05-17613. Pennsylvania Regulatory Program

AGENCY:

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

ACTION:

Final rule; clarification.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is clarifying its decision with respect to one section of an amendment to the Pennsylvania regulatory program (Pennsylvania program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The amendment concerned revisions to the Pennsylvania Surface Mining Conservation and Reclamation Act (PASMCRA) and implementing regulations at 25 Pa. Code Chapters 86-90 with regard to various issues including bonding, remining and reclamation, postmining discharges, and water supply protection/replacement. We approved this amendment, with certain exceptions, in a final rule published in the Federal Register on May 13, 2005 (70 FR 25472-25491). This clarification supplements a previous finding made in Section III. OSM's Findings. However, it does not change or otherwise affect our decision made in Section V. OSM's Decision.

EFFECTIVE DATE:

September 6, 2005.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Director, Pittsburgh Field Division, Telephone: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

In our May 13, 2005, decision, we approved, among other provisions, Section 4(g)(3) of PASMCRA, pertaining to Stage 3 bond release (70 FR at 25491). Our finding with respect to Section 4(g)(3) is on page 25474, Col. 2, the first complete paragraph and the ensuing three paragraphs. After publication, a member of the public pointed out a possible ambiguity with respect to our finding in support of approving the phrase, “the remaining portion of the bond could be released in whole or in part at Stage 3 when the operator has completed successfully all mining and reclamation activities and has made provisions with PADEP for the sound future treatment of any pollutional discharges.” Accordingly, we decided to clarify our finding in support of the decision in this regard. This clarification is limited to an expansion of this finding only, and does not change or otherwise affect our decision to aprove Section 4(g)(3). We are expanding the finding related to Section 4(g)(3) to read:

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PASMCRA

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Section 4(g)(3) was modified to expressly indicate that the remaining portion of the bond could be released in whole or part at Stage 3 when the operator has completed successfully all mining and reclamation activities and has made provisions with PADEP for the sound future treatment of any pollutional discharges. That portion of the permit required for post-mining water treatment remains under bond as part of the provisions for future treatment of any pollutional discharges. Therefore, this is a form of partial bond release as provided for in 30 CFR 800.40(c) and can be approved.

The Federal regulations do not allow full bond release until all requirements of the State program and the permit have been met. However, Pennsylvania has made clear in its comments on this amendment that the reference to the “whole” bond that can be released actually refers to the original bond. That original, standard bond can be fully released at Stage 3 where it is replaced by another approved financial instrument, such as a trust fund as a collateral bond that will fully secure the long-term water treatment obligation. This method, which uses a collateral bond, is the “provision” for “sound future of any pollutional discharges.”

Additionally, Pennsylvania's regulations at 25 Pa. Code 86.151(j), which provides that release of bonds does not alleviate the operator's responsibility to treat discharge of mine drainage emanating from, or hydrologically connected to, the site to the standards in the permit, PASMCRA, the Clean Stream Law, the Federal Water Pollution Control Act (or Clean Water Act) and the rules and regulations thereunder, provides guidance as to what qualifies as sound future treatment. Based upon Pennsylvania's clarification about long term financial assurance, we construe the references to “release of bonds” in section 86.151(j) to mean the release of the original bond, that is replaced by another bond, whether it be a trust fund or other financial instrument used as a collateral bond, that will cover the area and cost of treatment facilities. Therefore, to the extent that the reference in section 4(g)(3) to release of the “whole” bond means the original bond that is replaced by the new bond in the form of another financial assurance mechanism, that reference is approved.

Section 4(g)(3) was also amended by deleting bond release language applicable to noncoal surface mining operations. Since SMCRA contains no counterpart to this language, the deletion of the language does not render the Pennsylvania program inconsistent with SMCRA or the implementing Federal regulations.

For the above noted reasons, we are approving the amendments to Section 4(g)(3).

Dated: July 14, 2005.

Brent Wahlquist,

Regional Director, Appalachian Region.