[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Rules and Regulations]
[Pages 14610-14619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7282]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-121-FOR]
Pennsylvania Abandoned Mine Land Reclamation Program;
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions, a proposed
amendment to the Pennsylvania Abandoned Mine Land Reclamation (AMLR)
Plan (hereinafter referred to as the AMLR Plan) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et
seq., as amended. The proposed amendment adds a new section ``F''
entitled Government Financed Construction Contracts (GFCC) to authorize
the incidental removal of coal and coal refuse at Abandoned Mine Land
(AML) sites that would not otherwise be mined and reclaimed under the
Title V program, along with relevant statutory provisions authorizing
the AMLR Plan amendments. The proposed amendment also includes the
Program Requirements and Monitoring Requirements related to the use of
GFCC for that purpose. The proposed amendment is intended to improve
the efficiency of the Pennsylvania program by allowing the government-
financed construction exemption in Section 528 of SMCRA to be applied
in cases involving less than 50% financing only in the limited
situation where the construction constitutes a government approved and
administered abandoned mine land reclamation project under Title IV of
SMCRA. The amendment is also intended to authorize the use of excess
spoil from a valid, permitted coal mining operation for the reclamation
of an abandoned unreclaimed area outside of the permit area.
EFFECTIVE DATE: March 26, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director,
Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg
Transportation Center (Amtrack) 415 Market Street, Harrisburg,
Pennsylvania 17101. Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Pennsylvania Program
On July 30, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania AMLR Plan. Background on the Pennsylvania
AMLR Plan, including the Secretary's findings and the disposition of
comments can be found in the July 30, 1982 Federal Register (47 FR
33081). Subsequent actions concerning the AMLR Plan amendments are
identified at 30 CFR 938.20 and 938.25.
On July 31, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. Background information on the
Pennsylvania program can be found in the July 30, 1982 Federal Register
(47 FR 33050). Subsequent actions concerning the conditions of approval
and program amendments are identified at 30 CFR 938.11, 938.12, 938.15
and 938.16.
II. Description of the Proposed Amendment
By letter dated November 21, 1997 (Administrative Record No. PA-
855.00), the Pennsylvania Department of Environmental Protection
(PADEP) submitted proposed Program Amendment No. 2 to the Pennsylvania
AMLR Plan. In addition, PADEP also submitted the following documents:
Introduction; Basis of Authority for the Proposed Amendment; AML
Amendment Conformance with 30 CFR Section 884.13; Assistant Counsel's
Opinion of Authority for GFCC; PADEP Organization Chart; the Office of
Mineral Resources Management Organization Chart; and Public
Participation in Part F of the Reclamation Plan (Amendment No. 2). The
proposed amendment is intended to improve the efficiency of the
Pennsylvania program by allowing the Government-financed construction
exemption in Section 528 of SMCRA to be applied in certain cases
involving less than 50% government financing. Pennsylvania also
proposed to authorize the use of excess spoil from a valid, permitted
coal mining operation for the reclamation of an abandoned unreclaimed
area outside of the permit area.
OSM announced receipt of the proposed amendment in the December 29,
1997, Federal Register (62 FR 67590), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on January 28, 1998.
OSM's review of the proposed amendment determined that several
items required clarification. As a result, a letter requesting
clarification on three items pertaining to placement of excess spoil on
Abandoned Mine Lands was sent to Pennsylvania dated June 5, 1998
(Administrative Record No. PA 855.08). Pennsylvania initially responded
in its letter dated June 17, 1998, (Administrative Record No. PA
855.09), that it would require additional time to respond to OSM's
request, and that it expected to provide a response by July 15. A
response was received from Pennsylvania in its letter dated July 7,
[[Page 14611]]
1998 (Administrative Record No. PA-855.10). Therefore, OSM announced a
reopening of the public comment period until August 12, 1998, in the
July 28, 1998, Federal Register (63 FR 40237). No comments were
received. However, OSM subsequently informed Pennsylvania that its
program appeared to lack the statutory authority to implement the
exemption for incidental coal removal pursuant to government-financed
reclamation projects. Therefore, in letters, in letters dated October 8
and October 13, 1998 (Administrative Record No. PA 855.12),
Pennsylvania subsequently submitted portions of its state law which it
believes provides specific authorization to implement the proposed
changes to AMLR Plan. Pennsylvania requested to have the statutory
provisions included as part of Pennsylvania's Abandoned Mine
Reclamation Plan Amendment. The proposed additions were published in
the November 3, 1998, Federal Register (63 FR 59259), and the comment
period was reopened to November 18, 1998. No comments were received.
Since that time, national regulations known as the AML Enhancement Rule
were published in the February 12, 1999, Federal Register (64 FR 7470)
as a final rule to be effective March 15, 1999. OSM found that
Pennsylvania's amendment did not include certain aspects of the AML
Enhancement Rule. Therefore, in a letter to OSM dated March 2, 1999
(Administrative Record No. PA 855.15), Pennsylvania specified the
additional requirements it proposed to be included in its amendment.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15, 732.17, 884.14 and 884.15, are the Director's findings
concerning the proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes and paragraph notations to reflect organizational
changes resulting from this amendment. The proposed amendment consists
of new Part F, Program Requirements, and a Monitoring Program for
GFCC's, both to be added to the AMLR Plan. The proposed amendment also
consists of amendments to the Pennsylvania state code, at 52 P.S.
1396.3 and 1396.4h.
AMLR Plan, Part F: Government Financed Construction Contracts
(1) Incidental Coal Removal--PADEP proposes to authorize the
incidental removal of coal at AML sites that would not otherwise be
mined and reclaimed under the Title V program. Through its management
of the permitting process and knowledge of the status of the AML lands
in Pennsylvania, PADEP plans to enter into agreements with mining
companies and adjacent permit holders to direct the reclamation of AML
lands which involve some incidental removal of coal. Following are (3)
examples of situations where PADEP proposes to utilize the GFCC to
address AML liabilities.
(a) Refuse Pile Reclamation--As a result of an extensive history of
mining in Pennsylvania, thousands of coal refuse piles are scattered
throughout the state in both the bituminous and anthracite fields. In
many cases these piles are unsightly, unsafe and are adding to the
sedimentation and mine drainage pollution of Pennsylvania streams in
areas that are economically deprived because of poor water quality and
general aesthetics.
Depending on the method used to clean the coal and the volume of
material available, these piles have varying degrees of value. Those
piles that are larger in volume and higher in quality have
traditionally been permitted under the Title V Program while piles of
smaller, poorer quality have remained virtually untouched and are not
and will not be likely candidates for permitting. These are the types
of piles that are generally suitable for use in fluidized-bed
combustion processes employed at congeneration plants and the types of
piles that will be reclaimed under the proposed program.
(b) Reclamation of Abandoned Deep Mines--An example specific to
this initiative would be represented by an abandoned deep mine that
includes subsidence problems and acid mine drainage discharges. The
reclamation of this type of site would involve the daylighting of the
deep mined area, the incidental and necessary removal of any coal
encountered, the placement of alkaline material over the area of deep
mine affected, and the construction of some type of passive treatment
system to insure the reduction of pollutional loading from the
discharges. Daylighting is the method of removing coal from a deep mine
by first removing the overburden. Because of the limited amount of coal
available, and the potential water quality liability for the
discharges, this sample site would not be a candidate for a surface
mine permit under the Title V Program.
(c) Unreclaimed High Walls Adjacent to Active Mine Sites--Nearly
all permits issued under the Title V program include varying levels of
remining or are located within close proximity to previously affected
areas located outside of permit boundaries. In some cases coal along
the crop barrier may have gone unmined because of poor quality or high
moisture content. In other cases an additional cut taken off the
highwall may facilitate a reclamation plan that results in a more
suitable post-mining land use or may facilitate an abatement project
(alkaline addition--highwall drains, etc.) that will result in improved
water quality. In those situations where a Title V permit is
impractical due to limited coal recovery or poor coal quality, PADEP
proposes to direct reclamation of these sites through a GFCC which
allows for the incidental removal of coal to complete reclamation of
the AML lands.
(2) Placement of Excess Spoil on Adjacent AML Lands--PADEP proposes
to authorize the placement of excess spoil from active mining
operations on AML sites that would not otherwise be mined and reclaimed
under the Title V program. Through its management of the permitting
process and the knowledge of the status of AML lands in Pennsylvania,
PADEP plans to enter into agreements with mining companies and adjacent
permit holders to direct the reclamation of AML lands adjacent to
permitted operations. The institution of this program will allow PADEP
to maximize its reclamation efforts on AML lands at no expense to the
funding sources for PADEP's AML program. Savings to the AML program
would be used for reclamation at other sites throughout the
Commonwealth.
Pennsylvania was asked to clarify which requirements in the
approved program will apply to the placement of excess spoil on
abandoned mine lands as referenced in the proposed amendment at page 7
where it is stated that the placement of excess spoil on adjacent AML
lands would be approved AML reclamation projects and would therefore
encompass the same time-tested administrative, financial, contractual
and environmental safeguards as any other approved AML projects in the
Commonwealth. OSM requested Pennsylvania either require that these
projects be handled in the same manner as Federally-funded AML
projects, or otherwise identify the administrative, financial,
contractual and environmental safeguards that will be applied to these
``no-cost'' GFCC's, and show how these safeguards will ensure the same
level of environmental protection as that provided by Federally-funded
AML projects. Pennsylvania responded that these projects will be
handled in the same manner as Federally-funded AML projects.
Furthermore, projects that involve the support and involvement of the
District Mining Offices will be
[[Page 14612]]
subject to the additional administrative requirements designed to
address the coordination between the Bureau of Abandoned Mine
Reclamation and the District Mining Offices. Pennsylvania revised page
7 of its proposed amendment to include these clarifications.
(Administrative Record No. PA-855.10).
Pennlsyvania was asked to include in its AMLR Plan provisions to
ensure that excess spoil from Title V operations will not be placed on
approved AML sites in amounts greater than necessary to address the AML
impacts and problems. Pennsylvania responded that it modified its
amendment by adding the following sentence to the end of the first
paragraph on page 6, C.1; after the fourth sentence of the first full
paragraph on page 7; after the first sentence of the last paragraph on
page 9; after the first sentence of Part F(2) on page 13; and after the
first sentence of third paragraph under Program Requirements on page
15: ``The amount of excess spoil from title V operations will not
exceed that amount necessary to address the AML impacts and problems.''
(Administrative Record No. PA-855.10).
AMLR Plan, Part F: Program Requirements
A. The Department will solicit and accept proposals to enter into a
GFCC for the purpose of reclamation of abandoned mine lands, some of
which may involve the incidental and necessary removal of coal.
To be an ``eligible person'', for purposes of entering into a GFCC,
the person must clear the Department's standard compliance with the
Applicant Violator System (AVS) checks. In addition, the person must
clear a check through the Commonwealth's contractor responsibility
program. (See summary of 52 P.S. 1396.4h, under the heading ``STATUTORY
PROVISIONS'', below.)
A GFCC under the terms of this amendment, is limited to those
situations where a contractor proposes to enter into an agreement to
perform reclamation on abandoned mine lands with the incidental and
necessary removal of coal or to use excess spoil from a permitted site
to reclaim an abandoned mine land. Reclamation should also include,
where feasible, the installation of passive treatment systems and/or
other measures to mitigate pre-existing discharges. No processing of
coal will be conducted on-site.
Coal refuse ash may be returned to the site consistent with a
general permit issued by the PADEP. General permits are issued by
Pennsylvania's Bureau of Water Quality Protection as authorized by its
Solid Waste Management Act (35 P.S. Secs. 6018.101 et seq) and 25 Pa
Code Chapters 77, 86-90 and 271.
Sewage sludge may be utilized for site reclamation consistent with
a beneficial use order or land reclamation permit. Beneficial use and
land reclamation permit are also authorized by Pennsylvania's Solid
Waste Management Act.
PADEP will conduct an expeditious review of the proposal for
adequacy of the monitoring plan, erosion and sedimentation control
plan, operation plan, and reclamation plan. Particular attention will
be given to the feasibility of installing passive treatment systems
and/or other measures to mitigate pre-existing discharges. Any
deficiencies are to be communicated to the contractor in writing.
Even though reclamation activities under a GFCC are not subject to
the barrier prohibitions of 25 Pa. Code 86.102, precautions will be
designed in the operation and reclamation plans to minimize any
potential adverse impacts on areas that would be considered prohibited
areas under a coal mining permit.
A performance bond in an amount determined by the PADEP shall be
submitted on forms provided by the PADEP for all GFCC sites where bond
is required. Specifically, a performance bond will be required on
GFCC's which involve coal removal which is incidental to reclamation.
PADEP stated that it has developed a bond rate schedule to be used to
establish the bond amount for each GFCC. The bond rate schedule is
based on acreage involved and PADEP's experience in reclaiming
abandoned mine lands. The authority for requiring a bond is contained
in the statutes cited in the legal opinion attached to the proposed
program amendment initially submitted. (Administrative Record No. PA-
855.00, Exhibit 2B), PADEP revised pages 15 and 16 of its proposed
amendment to include these clarifications. Should a contractor default
on a GFCC or otherwise fail to perform the required reclamation, PADEP
will make a demand upon the surety to fulfill its performance bond
obligations to either complete the reclamation required by the GFCC or
to pay that amount of bond money necessary for PADEP to hire another
contractor to complete the remaining contract reclamation work.
A consent order and agreement, in conjunction with a permit
condition, will be used to ensure that AML sites which receive excess
spoil from a Title V site are fully reclaimed in accordance with the
contract standards and/or the consent order. The permit condition will
provide that the operator will use no more than that amount of excess
spoil which is necessary to reclaim the AML site and that the
operator's failure to complete the required reclamation of the AML site
prohibits release of the bond on the Title V permit. An operator's
failure to complete reclamation of the AML site would also be a
violation of its permit, exposing the operator to civil penalties and/
or bond forfeiture and enforcement of the consent order and agreement.
B. A proposal for a GFCC will consist of a face sheet and the
following Pennsylvania Surface Mine Permitting modules as applicable:
Module #1--Ownership and Right of Entry
Module #2--Environmental Resource and Operations Map
Module #3--Hydrology
Module #4--Operational Information
Module #5--Streams
Module #25--Flyash
Module #27--Sewage Sludge
(a) The ownership and control information is to be entered into the
Land Use Management Information System (LUMIS) and a compliance check/
AVS check run. If a ``bar'' is found, the proposal is to be returned.
If ``no bar'' is found, the proposal will be accepted and given an ID
number.
(b) All proposals will be subject to the consultation requirements
with other state agencies as prescribed by Pennsylvania's approved AMLR
Plan.
(c) The PADEP will advertise receipt of the proposal. This notice
shall be run once a week for two weeks in a newspaper local to the
project area.
(d) The municipality and the county in which the site is located
will be notified, by certified letter, that the PADEP received a
proposal for a GFCC to perform reclamation activities within the
municipality.
(e) Upon final execution of the contract, PADEP will notify the
host municipality and county by certified mail of the action; notify
any agencies who submitted comments; notify appropriate state
Legislators, in writing, of the action; and issue a press release of
the action (The Regional Community Relations Coordinator will assist in
preparation of this release). If a Small Projects Permit is issued with
the executed contract, notice must be made in the Pennsylvania
Bulletin.
AMLR Plan, Part F: Monitoring Program for GFCC's
The PADEP will conduct monthly inspections of all GFCC's until the
site is determined to be stabilized by vegetation. At that time, the
PADEP will
[[Page 14613]]
continue to conduct regular inspections on a quarterly basis until the
contract receives final approval and final bond release.
The inspection forms and related instructions to be utilized to
monitor the GFCC program are part of the amendment.
According to the PADEP, the proposed program amendment would offer
solutions to the following problems that exist throughout
Pennsylvania's coal field:
(1) Conditions which create a risk of fire, landslide, subsidence,
cave-in or other unsafe, dangerous or hazardous conditions, including
but not limited to any unguarded or unfenced open pit area, highwall,
water pool, spoil bank and culm bank, abandoned structure, equipment,
machinery, tools, or other property used in or resulting from surface
mining operations. or other serious hazards to public health or safety.
(2) AMD pollution and sedimentation into Pennsylvania's streams.
(3) Unsightly, and unproductive property that has been largely
unreclaimed through either the AML or active mining programs.
(4) Inadequate funding to address the above three Pennsylvania
reclamation liabilities.
Generally speaking, the above conditions exist in areas that are
economically depressed and environmentally damaged. The necessary
reclamation represents an AML liability well in excess of hundreds of
millions of dollars. The proposed program offers an additional solution
to Pennsylvania's obligation to provide clean water and a safe and
healthy environment to its citizens.
Statutory Provisions
At 52 P.S. 1396.3, Pennsylvania proposes to modify its definition
of the term ``surface mining activities'', to add four exceptions. The
effect of the modification will be that the excepted activities'' will
not be required to apply for and receive surface coal mining permits,
and will not be required to comply with the full panoply of performance
standards contained in the Pennsylvania surface coal mining regulatory
program. Currently, Pennsylvania's definition of ``surface mining
activities'' is as follows:
``Surface mining activities'' shall mean the extraction of coal
from the earth or from waste or stockpiles or from pits or banks by
removing the strata or material which overlies or is above or between
them or otherwise exposing and retrieving them from the surface,
including, but not limited to, strip, auger mining, dredging, quarrying
and leaching, and all surface activity connected with surface or
underground mining, including, but not limited to, exploration, site
preparation, entry, tunnel, drift, slope, shaft and borehole drilling
and construction and activities related thereto, but not including
those portions of mining operations carried out beneath the surface by
means of shafts, tunnels or other underground mine openings. The
proposed amendment, which includes four exceptions to the definition of
``surface mining activities'' states that:
``Surface mining activities'' shall not include any of the
following: (1) Extraction of coal or coal refuse removal pursuant to a
government-financed reclamation contract for the purposes of section
4.8 [52 P.S. 1396.4h]. (2) Extraction of coal as an incidental part of
Federal, State or local government-financed highway construction
pursuant to regulations promulgated by the Environmental Quality Board.
(3) The reclamation of abandoned mine lands not involving extraction of
coal or excess spoil disposal under a written agreement with the
property owner and approved by the department. (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. The Director finds that exception number two,
the extraction of coal as an incidental part of Federal, State or local
government-financed highway construction pursuant to regulations
promulgated by the Environmental Quality Board, is substantively
identical to, and therefore no less stringent than, SMCRA Section
528(2), and she is therefore approving it. Prior to implementation of
this exception, however, Pennsylvania must submit to OSM and receive
OSM approval of the implementing regulations promulgated by the
Environmental Quality Board. The Director finds that exception number
three, the reclamation of abandoned mine lands not involving extraction
of coal or excess spoil disposal under a written agreement with the
property owner and approved by the department, is not inconsistent with
the Federal definition of ``surface coal mining operations'' at SMCRA
Section 701(28), and she is therefore approving it. The Director finds
that exception number four, 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, is
not inconsistent with SMCRA or the Federal regulations, and she is
therefore approving it. Prior to implementing this exception, however,
Pennsylvania must submit to and receive from OSM approval of any
implementing regulations it promulgates. Exception number one,
extraction of coal or coal refuse removal pursuant to a government-
financed reclamation contract for the purposes of section 4.8 [52 P.S.
1396.4h], is discussed below in the section of this finding entitled
``Analysis of Proposal to Allow Incidental Coal Removal Pursuant to
GFCC's.''
Also at 52 P.S. Sec. 1396.3, Pennsylvania proposes to define the
term ``government-financed reclamation contract'', as follows:
``Government-financed reclamation contract'' shall mean:
(1) For the purposes of Section 4.8 [52 P.S. 1396.4h], a Federally-
funded or state-funded and approved abandoned mine reclamation contract
entered into between the department and an eligible person or entity
who has obtained special authorization to engage in incidental and
necessary extraction of coal refuse pursuant to government-financed
reclamation which is either:
(i) a State-financed reclamation contract less than or equal to
fifty thousand dollars ($50,000) total project costs, where up to five
hundred (500) tons of coal is extracted, including a reclamation
contract where less than five hundred (500) tons is removed and the
government's cost of financing reclamation will be assumed by the
contractor under the terms of a no-cost contract;
(ii) a State-financed reclamation contract authorizing the removal
of coal refuse, including where reclamation is performed by the
contractor under the terms of a no-cost contract with the department,
not involving any reprocessing of coal refuse on the project area or
return of any coal refuse material to the project area;
(iii) a State-financed reclamation contract greater than fifty
thousand dollars ($50,000) total project costs or a federally-financed
abandoned mine reclamation project: Provided, That the department
determines in writing that extraction of coal is essential to
physically accomplish the reclamation of the project area and is
incidental and necessary to reclamation, or
(iv) federally financed or state-financed extraction of coal which
the department determines in writing to be essential to physically
extinguish an abandoned mine fire that poses a threat to the public
health, safety and welfare.
(2) For purposes of determining whether or not extraction of coal
is
[[Page 14614]]
incidental and necessary under section 4.8, the department shall
consider standard engineering factors and shall not in any case
consider the economic benefit deriving from extraction of coal.
Necessary extraction of coal shall in no case include:
(i) the extraction of coal in an area adjacent to the previously
affected area which will be reclaimed; or
(ii) the extraction of coal beneath the previously affected area
which will be reclaimed. This definition is discussed below in the
section of this finding entitled ``Analysis of Proposal to Allow
Incidental Coal Removal Pursuant to GFCC's.''
Also at 52 P.S. 1396.3, Pennsylvania proposes to define the term
``no-cost reclamation contract,'' as follows:
``No-cost reclamation contract'' shall mean a contract entered into
between the department and an eligible person for the purpose of
reclaiming unreclaimed abandoned mine lands and which does not involve
the expenditure of Commonwealth funds. This definition is discussed
below in the section of this finding entitled ``Analysis of Proposal to
Allow Incidental Coal Removal Pursuant to GFCC's.''
Finally, at 52 P.S. 1396.4h [also referred to as ``section 4.8''],
Pennsylvania proposes to add a new section entitled ``Government-
financed reclamation contracts authorizing incidental and necessary
extraction of coal or authorizing removal of coal refuse'' which states
that:
(a) No person may engage in the extraction of coal or in removal of
coal refuse pursuant to a government-financed reclamation contract
without a valid surface mining permit issued pursuant to this act
unless such person affirmatively demonstrates that he is eligible to
secure special authorization pursuant to this section to engage in a
government-financed reclamation contract authorizing incidental and
necessary extraction of coal or authorizing removal of coal refuse. The
department shall determine eligibility before entering into a
government-financed reclamation contract authorizing incidental and
necessary extraction of coal or authorizing removal of coal refuse. The
department may provide the special authorization as part of the
government-financed reclamation contract: Provided, That the contract
contains and does not violate the requirements of this section. The
department shall not be required to grant a special authorization to
any eligible person. The department may, however, in its discretion,
grant a special authorization allowing incidental and necessary
extraction of coal or allowing removal of coal refuse pursuant to a
government-financed reclamation contract in accordance with this
section.
(b) Only eligible persons may secure special authorization to
engage in incidental and necessary extraction of coal or to engage in
removal of coal refuse pursuant to a government-financed reclamation
contract. A person is eligible to secure a special authorization if he
can demonstrate, at a minimum, to the department's satisfaction that:
(1) The contractor or any related party or subcontractor which will
act under its direction has no history of past or continuing violations
which show the contractor's lack of ability or intention to comply with
the acts or the rules and regulations promulgated thereunder, whether
or not such violation relates to any adjudicated proceeding agreement,
consent order or decree, or which resulted in a cease order or civil
penalty assessment. For the purposes of this section, the term
``related party'' shall mean any partner, associate, officer, parent
corporation, affiliate or person by or under common control with the
contractor.
(2) 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 of any of the acts,
rules, regulations, permits or licenses of the department has been
corrected or is in the process of being corrected to the satisfaction
of the department, whether or not the violation relates to any
adjudicated proceeding, agreement, consent order or decree or which
resulted in a cease order or civil penalty assessment. For purposes of
this section, the term ``related party'' shall mean any partner,
associate, officer, parent corporation, subsidiary corporation,
affiliate or person by or under common control with the contractor.
(3) 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.
(4) 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 act of June 22, 1937 (Pub. L. 1987, No. 394), known as ``The Clean
Streams Law'' (35 P.S. Sec. 691.1 et seq.), in connection with either
surface mining or reclamation activities.
(5) 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.
(c) 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. The
department may issue the special authorization as part of the
government-financed reclamation contract: Provided, That the contract
contains and does not violate the requirements of 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 provision 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. In order to be considered for a special
authorization by the department, an eligible person must demonstrate at
a minimum that:
(1) The primary purpose of the operation to be undertaken is the
reclamation of abandoned mine lands.
(2) The extraction of coal will be incidental and necessary, or the
removal of coal refuse will be required, to accomplish the reclamation
of abandoned mine lands pursuant to a government-financed reclamation
contract.
(3) Incidental and necessary extraction of coal or in removal of
coal refuse will be confined to the project area being reclaimed.
(4) All extraction of coal or in removal of coal refuse and
reclamation activity undertaken pursuant to a government-financed
reclamation project will be accomplished pursuant to:
(i) The applicable environmental protection performance standards
promulgated in the rules and regulations relating to surface coal
mining listed in the government-financed reclamation contract; and
[[Page 14615]]
(ii) Additional conditions included in the government-financed
reclamation contract by the department.
(d) The contractor will pay any applicable per-ton reclamation fee
established by OSM for each ton of coal extracted pursuant to a
government-financed reclamation project.
(e) 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 act of
January 8, 1960 (1959 P.L. 2119, No. 787) (35 P.S. section 4001 et
seq.), known as the ``Air Pollution Control Act'', the act of September
24, 1968 (P.L. 1040, No. 318) (52 P.S. Sec. 30.51 et seq.), known as
the ``Coal Refuse Disposal Control Act,'' where applicable, the act of
November 26, 1978 (P.L. 1375, No. 325) (32 P.S. Sec. 693.1 et seq.),
known as the ``Dam Safety and Encroachments Act'', and, where
applicable, the act of July 7, 1980 (P.L. 380, No. 97) (35 P.S.
Sec. 6018.101 et seq.), known as the ``Solid Waste Management Act''. 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 acts herein above enumerated. 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 in 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.
(f) 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 (52 P.S. Sec. 1396.4b.), except as surface coal mining is
allowed pursuant to that section.
(g) 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.
(h) 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.
This new section is discussed below in the section of this finding
entitled ``Analysis of Proposal to Allow Incidental Coal Removal
Pursuant to GFCC's.''
Analysis of Proposal To Allow Incidental Coal Removal Pursuant to
GFCC's
Section 528(2) of SMCRA provides an exemption from the requirements
of SMCRA for coal extraction incidental to government-financed highway
or other construction under regulations established by the regulatory
authority. The amendments to Pennsylvania's statutes and to its AMLR
Plan would allow incidental coal extraction pursuant to the reclamation
of abandoned sites without the need of a surface coal mining permit.
The State contends that this amendment is consistent with the
provisions of section 528(2) of SMCRA and, therefore, not subject to
SMCRA.
The Federal regulations at 30 CFR Part 707 set forth the procedures
for determining those surface coal mining and reclamation operations
which are exempt from the Act and the Federal regulations because the
extraction of coal is an incidental part of Federal, State, or local
government-financed highway or other construction. Under 30 CFR 707.5,
government-financed construction, generally, means construction funded
50 percent or more by funds appropriated from a government financing
agency's budget or obtained from general revenue bonds. However, OSM
has recently promulgated a revision to the definition of ``government
financed construction'' at 30 CFR 707.5. The new revision allows
incidental coal extraction to be performed pursuant to approved
reclamation projects under Title IV of SMCRA, even where the government
funding portion is less than 50%. 64 FR 7470, February 12, 1999.
Therefore, Pennsylvania's proposed statutory and AMLR Plan amendments
are no less than the newly promulgated revision to the Federal
definition of ``government financed construction'', insofar as the
State provisions apply to approved Title IV projects. The Director also
finds that the AMLR plan amendment is no less effective than the
federal regulations at 30 CFR 707.12, pertaining to the information
required to be maintained on site, with respect to approved Title IV
projects. However, other new Federal provisions were enacted in the
same rulemaking. These new provisions, at 30 CFR 874.17, contain
consultation responsibilities and concurrence obligations, as well as
documentation requirements, for the Title IV and Title V divisions of
State Regulatory Authorities as a prerequisite to approval of
incidental coal extraction without a permit, on approved Title IV
reclamation projects which are less than 50% government financed.
Pennsylvania's proposed amendment already contained counterparts to the
requirements contained in 30 CFR 874.17(b), (d)(3) and (d)(4). Also,
since our approval of the incidental extraction of coal on projects
which are less than 50% government financed is limited to approved AML
projects under Title IV, the projects will necessarily be conducted in
accordance with 30 CFR Subchapter R, thereby fulfilling the requirement
at 30 CFR 874.17(d)(2). Finally, in a letter dated March 2, 1999
(Administrative Record No. PA-855.15), Pennsylvania proposed to amend
its AML Plan to require that any Title IV reclamation projects to
require compliance with the remaining portions of 30 CFR 874.17.
Therefore, the Director finds that the amendment submitted by
Pennsylvania, including the March 2, 1999, modification, complies with
30 CFR 874.17, to the extent that it applies to the incidental
extraction of coal on approved Title IV projects which are less than
50% government financed.
[[Page 14616]]
A discussion of the support statutory revisions follows.
At 52 P.S. 1396.3, Pennsylvania proposes an exception from the
definition of ``surface mining activities'' for the extraction of coal
or coal refuse removal pursuant to a government-financed reclamation
contract. Also at 52 P.S. 1396.3, Pennsylvania proposes a definition of
``government-financed reclamation contract.'' (This definition is
summarized above.) To the extent that these provisions apply to the
incidental extraction of coal pursuant to approved AML projects, they
are no less stringent than Section 528(2) of SMCRA, for the reasons
discussed in the preceding paragraphs under this heading. These
projects may be less than 50% government financed, and may be approved
by Pennsylvania at any time after the effective date of this final
rule. Our approval includes state financed reclamation projects, which
receive no federal AML funding, so long as those projects are approved
under title IV and the federal regulations at 30 CFR Subchapter R. In
other words, the State need not actually use federal AML moneys to fund
these projects, but the projects must first comply with the criteria in
SMCRA and the federal regulations which govern eligibility for federal
funding. Projects that are State financed, but that do not receive
Title IV approval, qualify for the government financed construction
exemption only if they are at least 50% government financed. Therefore,
the director is not approving the definition of ``government-financed
reclamation contract'' to the extent that it proposes to allow
incidental coal removal, pursuant to state financed reclamation
contracts which are less than 50 percent government financed, on sites
which have not been approved as Title IV AML projects.
In addition, the Director is not approving the portions of the
definition of ``government-financed reclamation contract'' which refer
to ``no-cost contracts.'' (See the proposed definition of ``no-cost
reclamation contract'', which is set forth in its entirety, above.) In
order to qualify as ``government-financed construction'', projects must
receive some funding through appropriations from the government
financing agency's budget. Any expenses incurred directly or indirectly
by the AML agency, including the costs of project design, solicitation,
management and oversight, qualify as government financing. However,
Pennsylvania defines no-cost contracts as those contracts that do not
involve the expenditure of any government funding, either as direct
payments or as indirect expenses such as those listed above. Therefore,
Pennsylvania's definition of ``government financed reclamation
contract'' is less effective than the Federal definition of
``government-financed construction'', at 30 CFR 707.5, to the extent
that it would allow incidental coal extraction or coal refuse removal,
without a permit, pursuant to no-cost contracts. Specifically, the
Director is not approving the following language in the definition of
``government-financed reclamation contract'':
In paragraph (1)(i), the phrase ``including a reclamation contract
where less than five hundred (500) tons is removed and the government's
cost of financing reclamation will be assumed by the contractor under
the terms of a no-cost contract''; and,
In paragraph (1)(ii), the phrase ``including where reclamation is
performed by the contractor under the terms of a no-cost contract with
the department, not involving any reprocessing of coal refuse on the
project area or return of any coal refuse material to the project
area.''
In addition, the Director is not approving the definition of ``no-
cost reclamation contract'', at 52 P.S. 1396.3.
Finally, the Director is requiring Pennsylvania to amend 52 P.S.
1396.3 to delete the above-referenced language.
At 52 P.S. 1396.4h, also known as ``Section 4.8'', which is set
forth in its entirety above, Pennsylvania has established criteria for
determining eligibility for receipt of a special authorization to
conduct incidental coal extraction or coal refuse removal pursuant to a
government-financed reclamation contract. This provision also requires
eligible persons to demonstrate that coal extraction or refuse removal
will be incidental and necessary to reclamation, which shall be the
primary purpose of the contract, and that it will comply with
environmental protection performance standards listed in the contract.
Next, the provision requires that applicable reclamation fees be paid
for each ton of coal extracted, sets forth criteria for the posting of
performance bonds, prohibits the incidental extraction of coal and
removal of coal refuse in areas subject to other restrictions on coal
extraction, pursuant to 52 P.S. 1396.4b, and requires surface owner
consent for right of entry and for extraction of coal. These
provisions, which are contained in subsections ``a'' through ``d'',
``f'' and ``h'' of 52 P.S. 1396.4h, have no Federal counterparts.
However, they are not inconsistent with Section 528(2) of SMCRA or 30
CFR Part 707, and add restrictions to the issuance of ``special
authorizations'' which should help to ensure that proposed projects
which are truly ``surface mining activities'' will be required to
obtain full surface mining permits. Therefore, the Director is
approving these subsections. She is also approving subsection ``e'' for
the same reasons, except for the following language, pertaining to
``no-cost contracts'', which is not approved:
For no-cost reclamation projects in 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.
Also, the Director is not approving any portion of subsection
``g'', since it pertains solely to extraction of coal pursuant to no-
cost contracts. Finally, the Director is requiring the State to amend
52 P.S. 1396.4h to delete the above-quoted portion of subsection ``e'',
and to delete subsection ``g'' in its entirety.
Analysis of Proposal to Allow Placement of Excess Spoil on Adjacent AML
Lands
Placement of excess spoil on adjacent abandoned mine land has been
addressed previously in other rulemaking. Specifically, in a July 9,
1991, letter to Ohio (Administrative Record No. OH-1546), the Director
of OSM clarified OSM's position concerning the standards and
requirements which apply to the usage of excess spoil for reclamation
of abandoned mine land sites. OSM focused on the parameters for excess
spoil disposal outside the permit area as established, in part, in
several final rules approving such a provision in the West Virginia
program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21,
1981; and 55 FR 21328-21329, May 23, 1990).
In the January 21, 1981, Federal Register announcing approval of
the West Virginia program (46 FR 5919), the Secretary found that, for
purposes of excess spoil disposal, a reclamation contract governing
work to be performed on a Federal AML reclamation grant project is the
equivalent of permit and bond under Title V of SMCRA. In the May 23,
1990, Federal Register (55 FR 21329), OSM found that West Virginia's
proposed
[[Page 14617]]
disposal of excess spoil on a Federally funded AML reclamation project
is approvable provided the spoil is not necessary to restore
approximate original contour (AOC) on or otherwise reclaim the active
mine. In addition, as stated in the May 23, 1990, Federal Register,
fills are not to be created on AML reclamation projects. Spoil
deposited on such sites may be used only to complete reclamation and to
return the site to its AOC. OSM restricted eligibility for such spoil
deposition to AML reclamation projects funded through the Federal AML
grant process. The May 23, 1990, finding, however, did not prohibit the
possibility that ``no-cost reclamation'' contracts, which allow spoil
disposal on AML sites not included in Federally funded grants, could be
approved in the future. In order to gain OSM approval, however, ``no-
cost reclamation'' amendments would have to contain meaningful
performance incentives or safeguards to ensure that spoil is placed
only where it is needed to restore AOC and where it will not destroy or
degrade features of environmental value. In addition, the amendments
must require that spoil be placed in an environmentally and technically
sound fashion. See OSM Director's July 9, 1991, letter to Ohio
(Administrative Record No. OH-1546). In short, ``no cost reclamation''
amendments must provide a degree of security comparable to that
afforded by a Federally funded AML reclamation project.
The Director finds that Pennsylvania's proposal regarding placement
of excess spoil, at Part F, meets these requirements, for the reasons
set forth below.
First, Pennsylvania's proposal requires that the amount of excess
spoil placed on an abandoned site will not exceed that required to
restore that site to AOC. Also, the proposal limits the amount of
excess spoil placed on AML sites to that amount needed to address the
AML impacts and problems. Therefore, valley, head-of-hollow and durable
rock fills will not be constructed on these AML sites, because the
amount of material deposited would exceed that necessary to address the
AML impacts and problems.
Second, the proposal requires that the plan for excess spoil
placement pursuant to a GFCC will be developed and implemented in the
same manner as is done for Federally funded AML projects. The
environmental safeguards that therefore will apply to GFCC's should
ensure that the excess spoil is placed in an environmentally sound
fashion, and that placement will not destroy or degrade features of
environmental value.
Third, and finally, the Director finds that the proposal contains
sufficient performance incentives to require compliance with all
applicable requirements, since a consent order and agreement, in
conjunction with a permit condition, will be used to ensure that AML
sites which receive excess spoil from a Title V site are fully
reclaimed. The permit condition will provide that the operator will use
no more than that amount of excess spoil which is necessary to reclaim
the AML site and that the operator's failure to complete the required
reclamation of the AML site prohibits release of the bond on the Title
V permit. An operator's failure to complete reclamation of the AML site
would also be a violation of its permit, exposing the operator to civil
penalties and/or bond forfeiture and enforcement of the consent order
and agreement. Finally, the PADEP always has AML grant funds available
to reclaim these sites in the event that the operator defaults on the
terms of its contract.
General Findings
Pursuant to 30 CFR 884.15(a), an AMLR Plan amendment which changes
the scope, objectives or major policies followed by the State in the
conduct of its reclamation program must meet the requirements of 30 CFR
884.14 before OSM may approve it. Accordingly, OSM makes the following
findings:
1. OSM offered the public an opportunity for a public hearing on
the amendment in the December 29, 1997, Federal Register Notice, (62 FR
67590), thereby complying with the requirement of 30 CFR 884.14(a)(1);
2. In both the December 29, 1997 (62 FR 67590) and July 28, 1998
(63 FR 40237) Federal Register Notices, OSM solicited the views of
other Federal agencies having an interest in the AMLR Plan amendment,
and OSM considered the views of those agencies in reaching its
decision, thereby complying with the requirements of 30 CFR
884.14(a)(2);
3. PADEP has provided evidence of the State's legal authority,
policies and administrative structure necessary to carry out the
proposed AMLR Plan amendment, thereby complying with the requirements
of 30 CFR 884.14(a)(3);
4. The AMLR Plan amendment meets all of the requirements of the
Federal Regulations at Title 30, Chapter VII, Subchapter R, ``Abandoned
Mine Land Reclamation'', including the newly promulgated ``AML
Enhancement Rule'' at 30 CFR 874.17, and therefore complies with the
requirements of 30 CFR 884.14(a)(4);
5. Pennsylvania has an approved State regulatory program, as
announced in the July 30, 1982, Federal Register Notice (47 FR 33050),
as required by 30 CFR 884.14(a)(5); and,
6. The AMLR Plan amendment is in compliance with all applicable
State and Federal laws and regulations, and therefore complies with the
requirements of 30 CFR 884.14(a)(6).
Based upon all of the above considerations, the Director is
approving Part F.
IV. Summary and Disposition of Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. Comments were received
from the Pennsylvania Coal Association, the Anthracite Region
Independent Power Producers Association, and the Indiana Coal Council,
Inc. (Administrative Record Nos. PA-855.05, 855.06 and 855.07, each
dated January 28, 1998, respectively). In each case, comments regarding
the proposed amendment were favorable and supportive, and encouraged
OSM's approval. Because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 884.14(a)(2), the Director solicited comments on
the proposed amendment from various Federal agencies with an actual or
potential interest in the Pennsylvania AMLR Plan. The Mine Safety and
Health Administration (MSHA) responded in its letter dated December 15,
1997, (Administrative Record No. PA-855.03) that it saw no conflict
with Coal Mine Safety and Health Impoundment or Refuse Pile Regulations
under 30 CFR 77.214, 215 and 216. No other comments were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) The Director has determined that this amendment
contains no such provisions and that EPA concurrence is therefore
unnecessary. Also, EPA did not respond to OSM's request for comments.
V. Director's Decision
Based on the above finding(s), the Director approves the proposed
[[Page 14618]]
amendment as submitted by Pennsylvania on November 21, 1997, clarified
on July 7, 1998, and revised on October 8 and October 13, 1998, and
March 2, 1999 with the exceptions noted below. In particular, the
Director is approving Part F, which authorizes the use of GFCCs which
involve incidental coal removal, or which allow the placement of excess
spoil on adjacent Abandoned Mine Lands. In addition, the Director is
approving the statutory provisions submitted by the State, consisting
of portions of 52 P.S. 1396.3 and a new section, 52 P.S. 1396.4th, with
the exceptions noted below.
The Director is not approving the definition of ``government-
financed reclamation contract'', at 52 P.S. 1386.3, to the extent that
it proposes to allow incidental coal removal, pursuant to state
financed reclamation contracts which are less than 50 percent
government financed, on sites which have not been approved as Title IV
AML project. Projects that are state financed, but that do not receive
Title IV AML approval, can include incidental coal removal if the
project are at least 50% government financed. In addition, the Director
is not approving the portions of the definition of ``government-
financed reclamation contract'' which refer to ``no-cost contracts.''
Specifically, the Director is not approving the following language in
the definition of ``government-financed reclamation contract'':
In paragraph (1)(i), the phrase ``including a reclamation contract
where less than five hundred (500) tons is removed and the government's
cost of financing reclamation will be assumed by the contractor under
the terms of a no-cost contract''; and,
In paragraph (1)(ii), the phrase ``including where reclamation is
performed by the contractor under the terms of a no-cost contract with
the department, not involving any reprocessing of coal refuse on the
project area or return of any coal refuse material to the project
area.''
In addition, since the Director is not approving the use of no-cost
reclamation contracts that involve incidental extraction of coal or
coal refuse, she is also not approving the definition of ``no-cost
reclamation contract'', at 52 P.S. 1396.3.
Also, the Director is not approving the following portions of
subsection ``e'' of 52 P.S. 1396.4h:
For no-cost reclamation projects in 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.
Finally, the Director is not approving any portion of 52 P.S.
1396.4h., subsection ``g'', since it pertains solely to extraction of
coal pursuant to no-cost contracts.
The Director is requiring Pennsylvania to amend 52 P.S. 1396.3 and
1396.4h to delete the above-referenced language.
The Federal regulations at 30 CFR part 938, codifying decisions
concerning the Pennsylvania program, are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State AMLR Plans and State Regulatory Program amendment
processes and to encourage States to bring their programs into
conformity with the Federal standards without undue delay. Consistency
of State and Federal standard is required by SMCRA.
VI. 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 and Tribal abandoned mine land reclamation plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State or Tribe, no by OSM. These standards are also not applicable to
the actual language of state regulatory programs and program amendments
for the same reason. Decisions on State and Tribal abandoned mine land
reclamation plans and revisions thereof submitted by a State or Tribe
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the Federal
regulations at 30 CFR Part 884. Similarly, 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)(1), 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 and Tribal abandoned mine land
reclamation plans and revisions thereof are categorically excluded from
compliance with the National Environmental Policy Act (42 U.S.C. 4332)
by the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)), and 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
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
[[Page 14619]]
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 5, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 938--PENNSYLVANIA
1. The authority citation for part 938 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 938.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
October 8, 1998............... March 26, 1999... 52 P.S. Secs.
1396.3, 1396.4h.
------------------------------------------------------------------------
3. Section 938.16 is amended by adding new paragraphs (cccc),
(dddd), (eeee) and (ffff) to read as follows:
(cccc) By May 26, 1999, Pennsylvania must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to delete the following portions of the
definition of ``government-financed reclamation contract'', at 52 P.S.
Sec. 1396.3: in paragraph (1)(i), the phrase ``including a reclamation
contract where less than five hundred (500) tons is removed and the
government's cost of financing reclamation will be assumed by the
contractor under the terms of a no-cost contract''; and, in paragraph
(1)(ii), the phrase ``including where reclamation is performed by the
contractor under the terms of a no-cost contract with the department,
not involving any reprocessing of coal refuse on the project area or
return of any coal refuse material of the project area.''
(dddd) By May 26, 1999, Pennsylvania must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to delete the definition of ``no-cost
reclamation contract'', at 52 P.S. Sec. 1396.3.
(eeee) By May 26, 1999, Pennsylvania must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to delete the following language
contained in subsection ``e'' of 52 P.S. Sec. 1396.4h:
For no-cost reclamation projects in 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 mines 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 in the alternative
establish a bond amount which reflects the cost of the proportionate
amount of reclamation.
(ffff) By May 26, 1999, Pennsylvania must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to delete, in its entirety, subsection
``g'' of 52 P.S. Sec. 1396.4h.
4. Section 938.25 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 938.25 Approval of Pennsylvania abandoned mine reclamation plan
amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
November 21, 1997............. March 26, 1999... Part F--Government
Financed
Construction
Contracts.
------------------------------------------------------------------------
[FR Doc. 99-7282 Filed 3-25-99; 8:45 am]
BILLING CODE 4310-05-M
