of the government-financed reclamation contract, this act, the Clean
Streams law, the Air Pollution Control Act (1959 P.L. 2119, No. 787),
the Coal Refuse Disposal Control Act (P.L. 1040, No. 318), the Dam
Safety and Encroachments Act (P.L. 1375, No. 325), and the Solid Waste
Management Act (P.L. 380, No. 97). An operator posting a bond
sufficient to comply with this section shall not be required to post a
separate bond for the permitted area under each of the above acts. For
government-financed reclamation contracts other than a no-cost
reclamation contract, the criteria for establishing the amount of the
performance bond shall be the engineering estimate, determined by the
department, of meeting the environmental obligations enumerated above.
The performance bond which is provided by the contractor under a
contract other than a government-financed reclamation contract shall be
deemed to satisfy the requirements of this section provided that the
amount of the bond is equivalent to or greater than the amount
determined by the criteria set forth in this subsection. For no-cost
reclamation projects which the reclamation schedule is shorter than two
(2) years the bond amount shall be a per acre fee, which is equal to
the department's average per acre cost to reclaim abandoned mine lands;
provided, however, for coal refuse removal operations, the bond amount
shall only apply to each acre affected by the coal refuse removal
operations. For long-term, no-cost reclamation projects in which the
reclamation schedule extends beyond two (2) years, the department may
establish a lesser bond amount. In these contracts, the department may
in the alternative establish a bond amount which reflects the cost of
the proportionate amount of reclamation which will occur during a
period specified.
Subsection (f) provides that the department shall insert in
government-financed reclamation contracts conditions which prohibit
coal extraction pursuant to government-financed reclamation in areas
subject to the restrictions of section 4.2 except as surface coal
mining is allowed pursuant to that section.
Subsection (g) provides that any person engaging in extraction of
coal pursuant to a no-cost government-financed reclamation contract
authorized under this section who affects a public or private water
supply by contamination or diminution shall restore or replace the
affected supply with an alternate supply adequate in quantity and
quality for the purposes served.
Subsection (h) provides that extraction of coal or removal of coal
refuse pursuant to a government-financed reclamation contract cannot be
initiated without the consent of the surface owner for right of entry
and consent of the mineral owner for extraction of coal. Nothing in
this section shall prohibit the department's entry onto land where such
entry is necessary in the exercise of police powers.
PADEP is proposing to add Sec. 4.12 to PASMCRA. This section is
titled, ``Financial Guarantees to Insure Reclamation; Payments to the
Remining Financial Assurance Fund.'' Subsection (a) authorizes PADEP to
establish programs to provide financial guarantees to insure
reclamation to operators who reclaim abandoned mine lands through
remining. This section describes how the programs will be funded and
requires PADEP to establish underwriting methods.
Subsection (b) provides that premium payments will be deposited
into the Remining Financial Assurance Fund and will be reserved in a
special account to be used in case of operator forfeiture. When the
special account becomes actuarially sound, excess payments may be used
pursuant to section 18(a.1) and (a.2).
Subsection (c) provides that payments under this subsection shall
excuse the operator from the requirement to post a bond under this act
with respect to the remining permit for which payment is made.
Subsection (d) provides that the financial guarantees program may
be discontinued immediately and notice published in the Pennsylvania
Bulletin if twenty-five per cent or greater of the outstanding bond
obligation for the financial guarantees program is subject
[[Page 12272]]
to forfeiture. The special account established in the Remining
Financial Assurance Fund for the financial guarantees program shall be
the sole source of funds underwriting the financial guarantees program,
and the Commonwealth shall not be obligated to expend any funds beyond
the amount of the special account.
PADEP is proposing to add Sec. 4.13 to PASMCRA. This section is
titled, ``Reclamation Bond Credits.'' Subsection (a) provides that a
bond credit, financially backed by a special account for that purpose
established in section 18(a.2), in the form of a bond letter, may be
issued by the department to a licensed mine operator for voluntary
reclamation of abandoned mine lands as approved by the department. This
section specifies the conditions that PADEP will use to determine
whether or not to issue a bond credit.
Subsection (b) provides that an operator may apply bond credits
which have been issued by the department against any reclamation bond
obligation selected by the operator on unmined or previously mined
areas except as specified in this section.
Subsection (c) provides that the department may approve utilization
of a bond credit in combination with conventional collateral or surety
agreements.
Subsection (d) provides that the department may require, as a
condition of granting the bond credit, that the operator post a
contract performance bond to insure that the operator completes the
reclamation proposed to result in the bond credit. The performance bond
is to be at least in an amount necessary to ensure reclamation of those
areas proposed to be reclaimed and shall be released by the department
upon completion of the work described in the approved reclamation plan.
Subsection (e) provides that bond credits are transferable to
another qualified operator approved by the department.
Subsection (f) provides that the special account established in the
Remining Financial Assurance Fund for the bond credit program shall be
the sole source of funds underwriting the bond credit program, and the
Commonwealth shall not be obligated to expend any funds beyond the
amount of the special account.
Subsection (g) provides that bond credits earned by a qualified
operator may be used on a single permit or on multiple permits,
whichever the operator chooses. A bond credit may be used two times;
however, the bond credit cannot be used a second time until the
department releases the bond credit from its first use. Any bond credit
that is not used within five years from the date that it is earned or
released will expire, including bond credits that have been
transferred.
PADEP is proposing to amend Sec. 18 of PASMCRA. This section is
titled, ``surface Mining Conservation and Reclamation Fund; Remining
Environmental Enhancement Fund; Remining Financial Assurance Fund;
Department Authority for Awarding of Grants.'' Subsection (a) is
amended to include section (a.1), a.2), (a.3) and (a.4). These
subsections address the use of funds for the remining and reclamation
incentives created by the amendments to PSAMCRA discussed earlier.
These amendments create two special funds in the State Treasury to be
known as the ``Remining Environmental Enhancement Fund,'' and the
``Remining Financial Assurance Fund.'' These subsections describe the
source of funding for the funds and indicate that the Remining
Environmental Enhancement Fund is to be used for operating a remining
and reclamation incentive program, including designating areas suitable
for reclamation by remining and establishing and operating a remining
operator's assistance program, but not including a bond credit or
financial guarantees program. The Remining Financial Assurance Fund is
to be used to provide financial assurance for the reclamation bond
credit program set forth in section 4.13 and for the financial
guarantees program set forth in section 4.12. Requirements for operator
participation in the funds are listed.
Subsection (f) was modified to allow any licensed mine operator to
propose reclamation of a bond forfeiture area.
Subsection (g) modifies the internal rules for the Mining and
Reclamation Advisory Board, PADEP's advisory committee on matters
relating to surface coal mining and reclamation.
PADEP is proposing to amend Sec. 18.7 of PASMCRA, titled,
``Creation of Small Operator's Assistance Fund.'' The amendment limits
PADEP's use of Small Operator Assistance Funds to uses authorized by
the Office of Surface Mining Reclamation and Enforcement and the
Federal Surface Mining Control and Reclamation Act of 1977.
PADEP is proposing to add Sec. 18.9 to PASMCRA. This new section is
titled, ``Search Warrants'' and provides that the PADEP may apply for a
search warrant for the purposes of inspecting or examining any
property, premises, place, building, book, record, or other physical
evidence, of conducting tests, of taking samples, or of seizing books,
records and other physical evidence. The warrant shall be issued on
probable cause. The amendment further defines sufficient probable
cause.
PADEP is proposing to add Sec. 18.10 to PASMCRA. This new section
is titled, ``Construction of Act'' and signifies PADEP's intent that
PASMCRA not violate the Federal Clean Water Act or the Federal Surface
Mining control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.).
The additions and changes to regulations proposed by the amendment
are described as follows:
The amendment will result in changes to the following existing
provisions of the Pennsylvania program:
[Title 25 of the PA Code]
86.142 87.1 88.1 89.5
86.151-152 87.119 88.107
86.156-86.158 84.147 88.121
(inclusive)
86.161 88.209
86.168
86.171
86.174-86.175
86.182
86.195
[[Page 12273]]
The following sections are proposed to be added to the Pennsylvania
program:
[Title 25 of the PA Code]
86.251-86.253 (inclusive)
86.281-86.284 (inclusive)
86.291-86.295 (inclusive)
86.351-86.359 (inclusive)
The following sections are proposed to be deleted:
[Title 25 of the PA Code]
87.11-87.21 88.92 89.52-89.53 90.102-90.103
(inclusive)
87.102-87.103 88.93
88.187-88.188
88.292-88.293
A brief summary of the proposed changes and additions to the
Pennsylvania program are found below.
Chapter 86
The changes made to 25 PA Code 86.142 ``Definitions,'' are the
additions of definitions for ``Annuity,'' ``Trustee,'' and ``Trust
Fund.''
A revision to 25 PA Code 86.151 ``Period of Liability,'' provides
that liability under bonds related to the risk of water pollution from
coal refuse disposal activities shall continue for a period of time
after completion of the activities. The period of time will be
determined by PADEP on a case-by-case basis. Subsection (j) was added
to emphasize an operator's responsibility to treat discharges of mine
drainage emanating from or hydrologically connected to the site.
A revision proposed to subsection (a) of 25 PA Code 86.152, ``Bond
Adjustments,'' provides that PADEP may require additional bond if the
cost of reclamation, restoration or abatement work increases so that an
additional amount of bond is necessary. Subsection (b) is modified to
include the estimated costs of restoration or abatement
responsibilities as factors to be satisfied when an operator is seeking
a bond reduction.
A revision proposed to 25 PA Code 86.157, ``Form of the Bond,''
provides for the new types of collateral bonds allowed by proposed
changes to PASMCRA. These bond types include annuities, trust funds,
and life or property and casualty insurance.
Two revisions are proposed for 25 PA Code 86.157, ``Special Terms
and Conditions for Surety Bonds.'' Subsection (3) is revised to read as
follows: ``The Department will not accept a single bond from a surety
company for a permittee if the single bond is in excess of the surety
company's maximum single risk exposure as provided in The Insurance
Company Law of 1921 (40 P.S. Secs. 341-991), unless the surety company
complies with The Insurance Company Law of 1921 for exceeding the
maximum single risk exposure.'' Subsection (4) is proposed to be
deleted and the remaining subsections are proposed to be renumbered
accordingly.
Several revisions are proposed for 25 PA Code 86.158, ``Special
Terms and Conditions for Collateral Bonds.'' Subsection (c)(6) was
modified to read, ``The Department will only accept certificates of
deposit from banks or banking institutions licensed or chartered to do
business in the United States.'' New subsections (e) and (f) were
added. Subsection (e) specifies the conditions that must be fulfilled
to secure a collateral bond in the form of a life insurance policy.
Subsection (f) specifies the conditions that must be met to secure a
collateral bond in the form of an annuity or a trust fund. Finally the
subsection that was formerly labeled as (e) is proposed to be
renumbered as subsection (g).
A sentence is proposed to be added at the end of section 25 PA Code
86.161, ``Phased Deposits of Collateral.'' The sentence is, ``Interest
accumulated by phased deposits of collateral shall become part of the
bond, and may be used to reduce the amount of the final phased
deposit.''
Several revisions are proposed for 25 PA Code 86.168, ``Terms and
Conditions for Liability Insurance.'' The revision to subsection (a)
requires a permittee to submit proof of liability insurance coverage
before a license is issued. The revision to subsection (b) requires
liability insurance to be written on an occurrence basis and to provide
for bodily injury. Subsection (c) adds a sentence that states, ``The
limits of the rider shall be at least equivalent to the limits of the
general liability portion of the policy.'' Subsection (d) requires the
insurance policy to include a rider requiring notification to PADEP
within 30 days prior to substantive changes in the policy or prior to
termination or failure to renew. Subsection (e) increases the minimum
insurance coverage for bodily injury to $500,000 per person and $1
million aggregate and minimum insurance coverage for property damage to
$500,000 for each occurrence and $1 million aggregate. Subsection (f)
changes the regulatory action to be taken in the event a permittee
fails to maintain the insurance. If the insurance is not maintained,
PADEP will issue a notice of intent to suspend the license or permit.
If the proof of insurance is not submitted within 30 days, the
Department will suspend the license or permit.
A proposed revision to 25 PA Code 86.171, ``Procedures for Seeking
Release of Bond,'' allows any person having an interest in the bond to
file an application with PADEP for bond release. Subsection (b)(6) is
added which provides that the newspaper advertisement for bond release
must state whether any postmining pollutional discharges have occurred
and describe the type of treatment provided for the discharges. The
former subsection (b)(6) has been renumbered to (b)(7). Subsection
(f)(4) changed a reference from subsection (g) to subsection (h).
Subsection (g) has been added. This subsection states, ``If the
permittee is unwilling or unable to request bond release, and if the
criteria for bond release have been satisfied, the Department may
release the bond by following the procedures of subsections (a)(2),
(b), (d)-(f).'' Former subsection (g) has been renumbered to subsection
(h).
Some minor modifications are proposed for 25 PA Code 86.174,
``Standards for Release of Bonds.'' The proposed regulation replaces
the Roman Numeral ``I'' with the Arabic ``1'' in subsection (a), and
inserted the word ``Additional'' at the beginning of subsection (d).
Some minor modifications are also made to 25 PA Code 86.175,
``Schedule for Release of Bond.'' Subsection (a)
[[Page 12274]]
provides that no bond will be released until the Department finds that
the permittee has complied with Secs. 86.171, 86.172 and 86.174
(relating to procedures for seeking release of bond; criteria for
release of bond; and standards for release of bonds). Subsection (b)(3)
has been modified by deleting the following phrase, ``. . . and final
inspection and procedures of Sec. 86.171 (relating to procedures for
seeking release of bond) have been satisfied.''
Several modifications to 25 PA Code 86.182, ``Procedures,'' have
been proposed. Subsection (a)(3) has been added. This section provides
that if bond forfeiture is required, PADEP will notify the surety of
the requirement to pay the amount of the bond to PADEP within 30 days.
The money will be held in escrow. If court of competent jurisdiction
finds that the Commonwealth was not entitled to all or a portion of the
amount forfeited, the interest shall accrue proportionately to the
surety in the amount determined to be improperly forfeited. Former
subsection (a)(3) has been renumbered to (a)(4). Subsection (d) has
been added. This subsection provides that a surety can reclaim a site
in lieu of paying the amount of forfeited bond within 30 days. The
remainder of this subsection provides the procedures to be followed if
a surety elects to reclaim a site. Former subsections (d)-(f) are
renumbered as subsections (e)-(g).
A minor modification was made to 25 PA Code 86.195, ``Penalties
Against Corporate Officers.'' A cross-reference was revised from
Sec. 87.14 to Sec. 86.353 to be consistent with other changes to
Chapter 86.
PADEP is proposing to add numerous sections dealing with incentives
to encourage remining of abandoned mine lands and bond forfeiture
sites. These sections will be summarized briefly below.
25 PA Code 86.251, ``Purpose,'' gives the purpose of this section
as encouraging remining to eliminate hazards to human health and
safety, abating pollution of surface and groundwaters and the
contribution of sediment to adjacent areas, restoring land to
beneficial uses and recovering remaining coal resources.
25 PA Code 86.252, ``Definitions,'' adds definitions for
``Abandoned mine lands,'' ``Act, ``Bond credit,'' ``Financial
guarantee,'' ``Remining,'' ``Remining area,'' and ``Tangible net
worth.''
25 PA Code 86.253, ``Operator and Project Qualification,''
subsection (a) gives the requirements an operator must meet to
participate in the remining and reclamation incentives program.
Subsection (b) provides the requirements an operator must demonstrate
to get a project approved under the remining and reclamation incentives
program.
PADEP proposes to add 25 PA Code 86.281, ``Financial Guarantees to
Insure Reclamation--General.'' This section has four subsections.
Subsection (a) describes a special account in the Remining Financial
Assurance Fund to be used to financially assure bonding. Subsection (b)
provides that operators must demonstrate their eligibility to
participate in the program. Subsection (c) was not submitted for
approval. Subsection (d) provides limits on the amount of financial
guarantees the Department will issue on permits. Subsection (e)
describes use of the Fund to complete reclamation of forfeited sites.
25 PA Code 86.282, ``Participation Requirements,'' describes
demonstrations required of an operator to be able to participate in the
program. The operator must demonstrate one of the following: Under
subsection (a)(1), the operator must be able to post a collateral bond
and demonstrate appropriate experience in coal mining and reclamation,
under subsection (a)(2) the operator must be able to obtain a surety
bond or letter of credit collateral bond, or under subsection (a)(3)
the operator must prove eligibility to self-bond. Subsection (b)
provides that an operator will not be approved to participate in the
program when the financial guarantees exceed limits established in 25
PA Code 86.281(d). Subsection (c) provides that any person submitting
false information in the financial test will render the operator
ineligible to participate in the program.
25 PA Code 86.283, ``Procedures,'' lists the criteria that govern
an operator's participation in the program. Subsection (a) discusses
payments to the fund. Subsection (b) requires the operator to make the
annual payment until the bond is reduced or released. Subsection (c)
provides that an operator approved to participate in the program is not
required to pay the reclamation fee for the remining area. Subsection
(d) indicates the Department will issue a letter to the operator
specifying the amount of money in the special account which has been
reserved as collateral for the reclamation of the remining area.
Subsection (e) provides the obligation will be reduced or released
prior to any other bond submitted by the operator to cover the
reclamation obligations of that permit.
25 PA Code 86.284 is titled ``Forfeiture.'' Subsection (a) provides
that a bond forfeiture will result in the Department declaring forfeit
the amount reserved for the operator in the special fund. Subsection
(b) indicates that forfeiture will not relieve the operator from
meeting requirements of PASMCRA. Subsection (c) indicates that on
declaration of forfeiture, the Department will use bond money and
reserve funds to complete reclamation of the minesite. Subsection (d)
provides that the financial guarantees program will be discontinued
immediately if 25% or more of the total outstanding financial
guarantees are declared forfeit. Subsection (e) lists forfeiture
actions that could cause the financial guarantees program to be
suspended.
25 PA Code 86.291 is titled, ``Financial Assurance for Bond
Credit--General.'' Subsection (a) describes a special account within
the Remining Financial Assurance Fund that may be used to assure bond
obligations of operators who voluntarily complete a reclamation project
under the bond credit program. Subsection (b) describes how the bond
credit will work. Subsection (c) provides that when a permit where a
bond credit is being used is declared forfeit, the reserve funds will
be used by the Department in accordance with the procedures and
criteria in Secs. 86.187-86.190.
25 PA Code 86.292 is titled ``Procedures and Requirements.''
Subsection (a) lists the steps a mining operator must take to apply for
a bond credit. Subsection (b) indicates that if the proposed
reclamation activities have the potential for offsite impacts, the
Department may require as a condition of approving the reclamation
plan, a performance bond in the amount necessary to ensure the operator
completes the reclamation as proposed. Subsection (c) lists the
provisions of an agreement between the operator and the Department that
will be executed on approval of the proposed reclamation plan.
Subsection (d) discusses the conditions under which the bond credit may
be amended or terminated. Subsection (e) describes the enforcement
actions the Department may take against an operator who fails to
complete the reclamation as specified in the agreement.
25 PA Code 86.293, ``Issuance,'' provides that a bond credit letter
will be issued by the Department upon a finding that the operator has
met the terms of the agreement.
25 PA Code 86.294 is titled ``Uses and Limitations.'' Subsection
(a) indicates an operator may apply a bond credit to an original or
existing bond. Subsection (b) indicates an operator may use a bond
credit on a single permit or multiple permits. Subsection (c) indicates
that a
[[Page 12275]]
bond credit may be used in combination with other types of bonds.
Subsection (d) indicates a bond credit may be transferred to a
qualified operator. Subsection (e) provides that a bond credit may not
be used to bond water loss or to bond long-term water treatment.
Subsection (f) indicates procedures an operator must follow if a
discharge not meeting effluent limits develops on a permit where a bond
credit is being used. Subsection (g) indicates bond credits will be
released prior to any surety or collateral bonds. Subsection (h)
indicates a bond credit that is not used within five years from the
date it is issued or released will expire.
25 PA Code 86.295 is titled ``Forfeiture.'' Subsection (a)
indicates that the Department will declare forfeit the amount reserved
in the bond credit special account if forfeiture is declared under
Sec. 86.181. Subsection (b) indicates the Department's declaration of
forfeiture does not excuse the operator from meeting the requirements
of this chapter or the act. Subsection (c) indicates that upon
collection of the bond credit, the Department will use bond money and
reserved funds to complete reclamation of the mine site.
25 PA Code 86.351, ``License Requirement,'' provides that a person
who intends to mine coal as an operator must first obtain a mine
operator's license.
25 PA Code 86.352, ``Mine Operator's License Application,'' lists
the information required by the application for license.
25 PA Code 86.353, ``Identification of Ownership,'' lists the
information that must be included in the application for each person
who owns or controls the applicant.
25 PA Code 86.354, ``Public Liability Insurance,'' requires an
applicant to provide a certificate of liability insurance for the term
of the license.
25 PA Code 86.355 is titled ``Criteria for Approval of
Application.'' Subsection (a) describes the circumstances under which
the Department will not issue, renew or amend the license. Subsection
(b) provides the Department will issue a notice of intention not to
issue, renew or amend a license for the reasons in subsection (a).
Subsection (c) indicates the Department will notify the applicant in
writing of its intention not to issue, renew or amend the license and
the opportunity for informal hearing. Subsection (d) indicates that a
person who opposes the Department's decision on issuance, renewal or
amendment of a license has the burden of proof. Subsection (e)
indicates that for the purposes of this section, ``adjudicated
proceeding,'' means a final unappealed order of the Department or a
final order of the EHB or other court of competent jurisdiction.
25 PA Code 86.356 is titled ``License Renewal Requirements.''
Subsection (a) provides for annual renewal of the license. Subsection
(b) requires the application for renewal to be made at least 60 days
before the current license expires. Subsection (c) provides that the
Department will notify the operator 60 days prior to license expiration
of its intent not to renew a license.
25 PA Code 86.358 is titled ``Suspension and Revocation.''
Subsection (a) lists the reasons the Department may suspend or revoke a
license. Subsection (b) indicates that Department will provide an
informal conference before suspending or revoking a license.
25 PA Code 86.359 is titled ``Fees.'' Subsection (a) lists the fees
needed to secure a license. Subsection (b) provides the circumstances
under which a fee may be refunded.
Chapter 87
Several terms were proposed to be added and one was proposed to be
deleted in section 25 PA Code 87.1, ``Definitions.'' Definitions were
proposed to be added for the terms ``De minimis cost increase,''
``Water supply,'' and ``Water supply survey.'' The definition of ``Dry
weather flow'' was proposed to be deleted from this section.
As stated previously, sections 25 PA Code 87.11-87.21 inclusive
were proposed to be deleted from Chapter 87 and moved into Chapter 86.
The proposed amendment renumbers these sections as 25 PA Code 86.351-
86.359 (inclusive).
The amendment proposes to delete 25 PA Code 87.102, ``Hydrologic
Balance: Effluent Limits,'' and 25 PA Code 87.103, ``Precipitation
Event Exemption.''
The amendment proposes to amend 25 PA Code 87.119, ``Hydrologic
Balance: Water Rights and Replacement.'' Subsection (a) provides that
an operator or person engaged in government financed reclamation who
affected a water supply must restore or replace the water supply. This
subsection also lists the criteria a water supply must meet for it to
be considered adequate. Subsection (b) indicates that a surface mine
operator or owner is responsible for pollution within 1000 feet of the
boundaries of areas bonded and affected by coal mining operations
except for haul roads. Subsection (c) lists defenses to the presumption
of liability defined in subsection (b). Subsection (d) requires that
the mine operator or mine owner notify the Department and provide all
information which supports a defense to the presumption of liability.
Subsection (e) allows the Department to use moneys from the Surface
Mining Conservation and Reclamation Fund to restore or replace water
supplies if the Department finds that immediate replacement of the
supply used for potable or domestic purposes is required to protect
public health or safety and the mine owner or operator has failed to
comply with Departmental orders. Subsection (f) states the Department
will recover costs of restoration or replacement from a surface mine
operator or mine owner. Subsection (g) provides that a surface mine
operator or mine owner who successfully appeals a Department order is
entitled to recovery of reasonable costs. Subsection (h) permits a
landowner, water supply user or water supply company to pursue other
remedies that may be available in law or in equity. Subsection (i)
provides that a Department order issued under this section which is
appealed will not be used to block issuance of new permits or the
release of bonds when a stage of reclamation work is completed.
Subsection (j) provides that nothing in this section limits the
Departments authority under section 4.2(f)(1) of SMCRA. Subsection (k)
provides that a surface mining operation conducted under a surface
mining permit issued by the Department before February 16, 1993, is not
subject to subsections (b)-(i), but is subject to subsections (a) and
(j).
25 PA Code 87.147 is titled ``Revegetation: General Requirements.''
Subsection (b)(1) was added. This subsection provides for a lesser
revegetation success standard for areas proposed to be reaffected when
these areas were previously disturbed by surface mining activities and
were not reclaimed to the standards of SMCRA.
Chapter 88
Three new definitions are proposed to be added to Chapter 88 and
one is proposed to be deleted. The terms proposed for addition to 25 PA
Code 88.1 are, ``De minimis Cost Increase,'' ``Water Supply,'' and
``Water Supply Survey.'' The term ``Dry Weather Flow'' is proposed to
be deleted from 25 PA Code 88.1.
The amendment proposes to delete 25 PA Code 88.92, ``Hydrologic
Balance: Effluent Limits,'' and 25 PA Code 88.93, ``Precipitation Event
Exemption.''
The amendment proposes to amend 25 PA Code 88.107, ``Hydrologic
[[Page 12276]]
Balance: Water Rights and Replacement.'' The proposed amendment
language is identical to that proposed for 25 PA Code 87.119 summarized
above.
25 PA Code 88.121 is titled, ``Revegetation: General Requirement.''
Subsection (b) is proposed to be amended to provide for a lesser
revegetation success standard for areas proposed to be reaffected when
these areas were previously disturbed by surface mining activities and
were not reclaimed to the standards of SMCRA.
The amendment proposes to delete 25 PA Code 88.187, ``Hydrologic
Balance: Effluent Limits,'' and 25 PA Code 88.188, ``Precipitation
Event Exemption.''
25 PA code 88.209 ``Revegetation: General Requirement'' subsection
(b) is proposed to be amended to provide for a lesser revegetation
success standard for areas proposed to be reaffected when these areas
were previously disturbed by surface mining activities and were not
reclaimed to the standards of SMCRA.
The amendment proposes to delete 25 PA Code 88.292,``Hydrologic
Balance: Effluent Limits,'' and 25 PA Code 88.293, ``Precipitation
Event Exemption.''
Chapter 89
One definition, ``Dry Weather Flow,'' is proposed to be deleted
from 25 PA Code 89.5.
The amendment proposes to delete 25 PA Code 89.52, ``Water Quality
Standards, Effluent Limitations and Best Management Practices,'' and 25
PA Code 89.53, ``Precipitation Event Exemption.''
Chapter 90
One definition, ``Dry Weather Flow,'' is proposed to be deleted
from 25 PA Code 90.1.
The amendment proposes to delete 25 PA Code 90.102, ``Hydrologic
Balance: Water Quality Standards, Effluent Limitations and Best
Management Practices,'' and 25 PA Code 90.103, ``Precipitation Event
Exemption.''
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 884.15, 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 March 29, 1999. 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 meetings 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 extend 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
constituent major Federal actions within the meaning of section
102(c)(C) of the National Environmental Policy Act (42 U.S.C.
4332(c)(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 determines 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
[[Page 12277]]
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
List of Subjects in 30 CFR Part 938
Intergovernment relations, Surface mining, Underground mining.
Dated: March 5, 1999.
Allen D. Klein,
Appalachian Regional Coordinating Center.
[FR Doc. 99-6109 Filed 3-11-99; 8:45 am]
BILLING CODE 4310-05-M
