[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25472-25491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9570]
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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: Final rule; approval of amendment.
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SUMMARY: We are approving, with certain exceptions, a proposed
amendment to the Pennsylvania program under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposed
to revise its 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.
Pennsylvania revised its program to provide additional safeguards and
clarify ambiguities.
DATES: Effective Date: May 13, 2005.
FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh
Field Division; Telephone: (717) 782-4036; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Effect of Director's Decision
VII. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Pennsylvania program on July 30, 1982. You
can find background information on the Pennsylvania program, including
the Secretary's findings, the disposition of comments, and conditions
of approval in the July 30, 1982, Federal Register (47 FR 33050). You
can also find later actions concerning Pennsylvania's program and
program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.
II. Submission 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 covering various
issues including bonding, 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.''
We announced receipt of the proposed amendment in the March 12,
1999 Federal Register (64 FR 12269), and in the same document invited
public comment and provided an opportunity for a public hearing on the
adequacy of the proposed amendment. The public comment period closed on
April 12, 1999. Please refer to the March 12, 1999, Federal Register
for additional background information. In the July 8, 1999 Federal
Register (64 FR 36828), we reopened the comment period in response to a
June 1, 1999, letter (Administrative Record No. PA 853.11) from PADEP
regarding deletion of the definition of the term ``best professional
judgment'' at 25 Pa. Code 87.202 and 25 Pa. Code 88.502, and the
deletion of subsections 25 Pa. Code 87.207(b) and 25 Pa. Code
88.507(b). The reopened public comment period ended on July 23, 1999.
We received comments from: the Pennsylvania Historical and Museum
Commission dated January 14, 1999 (Administrative Record No. PA
853.03); the United States Department of Agriculture, Natural Resources
Conservation Service dated January 19, 1999 (Administrative Record No.
PA 853.04); the U.S. Department of Labor, Mine Safety and Health
Administration (MSHA), New Stanton, Pennsylvania, Office dated January
20, 1999 (Administrative Record No. PA 853.05); MSHA's Wilkes-Barre,
Pennsylvania, Office dated January 26, 1999 (Administrative Record No.
PA 853.06); Amerikohl Mining, Inc. dated March 29, 1999 (Administrative
Record No. PA 853.08); the Pennsylvania Coal Association dated April 9,
1999 (Administrative Record No. PA 853.09); Schmid and Company Inc.,
Consulting Ecologists dated April 9, 1999 (Administrative Record No. PA
853.10); and, the U.S. Environmental Protection Agency dated May 25,
2000 (Administrative Record No. PA 853.19).
By letters dated September 22, 1999 (Administrative Record No. PA
853.14), and April 6, 2000 (Administrative Record No. PA 853.17), we
requested
[[Page 25473]]
clarification from Pennsylvania on various aspects of its amendment. In
an October 3, 2002, letter to Pennsylvania (Administrative Record No.
PA 853.22), we indicated that some of the issues in our September 22,
1999, and April 6, 2000, letters were no longer valid and that we were
withdrawing them. The conclusions in this letter were the result of our
internal deliberations and the issues were not removed as the result of
information from any other source. Since the issuance of the October 3,
2002, letter, we have had numerous meetings with Pennsylvania to
discuss the items remaining from the September 22, 1999, and the April
6, 2000, letters.
The meetings with Pennsylvania resulted in Pennsylvania providing
us with information to clarify the meaning of various parts of its
amendment. We prepared a document listing those clarifications and
placed it in the administrative record (Administrative Record No. PA
853.25). Additionally, Pennsylvania submitted two letters to us
modifying the December 18, 1998, amendment. Those letters were dated
December 23, 2003 (Administrative Record No. PA 853.23), and April 13,
2004 (Administrative Record No. PA 853.24). Based on Pennsylvania's
revisions and additional explanatory information for its amendment, we
reopened the public comment period in the November 24, 2004, Federal
Register (69 FR 68285) (Administrative Record No. PA 853.26). The
public comment period ended on December 9, 2004. In response to the
November 24, 2004, request for comments, we received letters from: the
U.S. Environmental Protection Agency dated December 27, 2004
(Administrative Record No. PA 853.29); MSHA's Arlington, Virginia,
Office dated December 20, 2004 (Administrative Record No. PA 853.28);
MSHA's Wilkes-Barre, Pennsylvania, Office dated January 7, 2005
(Administrative Record No. PA 853.30); and, Citizens for Pennsylvania's
Future dated January 18, 2005 (Administrative Record No. PA 853.31).
III. OSM's Findings
In the amendment, Pennsylvania modified its Surface Mining
Conservation and Reclamation Act (PASMCRA) and portions of its
regulations at 25 Pa. Code Chapter 86, Surface and Underground Coal
Mining: General; 25 Pa. Code Chapter 87, Surface Mining of Coal; 25 Pa.
Code Chapter 88, Anthracite Coal; 25 Pa. Code Chapter 89, Underground
Mining of Coal and Coal Preparation Facilities; and, 25 Pa. Code
Chapter 90, Coal Refuse Disposal. In some cases, Pennsylvania made the
same modifications to regulations in several different Chapters. In
those cases, we discussed all the similar regulations together. Our
discussion of the amendment appears below by the applicable sections of
PASMCRA followed by the applicable sections of the Pennsylvania
regulations.
PASMCRA
Section 3, Definitions of the terms ``government financed
reclamation contract,'' ``no-cost reclamation contract,'' and ``surface
mining activities'' were previously approved in the March 26, 1999, and
June 8, 1999, editions of the Federal Register (64 FR 14610, 64 FR
30387, respectively). Therefore, these statutory provisions are not a
part of this rulemaking.
Section 3, Definition of the term ``total project costs.''
Pennsylvania added this definition for use in Section 4.8 of PASMCRA.
Pennsylvania defines the term to mean the entire cost of performing a
government financed reclamation contract as determined by Pennsylvania
even if the cost is assumed by the contractor pursuant to a no-cost
contract with PADEP. When we reviewed the statutory provisions listed
above in 1999, we should also have requested that PADEP separately
submit the definition of ``total project costs,'' but inadvertently
neglected to do so. There is no comparable definition in the Federal
regulations. However, so long as it is applied in a manner consistent
with our March 26, 1999, decision (64 FR 14610), as amended by our June
8, 1999, decision (64 FR 30387), the definition is not inconsistent
with the Federal regulations at 30 CFR part 707 that provide for
government-financed construction. Therefore, we are approving it.
Section 3.1. This section contains the requirements for obtaining a
license to mine coal. Section 3.1(a) was amended to require anyone
mining coal to obtain a license and to provide the requirements for
obtaining a license. Section 3.1(b) which provides the circumstances
under which Pennsylvania will not issue or renew a mining license was
amended to specify that it applies to any person who mines coal by the
surface mining method. Section 3.1(c) which requires an application for
a license, renewal or permit to be accompanied by a certificate of
public liability insurance was amended to change references from
surface mining operations to surface mining activities. The changes
Pennsylvania made make it clear that certain licensing provisions apply
to all who mine coal where formerly they only applied to surface mine
operators. There are no licensing requirements in the Federal
regulations. However, these requirements are not inconsistent with the
application and permitting requirements of the Federal regulations.
Therefore, we are approving them.
Section 3.1(d) was amended to add a provision that a permit will be
denied to certain entities engaged in mining coal if they control or
have controlled mining operations with a demonstrated pattern of
willful violations. This provision is no less stringent than the
corresponding portion of Section 510(c) of SMCRA, and we are therefore
approving it.
Section 4(a) was modified to require that before anyone can mine
coal, a permit must be obtained. Previously, the requirement was that
anyone wishing to mine minerals was required to obtain a permit. This
provision, as amended, remains no less stringent than Section 506(a) of
SMCRA, 30 U.S.C. 1256(a), and therefore, we are approving it.
Section 4(a)(2)(C) was modified to provide that for areas
previously disturbed by surface mining activities that were not
reclaimed to the standards of PASMCRA and are proposed to be remined,
Pennsylvania may approve a vegetative cover which may not be less than
the vegetative cover existing before the redisturbance and must be
adequate to control erosion and achieve the postmining land use. This
subsection is no less effective than the ground cover revegetation
requirements of the Federal regulations at 30 CFR 816.116(a) and
(b)(5). Therefore, we are approving this subsection.
Section 4(d) was modified by deleting existing language and adding
language that expressly describes other forms of collateral or bonds
that are acceptable. The amendment adds life insurance policies to the
list of acceptable forms of collateral bonds. The life insurance policy
must be fully paid and noncancelable with a cash surrender value
irrevocably assigned to PADEP at least equal to the amount of the
required bonds. In addition, the policy cannot be borrowed against and
cannot be utilized for any purpose other than assuring reclamation.
While the Federal regulations at 30 CFR 800.21, governing collateral
bonds, do not specifically provide for the use of insurance policies,
we find that these policies present no greater risks than those
inherent in other forms of collateral bonding. Therefore, we conclude
that the addition of life insurance policies as collateral bonds to
Section 4(d) will not render the Pennsylvania program less effective
than 30 CFR 800.21 in meeting the bonding requirements of Section 509
[[Page 25474]]
of SMCRA, and this addition is hereby approved.
Section 4(d) also expressly adds annuities and trust funds to the
list of acceptable collateral bonds. The annuity or trust fund must
irrevocably name PADEP as beneficiary. The implementing regulations at
25 Pa. Code 86.158(f) expressly provide additional conditions on the
use of trust funds and annuities. As is the case with whole life
insurance policies, there are no specific provisions addressing trust
funds or annuities in the Federal collateral bonding regulations at 30
CFR 800.21. However, they are an acceptable form of collateral and,
with the safeguards included in the State's regulations, trust funds
and annuities present no greater risks, and are, therefore, no less
effective than the forms of collateral bonding expressly contained in
30 CFR 800.21. Therefore, we conclude that the addition of annuities or
trust funds as types of collateral bond to Section 4(d) will not render
the Pennsylvania program less effective than 30 CFR 800.21 in meeting
the bonding requirements of Section 509 of SMCRA, and the addition is
hereby approved.
Section 4(d.2) expressly provides for the establishment of
alternative financial assurance mechanisms including site-specific
trust funds for the perpetual treatment of post mining discharges.
Again, while Federal rules do not expressly include site-specific trust
funds, we have determined that a fund that provides for the perpetual
treatment of post mining discharges functions as a collateral bond and,
as such, is no less effective than the Federal regulations regarding
collateral bonds. Therefore, we are approving Section 4(d.2). For a
more detailed analysis of site-specific trust funds, please refer to
our finding below pertaining to 25 Pa. Code 86.158(f).
Section 4(g) was modified to provide that any person having an
interest in the bond (including PADEP) may request bond release. While
the Federal regulations do not explicitly provide for the filing of
release applications by persons other than the permittee, it is not
unreasonable to allow such applications, and to grant the request where
the permittee has met all of the criteria for bond release. Therefore,
we have determined that this change is no less effective than the
Federal requirements at 30 CFR 800.40 regarding bond release and we are
approving it.
Section 4(g)(1) was modified to provide that operators may receive
Stage 1 bond release if, among other things, they have provided for the
treatment of pollutional discharges. While this provision has no
precise Federal counterpart, it is consistent with Section 519(b) of
SMCRA which requires the regulatory authority to evaluate ``whether
pollution of surface and subsurface water is occurring, the probability
of continuance of such pollution, and the estimated cost of abating
such pollution.'' Therefore, we are approving the change to Section
4(g)(1).
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.
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 discharges 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.
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).
Sections 4(g.1), (g.2), and (g.3). These new sections pertain to
Stage 2 bond release at sites with pollutional discharges, and bond
release at sites with ``minimal-impact post-mining discharges.'' In its
letter of December 23, 2003, Pennsylvania requested that we remove
these sections from this program amendment, because its definition of
``minimal impact postmining discharges'' and the regulations for
postmining discharges were not included in the proposed program
amendment. We are hereby granting that request; therefore, we will take
no further action in this rulemaking with respect to proposed Sections
4(g.1), (g.2), and (g.3).
Section 4(h) is amended to require that in the event of bond
forfeiture, payment of the forfeited bond must be made to PADEP within
30 days of notice of forfeiture, with the bond then being held in
escrow with any interest accruing to PADEP pending resolution of any
appeals. If any portion of the bond is determined by a court to have
been improperly forfeited, the interest accruing proportionately to
that amount shall be returned to the surety. While neither SMCRA nor
the Federal regulations provide specifically for the return of funds to
the surety in the event that a court decides that the regulatory
authority was not entitled to the entire amount of the bond, we find
this provision to be consistent with the Federal regulation at 30 CFR
800.50(d)(2) which requires the return of the portion of the bond in
excess of that needed for reclamation. Section 4(h) is also amended to
allow for surety reclamation of a site in lieu of paying the bond
amount to PADEP. This portion of the amendment is no less effective
than the Federal regulations governing surety reclamation at 30 CFR
800.50(a)(2)(ii). For these reasons, we are approving the changes to
Section 4(h).
Section 4.2(f) was modified to include provisions for restoration
or replacement of water supplies affected by surface mining activities.
Formerly, this section only required surface mine operators to restore
or replace water supplies they affect. Subsection (f)(1) now requires
that, in addition to surface mine operators, any person engaged in
government financed reclamation must restore or replace a water supply
when they adversely affect the supply. Section 528 of SMCRA provides
that the requirements of the Act are not applicable to sites where coal
removal is part of government financed construction. Therefore, that
portion of Pennsylvania's statute requiring restoration or replacement
of water supplies by persons engaged in government financed reclamation
is more stringent than the Federal provisions and we are approving
these provisions as it applies to persons engaged in government
financed reclamation.
Section 4.2(f)(1) also provides that adversely affected water
supplies must be replaced with an alternate source of water adequate in
quantity and quality for the purposes served by the supply. This
language is no less stringent than the Federal statutory provisions
contained in sections 717(b) of SMCRA that requires a surface coal mine
[[Page 25475]]
operator to replace a water supply that has been affected by surface
coal mine operations. Therefore, it can be approved even though it
lacks the specificity contained in the Federal regulations at 30 CFR
701.5, which define the term, ``replacement of water supply,'' to
include the provision of water supply on both a temporary and permanent
basis equivalent to premining quality and quantity. Pennsylvania's
implementing regulation to this statutory provision is addressed later
in this rulemaking (see 25 Pa. Code 87.119 and 88.107 below).
Section 4.2(f)(2) provides that a surface mine operator or mine
owner is responsible without proof of fault, negligence or causation
for all pollution, except bacterial contamination, and diminution of
public or private water supplies within 1000 linear feet of the
boundaries of the areas bonded and affected by coal mining operations,
areas of overburden removal, and storage and support areas except for
haul and access roads. This section also provides for five defenses to
the presumption of liability: (1) The mine operator or owner was denied
access to conduct a pre-mining water supply survey; (2) the water
supply is not within 1,000 linear feet of the boundaries of the areas
bonded and affected by coal mining operations, overburden removal/
storage areas and support areas [excluding haul and access roads]; (3)
a pre-permit water supply survey shows that the pollution/diminution
existed prior to the surface mining activities; (4) the pollution/
diminution occurred as a result of some cause other than surface mining
activities; and, (5) the mine operator or owner was denied access to
determine the cause of the pollution/diminution or to replace/restore
the water supply. Neither SMCRA nor the Federal regulations provide for
a similar presumption. In its amendment submission, Pennsylvania
indicated that with or without the rebuttable presumption of liability,
a mine operator is liable for replacing or restoring a water supply
contaminated or diminished by the operator's surface mining activities.
We are approving this subsection because it is not inconsistent with
Section 717(b) of SMCRA and the Federal regulations in that it does not
diminish an operator's obligation to restore or replace water supplies
affected by surface mining.
Section 4.2(f)(3) provides for the immediate replacement of a water
supply used for potable or domestic purposes when that supply is
required to protect public health or safety. If an operator has
appealed or failed to comply with an order issued under this section,
PADEP may use money from the Surface Mining Conservation and
Reclamation Fund to restore or replace the affected water supply. The
section also requires the Secretary of PADEP to recover the costs of
restoration or replacement from the responsible owners or operators.
Section 525(c) of SMCRA, 30 CFR 843.16 and 35 Pa. Stat. 7514 (d)
provide that an appeal of an order does not stay that order unless a
request for temporary relief is granted. While there is no provision in
the Federal program expressly allowing an agency to fund the
restoration/replacement of temporary water supplies, we are approving
this provision because it is not inconsistent with SMCRA and the
Federal regulations in ensuring the restoration or replacement of
affected water supplies and because it holds the operator responsible
for replacing water supplies affected by coal mining operations through
a cost recovery action.
Section 4.2(f)(4) allows an operator or an owner thirty days to
appeal an order to replace a water supply. This language is no less
effective than the Federal regulations at 30 CFR 843.16 (implementing
30 CFR 840.13), which allow a person issued an order to file an appeal
within 30 days after receiving the order.
Section 4.2(f)(4) also provides that an order issued under this
section which is appealed will not be used to block issuance of new
permits. This provision is no less effective than the Federal
regulation at 30 CFR 773.14(b)(4), which provides that a regulatory
authority may issue a provisional permit if an operator is pursuing a
good faith administrative or judicial appeal contesting the validity of
a violation.
Section 4.2(f)(4) also provides that an order to replace an
affected water supply which is appealed by the operator cannot be used
to block the release of bonds when a stage of reclamation is completed.
Pennsylvania's provision allows bond release even though an order to
restore or replace the water supply remains unabated. Section 519(c)(3)
of SMCRA and 30 CFR 800.40(c)(3) prohibit the release of the Phase 3
bond (the final portion of the bond) before the reclamation
requirements of SMCRA and the permit are fully met. Pennsylvania's
proposed changes do not specify or limit what stage of bond may be
released, which we find is less stringent than SMCRA and less effective
than the Federal regulations. Accordingly, to the extent that these
changes allow Phase 3 bond release, the changes to Section 4.2(f)(4)
are not approved and to the extent these changes allow Phase 1 or Phase
2 bond release after successful completion of the reclamation
requirements of the applicable Phase, they are approved.
Section 4.2(f)(5) has been subsequently repealed by Pennsylvania in
House Bill 393 (see 66 FR 57662, 57664 [November 16, 2001] for OSM's
approval of Pennsylvania's repeal of this section). Therefore, this
section is not a part of this rulemaking.
Section 4.2(f)(6) provides that nothing in this section prevents
anyone who claims water pollution or diminution of a water supply from
pursuing any other remedy that may be provided for in law or equity.
There is no Federal counterpart to this provision. The affected parties
have the full protection of PASMCRA while they are pursuing other
remedies. Since the protections of PASMCRA are not affected by this
subsection, we have determined that this provision is not inconsistent
with SMCRA or the Federal regulations and we are approving it.
Section 4.2(f)(7) provides that a surface mining operation
conducted under a permit issued before the effective date of this Act
shall not be subject to the provisions of clauses (2), (3), (4), (5),
and (6) of Section 4.2(f) but shall be subject to clause (1). Because
Subsection (1) requires the replacement of water supplies, we have
determined that Section 4.2(f)(7) is no less stringent than Section
717(b) of SMCRA and we are approving it to the extent noted in our
discussions above.
Section 4.2(i) was added to provide access for PADEP and its agents
to places where surface mining activities are being conducted to
conduct inspections and take any materials for analysis. This
provision, in concert with Section 18.9 of PASMCRA, is no less
effective than the Federal regulations at 30 CFR 840.12(a), which
provide for right of entry. Therefore, we are approving this section.
Section 4.6(i) provides bond release requirements for mining of
previously affected areas. This section was modified in several
respects. The modifications render this bond release provision the same
as specified elsewhere in PASMCRA. At Stage 1, up to sixty percent of
the bond may be released, whereas before it was up to fifty percent. At
Stage 2, the amount of bond permitted to be released is amended from
thirty-five percent to ``[a]n additional amount of bond but retaining
an amount sufficient to cover the cost to the Commonwealth of
reestablishing vegetation if completed by a third party * * *.'' A
Stage 2
[[Page 25476]]
release criterion was modified to allow an operator to get such a
release where it can show, among other things, that it has not caused
the baseline pollution load of a discharge to be exceeded for a twelve
month period prior to the date of bond release application and until
the release is approved. While some of these changes have no precise
Federal counterparts, they are all consistent with the bond release
requirements of the Federal regulations at 30 CFR 800.40. Moreover, the
bond release amount modifications for Stages 1 and 2 are no less
effective than corresponding portions of the Federal regulations at 30
CFR 800.40(c)(1) and (c)(2), respectively. Therefore, we are approving
the changes to this section.
Section 4.6(j) provides the standards of success for vegetative
cover as a result of the reclamation of a previously mined site. The
section was modified to allow PADEP to require a higher standard of
vegetation success where it determines that such a standard is integral
to the proposed pollution abatement plan. Pennsylvania's modification
of this section makes it more stringent than the Federal requirements
because it allows PADEP to set a higher standard than that contained in
the Federal regulations at 30 CFR 816.116(a) and (b)(5) if it deems it
necessary. Therefore, we are approving this section.
Section 4.7 provides for the anthracite mine operators emergency
bond fund. This section was modified by Pennsylvania to open the
emergency bond fund to anthracite surface mine operators. Among other
things, these amendments will require anthracite surface mine operators
that are unable to post bond for certain reasons to pay a twenty-five
cents per ton fee, which is used to reclaim their operations if they
are subsequently abandoned. No permits may be issued to an anthracite
operator who does not post an adequate bond until the operator files at
least $1,000.00 with PADEP and borrows from the emergency bond fund an
amount sufficient to cover the remainder of the bond obligation.
Significantly, fees paid by an operator may only be used to secure
the reclamation obligations of that operator. Thus, the emergency bond
fund is not an alternative bonding system; rather, it is an adjunct to
the conventional bonding system for anthracite mining operations. This
section was formerly approved by OSM, and allowing anthracite surface
mine operators to use the fund does not make it inconsistent with
Section 509 of SMCRA, since no permit may be issued without adequate
bonds being posted, in the form of a loan from the emergency bond fund.
Therefore, we are approving the amendments to this section.
Section 4.8 was added to PASMCRA by this amendment. This section
was submitted separately by PADEP, at our request, in conjunction with
our review of Pennsylvania's 1997 revisions to its Abandoned Mine Land
Reclamation (AMLR) Plan. Our decisions on this provision were announced
in the March 26, 1999, and June 8, 1999, editions of the Federal
Register (64 FR 14610, 64 FR 30387, respectively). Therefore, this
section is not a part of this rulemaking.
Section 4.10 establishes the Remining Operator's Assistance Program
(ROAP). While this section was not part of Pennsylvania's original 1998
amendment submission, Pennsylvania requested that it be added in its
letter to us of April 13, 2004 (Administrative Record No. PA 853.24).
The ROAP, which is funded by Pennsylvania's Remining Environmental
Enhancement Fund, will allow PADEP to assist and pay for the
preparation of applications for licensed mine operators to obtain
permits for remining abandoned mine land, including land subject to
bond forfeitures, and coal refuse piles. Section 4.10 also authorized
the Pennsylvania Environmental Quality Board (EQB) to promulgate
regulations to expand the ROAP beyond its interim scope, which was
coextensive with assistance provided under the State's Small Operator
Assistance Program (SOAP). While Section 4.10 has no Federal
counterpart, we find that its addition to the Pennsylvania program
should further the State's goal of promoting the remining and
subsequent reclamation of previously mined, unreclaimed areas, and will
not render the program inconsistent with SMCRA or the implementing
Federal regulations. Therefore, we are approving Section 4.10.
Section 4.11 authorizes the EQB to promulgate regulations that will
constitute an interim reclamation and remining program that provides
incentives and assistance to reclaim abandoned mine lands and lands
subject to bond forfeiture. PADEP is authorized to expend moneys from
the Remining Environmental Enhancement Fund for this program. Proposed
and final regulations must include, without limitation, the following
elements: Encouragement of reclamation of abandoned mine lands by
active surface coal mine operators; encouragement of the recovery of
remaining coal resources on abandoned mine lands and maximization of
reclamation of such lands; development of an operator qualification
system; and, encouragement of local government participation in
abandoned mine land agreements. Section 4.11 requires PADEP to prepare
an annual report to the environmental committees of the Pennsylvania
Senate and House of Representatives. The report must include, without
limitation, the following components: The number and names of operators
participating in the programs created by Sections 4.8, 4.9, 4.10, 4.12,
4.13, and 18; the number of acres of reclaimed abandoned mine land,
reclaimed coal refuse piles, and reclaimed bond forfeiture land; the
dollar value of this reclamation; recommendations for providing
additional incentives for reclamation of previously mined areas; and,
any comments on the annual report submitted by the Mining and
Reclamation Advisory Board. This section was not part of Pennsylvania's
original 1998 amendment submission, but Pennsylvania requested that it
be added in its letter to us of April 13, 2004 (Administrative Record
No. PA 853.24). While Section 4.11 has no Federal counterpart, we find
that its addition to the Pennsylvania program should further the
State's goal of promoting the remining and subsequent reclamation of
previously mined, unreclaimed areas, and will not render the program
inconsistent with SMCRA or the implementing Federal regulations.
Therefore, we are approving Section 4.11.
Section 4.12 provides for financial guarantees to insure
reclamation. Pursuant to this section, Pennsylvania has established a
Remining Financial Assurance Fund to financially assure bonding
obligations for an operator engaged in remining. The section requires
the EQB to promulgate regulations providing criteria for operator and
site eligibility, methods for paying into the fund, the limits of use
of the fund, and the procedures to follow in the event of bond
forfeiture. Under this incentives program, PADEP will reserve a portion
of the financial guarantees special account in the Remining Financial
Assurance Fund as collateral for reclamation obligations on the
remining area. Payments cannot be made from the fund until the fund is
actuarially sound. The special account is funded by an initial deposit
of $5 Million, as specified in Section 18(a.2) of PASMCRA, which is
discussed below, and by annual payments from participating operators,
as set forth in 25 Pa. Code 86.283(a). Operators making such payments
are excused from the requirement to post a bond with respect to any
permit for which the payments
[[Page 25477]]
are made. We find that these remining incentives are not inconsistent
with the provisions of SMCRA, since they do not alter the basic
Pennsylvania program requirement to secure a bond for surface and
underground coal mining operations. Therefore, we are approving this
section except for Section 4.12(b) as noted below.
Because of Section 4.12(b), which states that payments to the
Remining Environmental Enhancement Fund will be reserved in a special
account to be used in case of operator forfeiture and 25 Pa. Code
86.281(e), as discussed below, which states that ``additional funds
from the Remining Financial Assurance Fund will be used to complete
reclamation'' where the actual reclamation cost exceeds the financial
guarantee amount reserved for a given permit, the remining incentives
program is a type of alternative bonding system. As we note in our
discussion below of 25 Pa. Code 86.281(e), neither the statute nor the
regulations meets OSM's criteria for an alternative bonding system.
Therefore we are not approving Section 4.12(b) to the extent it creates
an alternative bonding system.
Section 4.13 provides for reclamation bond credits. A ``bond
credit'' may be issued by PADEP to a licensed mine operator as a reward
for the successful completion of voluntary reclamation of abandoned
mine lands. The credits may be used against any reclamation bond
obligation, in combination with surety or collateral bonds, except as
specified in this section and in the implementing regulations at 25 Pa.
Code 86.291-86.295. Credits will not be issued to operators who fail to
successfully complete the reclamation as set forth in the voluntary
reclamation agreements. Credits also may not be issued to operators if
the operators, entities directed or controlled by the operators, or
entities the operator directs or controls bear any Federal or State
reclamation responsibilities for an area proposed to be reclaimed. Bond
credit amounts will be underwritten solely with funds from the Remining
Financial Assurance Fund established in Section 18(a) of PASMCRA, which
is discussed below. The bond credit program is not an alternative
bonding system, because PADEP is not obligated to expend more than the
permit-specific bond credit amount reserved from the Remining Financial
Assurance Fund in the event of forfeiture. Therefore, the program is
essentially an adjunct to the State's conventional bonding system.
While there is no Federal counterpart to this provision, we find that
the allowance of financially guaranteed bond credits within a
conventional bonding system does not render the Pennsylvania program
less stringent than Section 509 of SMCRA, so long as all applicable
bonding requirements contained in the State counterparts to Section 509
and the implementing Federal regulations at 30 CFR part 800 are met.
For this reason, we are approving Section 4.13.
Section 18(a) was amended to provide for the Remining Environmental
Enhancement Fund and the Remining Financial Assurance Fund. These funds
were created for use in the remining and reclamation incentives created
by this amendment. Specifically, the Remining Environmental Enhancement
Fund is to be used to pay the costs of designating areas suitable for
reclamation by remining, and operating the ROAP created in Section
4.10. The Remining Financial Assurance Fund is to be used to pay the
costs of the financial guarantees program created in Section 4.12, and
the bond credit program created in Section 4.13. Operator
qualifications for participating in these programs are also set forth
in Section 18(a.3.) There are no equivalent Federal counterparts to
these funds. However, because we have found that Sections 4.10, 4.12,
4.13 and all of those sections' implementing regulations do not render
the Pennsylvania program inconsistent with SMCRA, we are likewise
approving the amendments to Section 18(a), including 18(a.1), (a.2) and
(a.3). In its April 13, 2004, letter (Administrative Record No. PA
853.24) to us, PADEP requested the withdrawal of Subsection 18(a.4)
from the amendment, because the program it creates, pertaining to areas
designated suitable for reclamation through remining, has not yet been
developed. Therefore, subsection 18(a.4) is not a part of this
rulemaking.
Section 18(f) was amended to allow any licensed mine operator to
propose reclamation of a bond forfeiture site. There are no Federal
counterparts to Pennsylvania's licensing procedures and there are no
restrictions in the Federal regulations on who may propose reclamation
of a bond forfeiture site. The amended provisions of Section 18(f) are
not inconsistent with SMCRA or the Federal regulations and therefore we
are approving them.
Section 18(g) provides the internal rules for Pennsylvania's Mining
and Reclamation Advisory Board (Board). This amendment modified rules
pertaining to conduct of the Board. There is no Federal counterpart for
this provision. However, this section is not inconsistent with the
provisions of SMCRA and therefore we are approving it.
Section 18.7 provides for the Small Operator's Assistance Fund.
This section was modified to limit Pennsylvania's use of SOAP funds to
those uses authorized by SMCRA and OSM. This provision is not
inconsistent with Section 507 (c) of SMCRA or the provisions of 30 CFR
Part 795 and therefore, we are approving it.
Section 18.9 provides for search warrants. This section was added
by this amendment and provides the circumstances under which an agent
of PADEP may apply for a search warrant and the conditions under which
a warrant may be issued. This section provides that an agent of PADEP
may apply for a search warrant to examine any property, premise, place,
building, book, record or other physical evidence or to conduct tests
and take samples or of seizing books, records or other physical
evidence. The Federal regulations at 30 CFR 840.12 provide that a
search warrant is not necessary for inspection of mine operations,
except that States may require warrants for building searches, nor is a
warrant necessary to access or copy records required under the State
program. Under the revised Section 18.9, a warrant is not necessary for
these activities, but that section gives Pennsylvania the ability to
secure a warrant if necessary, such as where the permittee refuses to
allow entry. Additionally, Section 4.2(i) provides full entry
authorization to employees of PADEP to places where surface mining
activities are being conducted and also provides the ability to take
samples of materials for analysis without use of a warrant. For these
reasons, we have determined that this section is no less effective than
the Federal regulations at 30 CFR 840.12(b) and we are approving it.
Section 18.10 was added to PASMCRA to indicate that it shall not be
construed to violate any of the requirements of the Clean Water Act of
1977 or SMCRA. This provision is not inconsistent with SMCRA and
therefore, we are approving it.
Pennsylvania's Regulations
25 Pa. Code 86.142 Definitions. Pennsylvania added definitions of
the terms, ``annuity,'' ``trustee,'' and ``trust fund.'' ``Annuity'' is
a ``financial instrument which provides a sum payable periodically over
a length of time.'' ``Trustee'' is ``[o]ne in whom some estate,
interest or power in or affecting property of any description is vested
for the benefit of another.'' ``Trust fund'' is a ``fund held by a
trustee which provides moneys to address specific reclamation or
[[Page 25478]]
pollution abatement requirements, or both, associated with a mining
activity.'' Pennsylvania noted that these terms define new bonding
instruments for bonding of surface coal mining operations. While there
are no comparable instruments specifically provided for in SMCRA or the
Federal regulations, we are approving the addition of trust funds and
life insurance policies for use as collateral bonding instruments. The
reasons for the approval are more fully set forth in our findings above
with respect to PASMCRA Sections 4(d) and 4(d.2), and below at 25 Pa.
Code 86.158(e) and (f).
25 Pa. Code 86.151(b). This subsection was modified to add coal
preparation plants to the list of operations for which the bond
liability period is specified. We are approving this section with the
understanding that the period of liability for water pollution will be
no less than that required by the Federal regulations at 30 CFR 800.13.
25 Pa. Code 86.151(c). This subsection was modified to clarify the
liability provisions for water pollution from coal refuse disposal
activities. We are approving this subsection with the same
understanding as noted in 25 Pa. Code 86.151(b).
25 Pa. Code 86.151(j). This subsection was added to make it clear
that an operator's responsibility to treat discharges is not affected
by the release of bond. While this provision has no Federal
counterpart, we are approving it pursuant to Section 505(b) of SMCRA,
which states that more stringent environmental control and regulation
of surface coal mining operations than is provided for by SMCRA or the
Federal regulations will not be construed to be inconsistent with the
Act.
25 Pa. Code 86.152. This section provides for bond adjustments
under the Pennsylvania program. In the amendment, Pennsylvania added a
phrase to Subsection (a) that makes it clear that PADEP may require
additional bonding if the cost of reclamation, restoration or abatement
work increases so that an additional amount of bond is necessary.
Additionally, Pennsylvania added a phrase to Subsection (b) that
clarifies that a permittee may request a reduction of the required bond
amount if the estimated cost to PADEP to complete restoration or
abatement responsibilities is reduced.
Pennsylvania subsequently proposed to modify 25 Pa. Code 86.152(a)
as part of the changes made in response to our review of its subsidence
control regulations. We approved those proposed changes in our December
9, 2004, final rule (69 FR 71528, 71534). The change we approved in the
December 9, 2004, final rule eliminates the language change to
Subsection (a) that Pennsylvania proposed in its December 18, 1998,
submission. Therefore, subsection 86.152(a) is not a part of this
rulemaking. Please see the December 9, 2004, final rule for more
information on the changes made to 25 Pa. Code 86.152(a).
The changes Pennsylvania proposed at 25 Pa. Code 86.152(b) are no
less effective than the bond adjustment requirements of 30 CFR
800.15(c) which provide that a permittee may request reduction of the
amount of bond on submission of evidence to the regulatory authority
proving that the permittee's method of operation or other circumstances
reduces the estimated cost for the regulatory authority to reclaim the
bonded area. Therefore, we are approving the changes to 25 Pa. Code
86.152(b).
25 Pa. Code 86.156(b). This section, which requires financial or
other institutions to notify PADEP of bankruptcy of the institution or
permittee, was expanded to include the new types of collateral bonds
allowed by the amendments to PASMCRA (e.g., annuities, trust funds,
life or property and casualty insurance). This section contains the
same requirements as 30 CFR 800.16(e)(1). The addition of
Pennsylvania's new bonding instruments to the notification requirements
does not make those requirements any less effective than the
requirements in the Federal counterpart and therefore we are approving
it.
25 Pa. Code 86.157. Pennsylvania made two changes to this section,
which provides terms and conditions for surety bonds. The first change
was made to Subsection (3) which now provides that PADEP 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. Pennsylvania added the phrase, ``* * * from a surety company
for a permittee if the single bond * * * '' Pennsylvania also replaced
a requirement that PADEP not accept a bond in excess of the surety's
maximum single obligation unless the surety company satisfies the law
exceeding that limit and replaced it with the requirement that PADEP
not accept a bond that exceeds the surety company's maximum single risk
exposure. While the provisions of 25 Pa. Code 86.157(3) have no
specific Federal counterpart, we find that the provisions are not
inconsistent with Section 509 of SMCRA or the bonding regulations at 30
CFR part 800. Therefore, we are approving this subsection.
The second change Pennsylvania made to this section was to delete
former Subsection (4). This requirement provided that PADEP will not
accept surety bonds from a surety company for any permittee on all
permits held by that permittee in excess of three times the company's
maximum single obligation. The provisions of former Section 25 Pa. Code
86.157(4) have no Federal counterpart. Therefore, we have determined
that deleting that provision will not make the Pennsylvania program
inconsistent with SMCRA and as a result we are approving its deletion.
Finally, Pennsylvania modified Subsection (8), formerly known as
Subsection (9). This subsection allows a surety the option, subject to
approval of PADEP, to perform reclamation under the bond after
forfeiture, in lieu of paying the bond amount. The amendment provides
that a surety that wishes to avail itself of this option must so notify
PADEP within 30 days of receiving the notice of forfeiture, or PADEP
may proceed to collect the bond. While this amendment has no specific
Federal counterpart, we find that it is consistent with the Federal
regulations at 30 CFR 800.50(a)(2)(ii), and it is therefore approved.
25 Pa. Code 86.158. Pennsylvania made three changes to this section
which provides terms and conditions for collateral bonds. In Subsection
(c)(6), Pennsylvania previously required that PADEP accept certificates
of deposit from banks or banking institutions licensed or chartered to
do business in Pennsylvania. Pennsylvania is now expressly allowing
certificates of deposit from banks or banking institutions licensed or
charted in the United States. There is no Federal counterpart to this
requirement and we have determined that the change will not make this
section inconsistent with SMCRA, or with the Federal regulations at 30
CFR 800.21. Therefore, we are approving it.
The second change Pennsylvania made to 25 Pa. Code 86.158 adds
Subsection (e), which provides the requirements for the use of life
insurance policies as collateral bonds. Among other things, Subsection
(e) requires the policy to be fully paid, with a cash surrender value
at least equal to the amount of the required bond. The policy must be
irrevocably assigned to PADEP, and cannot be borrowed against or used
for any purpose, nor may it bear any existing liens, loans or
encumbrances at the time it is assigned to PADEP. While the Federal
regulations at 30 CFR 800.21, governing collateral bonds, do not
specifically provide for the use of insurance policies, we find
[[Page 25479]]
that these policies present no greater risks than those inherent in
other forms of collateral bonding. Therefore, we conclude that the
addition of Subsection (e) will not render the Pennsylvania program
less effective than 30 CFR 800.21 in meeting the bonding requirements
of Section 509 of SMCRA, and the subsection is hereby approved.
The third change Pennsylvania made to 25 Pa. Code 86.158 adds
Subsection (f), which expressly provides the requirements for the use
of annuities or trust funds as collateral bonds. Among other things,
this subsection requires that the trust fund or annuity be in an amount
determined by PADEP to be sufficient to meet the bonding requirements
for the permittee. The trust fund or annuity must irrevocably establish
PADEP as its beneficiary. Any financial institution serving as the
trustee or issuing the annuity must be a State-chartered or National
bank or other financial institution with trust powers, or a trust
company with offices in Pennsylvania and examined or regulated by a
State or Federal agency. An insurance company issuing an annuity shall
be licensed or authorized to do business in Pennsylvania or shall be
designated by the Insurance Commissioner as an eligible surplus lines
insurer. Trust funds and annuities shall be the property of the
Commonwealth of Pennsylvania. Termination of the trust fund or annuity,
or release of any funds from either instrument to the permittee may
occur only if permitted by PADEP. As is the case with whole life
insurance policies, there are no specific provisions for trust funds or
annuities in the Federal collateral bonding regulations at 30 CFR
800.21. However, with the safeguards included in the State's provision,
it appears that trust funds and annuities present no greater risks than
those inherent in those forms of collateral bonding expressly named in
30 CFR 800.21. Therefore, we conclude that the addition of Subsection
(f) will not render the Pennsylvania program less effective than 30 CFR
800.21 in meeting the bonding requirements of Section 509 of SMCRA, and
the subsection is hereby approved.
25 Pa. Code 86.161. Pennsylvania made one change to this section,
which provides the requirements for phased deposits of collateral for
long term operations or facilities. Pennsylvania added a sentence to
the end of Subsection (3), which expressly allows interest accumulated
by phased deposits of collateral to become part of the bond, and to use
the interest to reduce the amount of the final phased deposit. While
this provision has no precise Federal counterpart, it is consistent
with 30 CFR 800.21(d)(2), which provides that interest paid on a cash
account shall be applied to the bond value of the account. Also, the
addition of this requirement does not make this section less effective
than the provisions of 30 CFR 800.17 relating to bonding of long term
facilities and structures. Therefore, we are approving the amendment to
this section.
25 Pa. Code 86.168. This section provides the terms and conditions
for liability insurance. Pennsylvania made several changes to this
section. Among the proposed changes are the following requirements: the
permittee must submit proof of liability insurance before a surface
coal mining license is issued; the insurance must be written on an
occurrence basis, and provide protection against bodily, rather than
personal, injury; the limits of the rider for protection against
explosives must be at least equivalent to the general liability limits
of the policy; notification of any substantive policy changes must be
made 30 days in advance; the minimum bodily injury and property damage
coverages are increased from $300,000 to $500,000 per person and $1
million aggregate; and, that failure to maintain insurance will result
in issuance of a notice of intent to suspend the license or permit,
followed by 30 days opportunity to submit proof of coverage prior to
suspension, rather than issuance of a notice of violation. The changes
do not make this section any less effective than the Federal provisions
of 30 CFR 800.60. Therefore, we are approving the changes to this
section.
25 Pa. Code 86.171. This section provides procedures for seeking
bond release. Pennsylvania's change to this section requires operators
to include in the advertisement of bond release application whether any
postmining pollutional discharges have occurred and requires a
description of the type of treatment provided for the discharges.
Pennsylvania also changed this regulation to reflect the requirement in
PASMCRA that a person other than the permittee may apply for bond
release, and that PADEP may release the bond after such an application
if all release requirements are met. The changes to the bond release
advertisement will ensure that a complete description of the minesite
is available to the public for comment. While the Federal regulations
do not explicitly provide for the filing of release applications by
persons other than the permittee, it is not unreasonable to allow such
applications, and to grant the request where the permittee has met all
of the criteria for bond release. Therefore, we have determined that
these changes are no less effective than the Federal requirements at 30
CFR 800.40 regarding bond release and we are approving them.
25 Pa. Code 86.174. This regulation provides the standards for
release of bonds. In Subsection (a), the word ``and'' was changed to
``or,'' and consequently stated that Stage 1 bond release standards
were met when, among other things, ``the entire permit area or a permit
area has been backfilled or graded to the approximate original contour
* * *.'' Because the Federal regulations at 30 CFR 800.40 require that
backfilling and grading occur prior to the granting of a Stage 1
release, OSM asked Pennsylvania to explain the reason for the change
from ``and'' to ``or'' (Administrative Record No. PA 853.17). PADEP
responded that the change was made in error, and that a corrective
amendment was published in the January 17, 2004, Pennsylvania bulletin.
The change to Subsection (d) merely clarifies the point that the bond
release standards contained therein are in addition to the release
standards contained in subsections (a), (b), and (c) of this section.
We find that the change to Subsection (d) does not render 25 Pa. Code
86.174 less effective than the Federal regulations at 30 CFR 800.40,
and we are therefore approving it.
25 Pa. Code 86.175. This regulation provides standards for release
of bonds. Under Subsection (a), Pennsylvania has replaced a general
reference to the provisions permittees must comply with to secure bond
release with the specific sections of the regulations permittees must
comply with. In Subsection (b)(3), Pennsylvania removed language that
indicated amount of bonds remaining at Stage 3 may be released after
final inspection and procedures of 25 Pa. Code 86.171 (relating to
procedures for seeking release of bond) have been satisfied.
We have found that Pennsylvania has clarified its program by adding
the specific sections of the regulations for operator compliance to
Subsection (a). Since the referenced regulatory sections are the
approved Pennsylvania bond release provisions, the references to them
do not render this section less effective than the Federal regulations
and we are approving it. Additionally, we have found that the removal
of the language from Subsection (b)(3) does not make the release of
Stage 3 bonds less effective than the requirements at 30 CFR
800.40(c)(3). Therefore, we are approving these changes.
25 Pa. Code 86.182. This regulation provides procedures for bond
[[Page 25480]]
forfeitures. Pennsylvania added new subsections (a)(3) and (d) and
renumbered some existing subsections. Pennsylvania added the new
subsections to provide requirements for surety reclamation of
forfeiture sites. Subsection (a)(3) requires that if forfeiture of the
bond is necessary, PADEP must notify the surety to pay the amount of
the forfeited bond to PADEP. The money is to be held in escrow with any
interest accruing to PADEP pending resolution of any appeals. If a
court decides the Commonwealth is not entitled to either a portion of,
or the entire amount forfeited, the interest shall accrue
proportionately to the surety in the amount determined to be improperly
forfeited. Subsection (d) provides that a surety may reclaim the
forfeited sites in lieu of paying the amount of the forfeited bond.
This section provides time frames for the surety to notify PADEP of its
intentions and requires the surety to enter into a consent order and
agreement with PADEP if it approves the surety's proposal for
reclamation.
While the new Subsection (a)(3), requiring the return of funds to
the surety in the event that a court decides that PADEP was not
entitled to the entire amount of the bond, has no direct Federal
counterpart, we find that it is consistent with the provision at 30 CFR
800.50(d)(2) which requires the return of bond in excess of that needed
for reclamation. The new Subsection (d) is no less effective than the
Federal regulations governing surety reclamation at 30 CFR
800.50(a)(2)(ii). Therefore, we are approving the amendments to Section
86.182.
25 Pa. Code 86.195. This section of the regulations provides for
civil penalties against corporate officers. In Subsection (b), a cross
reference was revised from 25 Pa. Code 87.14 to 25 Pa. Code 86.353
(relating to identification of ownership). This change clarifies the
intent of PADEP to serve notice of orders for failing to abate
violations to each corporate officer listed in the surface mine
operator's license application. We have determined that this section is
no less effective than the requirements of 30 CFR 843.11(g) which
provides for notification of corporate officers of the issuance of
cessation orders. Therefore, we are approving this section.
25 Pa. Code 86.251-253, 86.261-270, and 86.281-284. These
regulations under Subchapter J, Remining and Reclamation Incentives,
were added by Pennsylvania to provide incentives for active coal mine
operators to conduct remining and reclamation of abandoned mine lands
and bond forfeiture sites by assisting the operators in meeting their
obligation to bond these activities. Sections 86.251-86.253 provide
definitions of terms used in the programs, the qualifications for
operators to participate in the program, and the qualifications for
eligibility of projects.
In 25 Pa. Code 86.261-86.270, Pennsylvania has established a
Remining Operator Assistance Program (ROAP). While these sections were
not part of Pennsylvania's original 1998 amendment submission,
Pennsylvania requested that they be added in its letter to us of April
13, 2004 (Administrative Record No. PA 853.24). In the ROAP, which is
funded by Pennsylvania's Remining Environmental Enhancement Fund,
Pennsylvania will assist operators in preparing applications for
remining an area by paying consultants to describe existing resources
that could be affected by the remining activities, determine the
probable hydrologic consequences on the proposed remining area and the
adjacent area, prepare a detailed description of the proposed remining
activities, and collect and provide general hydrologic information on
the watershed areas. The regulations provide for a description of
program services, criteria for an operator's eligibility for
participation in the program, PADEP responsibilities, criteria for
operator's eligibility for assistance, requirements for applications
for assistance, provisions for application approval, notice of approval
or denial, requirements for data collection, public records, basic
qualifications for consultants and laboratories, and circumstances
under which an operator must reimburse Pennsylvania for the cost of the
services performed. While these provisions have no Federal
counterparts, we find that their addition to the Pennsylvania program
should further the State's goal of promoting the remining and
subsequent reclamation of previously mined, unreclaimed areas, and will
not render the program inconsistent with SMCRA or the implementing
Federal regulations.
In 25 Pa. Code 86.281-86.284, Pennsylvania has established a
Remining Financial Assurance Fund to financially assure bonding
obligations for an operator engaged in remining. The section provides
the requirements for an operator's participation, the limits of use of
the fund, and the procedures to be followed in the event of bond
forfeiture. Under this incentives program, PADEP will reserve a portion
of the financial guarantees special account in the Remining Financial
Assurance Fund as collateral for reclamation obligations on the
remining area. The reserved amount will be the average cost per acre
for PADEP to reclaim a mine site multiplied by the number of acres in
the remining area. The special account is funded by an initial deposit
of $5 million, as specified in Section 18(a.2) of PASMCRA, which is
discussed above, and by annual payments from participating operators,
as set forth in Section 86.283(a). Operators may not substitute these
financial guarantees for existing collateral or surety bonds. Operators
approved to participate in the financial guarantees program are not
required to pay Pennsylvania's per acre reclamation fee required by 25
Pa. Code 86.17(e) for the remining area. Released bond amounts from a
financial guarantee may not be used to cover reclamation obligations on
another section of a permit.
We have found that these remining incentives are not inconsistent
with the provisions of SMCRA. The basic Pennsylvania program
requirement to secure a bond for surface and underground coal mining
operations has not been altered by these incentives. As a result we are
approving sections 86.251-86.253 (with the following explanation for
the definition of ``remining area'' at 25 Pa. Code 86.252), 86.261-270,
and 86.281-86.284, except for 25 Pa. Code 86.281(e).
Pennsylvania defines ``remining area,'' at 25 Pa. Code 86.252, as
``[a]n area of land on which remining will take place, including that
amount of previously undisturbed area up to 300 feet from the edge of
the unreclaimed area which must be affected to achieve a final grade
compatible with adjacent areas. Additional undisturbed land may be
within a remining area if the permittee demonstrates that a larger area
is needed to accomplish backfilling and grading of the unreclaimed area
or is needed for support activities for the remining activity.
(Emphasis added) In its April 6, 2000 letter to PADEP, OSM stated this
concern with the underlined language:
As long as this definition applies only to the incentives
provisions enacted at Section 4.12 of the statute, and 25 Pa. Code
Sec. Sec. 86.251-86.284, it is not inconsistent with the Federal
regulations at 30 CFR Sec. 816.102. However, it may be inconsistent
with this Federal provision if it allows previously unmined areas to
be backfilled and graded only in accordance with standards
applicable to previously mined areas * * * What reclamation
standards apply on the margin area? (Administrative Record No. PA
853.17).
PADEP responded to OSM's concerns by stating that the 300 feet or
greater ``margin area'' is solely a financial
[[Page 25481]]
incentive for an applicant to consider remining an abandoned mine area.
According to PADEP, all normal permitting requirements and performance
standards, including backfilling, regrading and revegetation
provisions, still apply to the ``margin area.'' With this clarification
in hand, we find that the definition of ``remining area'' in 25 Pa.
Code 86.252 does not render the Pennsylvania program less effective
than the Federal regulations at 30 CFR 816.102, and we are therefore
approving it.
25 Pa. Code 86.281(e) provides that on declaration of forfeiture
``additional funds from the Remining Financial Assurance Fund will be
used to complete reclamation'' where the actual reclamation cost
exceeds the financial guarantee amount reserved for a given permit.
This appears to present, as part of a remining incentives program, a
type of alternative bonding system (ABS). An ABS can be approved under
30 CFR 800.11(e) if two objectives are met: (1) The ABS must assure
that the regulatory authority will have available sufficient money to
complete the reclamation plan for any areas which may be in default at
any time, and (2) the ABS must provide a substantial economic incentive
for the permittee to comply with all reclamation provisions. With
regard to participation in the Remining Financial Assurance Fund as
envisioned under 25 Pa. Code 86.281, Pennsylvania's regulations fail
the second objective because the program does not provide any economic
incentives for permittees to comply with all reclamation provisions.
While the statute and regulations provide numerous qualifying criteria
for operators to enter the program, once approved for the program there
are no criteria for removal from the program nor any other incentive to
ensure that operators comply with all reclamation provisions. As a
result, this portion of 25 Pa. Code 86.281(e) is less effective than
the Federal regulations regarding an ABS and we are not approving the
last sentence which states, ``If the actual cost of reclamation by the
Department exceeds the amount reserved, additional funds from the
Remining Financial Assurance Fund will be used to complete
reclamation.''
With removal of the last sentence of 25 Pa. Code 86.281(e), the
remainder of the regulation provides that on declaration of forfeiture,
reserved funds will be used by PADEP to complete reclamation of the
remining area in accordance with the procedures and criteria in 25 Pa.
Code 86.187-86.190. The regulations at 25 Pa. Code 86.187-86.190
provide procedures to be followed in the case of bond forfeiture and
require, among other things, that moneys received from the forfeiture
will be used only for reclamation and water supply restoration affected
by the bonded operation. Thus, without the last sentence, 25 Pa. Code
86.281(e) presents the Remining Financial Assurance Fund as a
conventional bond. Our disapproval of the last sentence of 25 Pa. Code
86.281(e) renders the remainder of the regulation no less effective
than the Federal regulations regarding bonding and therefore, we are
approving it.
25 Pa. Code 86.291-86.295. These regulations contain the procedures
for the use of an account in the Remining Financial Assurance Fund to
financially assure bond obligations of an operator who has voluntarily
completed a reclamation project approved by PADEP under the bond credit
program. The regulations govern financial assurance for bond credit-
general (86.291), bond credit application procedures and requirements,
and operator qualifications (86.292), bond credit issuance (86.293),
bond credit uses and limitations (86.294), and forfeiture (86.295). A
``bond credit'' will be issued to a qualified operator from the bond
credit special account in the Remining Financial Assurance Fund. The
credit amount reserved will be the lesser of the operator's or PADEP's
cost of reclamation of the abandoned mine lands to be reclaimed under
the agreement. The operator may apply the bond credit to an original or
additional bond for a permit for surface or underground coal mining
operations. Bond credits or parts thereof may be used on single or
multiple permits, and may be used two times. However, the second use of
the credit may not commence until the credit is released from its first
use. Bond credits may not be used to bond water loss or long-term water
treatment. Bond credits will be released prior to any other bond
release on a permit area. Credits not used within 5 years of issuance
will expire. Forfeited bond credit reserved amounts will be used to
complete reclamation of the mine site. For a more detailed discussion
of the ``bond credit'' concept, please see the finding for Section 4.13
of PASMCRA. As we noted with our finding on the statute, there are no
Federal counterparts to these regulations and we find that the
allowance of financially guaranteed bond credits within a conventional
bonding system does not render the Pennsylvania program less stringent
than Section 509 of SMCRA, so long as all applicable bonding
requirements contained in the State counterparts to Section 509 and the
implementing Federal regulations at 30 CFR part 800 are met. Therefore,
we are approving these regulations.
25 Pa. Code 86.351-86.359 (formerly 87.12-87.21). These regulations
were revised by Pennsylvania to require all coal mine operators to
obtain a mine operator's license. In its program amendment submittal,
Pennsylvania indicated that because of revisions to PASMCRA that
require anyone mining coal to secure a license (formerly, only surface
coal mine operators were required to be licensed), it moved the
requirements for a mine operator's license from Chapter 87 Surface
Mining of Coal to Chapter 86 Surface and Underground Coal Mining:
General. Pennsylvania further noted that when moving these regulations
to Chapter 86, it made minor changes in wording and punctuation for
clarity. Most of these minor changes were necessary to render the
licensing requirements applicable to all coal mining operations. In
addition, the following substantive changes were made.
25 Pa. Code 86.353 (formerly 87.14). This regulation was amended to
delete the requirement that license applications provide information
pertaining to ``persons owning or controlling the coal to be mined
under the proposed permit under a lease, sublease or other contract,
and having the right to receive the coal after mining or having
authority to determine the manner in which the proposed surface mining
activity is to be conducted.''
25 Pa. Code 86.355 (formerly 87.17). The regulation was amended to
require PADEP to deny a license, renewal or amendment to an applicant
where:
[t]he applicant has a partner, associate, officer, parent
corporation, subsidiary corporation, contractor or subcontractor
which has shown a lack of ability or intention to comply with an
adjudicated proceeding, cessation order, consent order and agreement
or decree, or as indicated by a written notice from the Department
of a declaration of forfeiture of a person's bonds.
25 Pa. Code 86.358 (formerly 87.20). This regulation was amended by
deleting failure to comply with a notice of violation as a basis upon
which PADEP may suspend or revoke a license, and by adding failure to
maintain public liability insurance as a permissible basis for license
suspension or revocation.
Finally, Section 86.359 (formerly 87.21) was amended to provide for
varying licensing fee amounts, depending on the tonnage of marketable
coal per year.
[[Page 25482]]
As part of the license application, operators must provide
information on: Identification of ownership, public liability
insurance, and compliance information. These regulations provide the
requirements for submitting a license application and criteria for
approval of mining licenses. Section 86.355 was revised to make the
criteria for approval of licenses applicable to license amendments.
The Federal regulations do not require mine operators to be
licensed. However, many of the reporting requirements of Pennsylvania's
license application are required by the Federal regulations (e.g.,
ownership and compliance information and liability insurance
requirements). As Pennsylvania noted, OSM had previously approved these
requirements when they were part of Chapter 87. By moving these
requirements to Chapter 86, with only minor changes, Pennsylvania has
made it clear that these requirements apply to all those who mine coal
in the State. As such, the revisions do not render these regulations
inconsistent with SMCRA or the implementing regulations; therefore, we
are approving them.
25 Pa. Code Chapter 87.1 and 88.1 Definitions of ``de minimis cost
increase,'' ``water supply,'' and ``water supply survey.'' Pennsylvania
has added these definitions to its program. The term ``de minimis cost
increase'' was added to define requirements of 25 Pa. Code 87.119
related to water supply replacement for water supplies affected by
surface coal mining activities and to 25 Pa. Code 88.1 related to water
supply replacement for water supplies affected by anthracite coal
mining operations (both underground and surface). This definition is
the same as the definition of ``de minimis cost increase'' found at 25
Pa. Code 89.5. When we considered the water supply replacement
requirements for 25 Pa. Code Chapter 89 relating to water supplies
affected by underground mining activities, we determined that the
definition of ``de minimis cost increase'' was not as effective as the
Federal regulation at 30 CFR 701.5 (definition of the term,
``replacement of water supply''); because the intent of the Federal
regulations was to insure that the owner or user of the water supply
was made whole and that no additional costs were passed on to the water
supply user. For additional rationale on why we did not approve the
definition of ``de minimis cost increase'' as it applies to underground
mining, the December 27, 2001, Federal Register (66 FR 67010, 67029) is
incorporated by reference. Because the term ``replacement of water
supply'' at 30 CFR 701.5 applies to water supplies affected by both
surface and underground coal mining operations, including anthracite
coal mining operations, we are not approving the definition of ``de
minimis cost increase'' at 25 Pa. Code 87.1 and 88., as it applies to
operations subject to SMCRA, for the same reasons that we did not
approve the definition at 25 Pa. Code 89.5.
Pennsylvania also added and defined the term, ``water supply'' in
this amendment to 25 Pa. Code 87.119 related to water supply
replacement for water supplies affected by surface mining activities
and to 25 Pa. Code 88.1 related to water supply replacement for water
supplies affected by anthracite coal mining operations. Pennsylvania
defined ``water supply'' as an existing or currently designated or
currently planned source of water or facility or system for the supply
of water for human consumption or for agricultural, commercial,
industrial or other uses. Section 717(b) of SMCRA requires an operator
to replace the water supply of owners who obtain all or part of their
supply of water for domestic, agricultural, industrial, or other
legitimate use from an underground or surface source when the supply
has been affected by surface coal mine operations. As noted above,
Pennsylvania's anthracite definitions do not distinguish between
surface and underground coal mining activities. For underground coal
mining activities, Section 720(b) of SMCRA is more limited than 717(b)
of SMCRA in that it only requires the replacement of drinking, domestic
or residential water. Pennsylvania's definition of water supply is as
inclusive in the types of water supplies that are protected as those in
717(b) and 720(b) of SMCRA. As a result, we are approving this
definition in both sections.
Pennsylvania also defined the term, ``water supply survey.'' Water
supply survey is defined as the collection of reasonably available
information for a water supply to establish certain physical
characteristics of the supply. Pennsylvania only uses this term in its
regulations at 25 Pa. Code 87.119 and 88.107 with regard to those
circumstances that operators can rebut the presumption of liability for
pollution as established in Subsection (b) of those regulations. The
Federal regulations do not define the term, ``water supply survey.''
Since Pennsylvania only uses the term in conjunction with an operator's
ability to rebut the presumption of liability of pollution, and as we
stated earlier, rebutting the presumption of liability does not relieve
operators of liability for replacement or restoration of water supplies
that were impacted by their mining operations, use of the term does not
make Pennsylvania's program less effective than the Federal regulations
and we are approving this definition.
Finally, in the amendment submission of December 18, 1998,
Pennsylvania proposed to delete the definition of the term, ``dry
weather flow'' from 25 Pa. Code 87.1, 88.1, 89.5, and 90.1. However, in
a letter dated December 23, 2003 (Administrative Record No. PA 853.23),
Pennsylvania revised the proposed amendment to retain the definition of
``dry weather flow'' at 25 Pa. Code 87.1 as well as at 25 Pa. Code
Sections 88.1, 89.5 and 90.1. As a result of Pennsylvania's December
23, 2003, letter, this rulemaking does not address this definition.
25 Pa. Code 87.11. Pennsylvania deleted this section which provided
definitions of the terms, ``owned or controlled or owns or controls,''
``principal shareholder,'' and ``surface mining.'' These terms were
defined in this section for use in Pennsylvania's licensing procedures.
The definitions of the terms ``owned or controlled or owns or
controls'' and ``principal shareholder'' are in the regulations at 25
Pa. Code 86.1. There were some differences in the definitions of
``owned or controlled or owns or controls'' between 25 Pa. Code 87.11
and 25 Pa. Code 86.1. We approved the differences to the definition in
the November 3, 2000, Federal Register (65 FR 66170). Since these terms
appear elsewhere in the Pennsylvania program and OSM does not require
the licensing of operators, we are approving their removal from 25 Pa.
Code 87.11.
The definition of ``surface mining'' at 25 Pa. Code 87.11 does not
appear elsewhere in the Pennsylvania program. However it was defined in
this section only for Pennsylvania's use in licensing procedures. Since
OSM does not require licensing of operators, we are approving the
removal of this definition from the program.
25 Pa. Code 87.12-87.15 and 87.17-87.21. Pennsylvania has deleted
these regulations which provide the requirements for obtaining a mining
license from 25 Pa. Code Chapter 87 and moved them to 25 Pa. Code
Chapter 86 (please see our findings for 25 Pa. Code 86.351-86.359
above). We are approving the deletion of these regulations from Chapter
87 for the reasons noted in our findings for 25 Pa. Code 86.351-86.359
above.
25 Pa. Code 87.16. In this amendment, Pennsylvania deleted this
provision which was in place as part of the
[[Page 25483]]
requirements for obtaining a mine operator's license. The compliance
information provisions of this section are located in 25 Pa. Code
86.63. Since these provisions appear elsewhere in the Pennsylvania
program and OSM does not require the licensing of operators, we are
approving the deletion of 25 Pa. Code 87.16.
25 Pa. Code 87.102, 87.103, 88.92, 88.93, 88.187, 88.188, 88.292,
88.293, 89.52, 89.53, 90.102 and 90.103. In the original amendment,
Pennsylvania proposed to delete these sections from the approved
program. However, in a letter dated December 23, 2003 (Administrative
Record No. PA 853.23), Pennsylvania revised its proposed amendment to
retain these regulations. Therefore, these sections are not addressed
in this rulemaking.
25 Pa. Code 87.119, 88.107. Pennsylvania substantially modified
these sections which provide for the replacement of water supplies
affected by surface coal mining activities or government financed
reclamation. Subsection (a) provides for water supply replacement
obligations and indicates that a water supply affected by the operator
of any mine or a person engaged in government financed reclamation must
restore or replace the affected supply with an alternate source
adequate in water quantity and quality for the purpose served by the
water supply. Under the Federal regulations at 30 CFR 701.5 defining
the term, ``replacement of water supply,'' an operator must restore or
replace an affected water supply, on both a temporary and permanent
basis with one that is equivalent to premining quantity and quality.
While Pennsylvania's proposed regulation under Subsection (a) does not
expressly include temporary replacement of water supplies, it does not
preclude Pennsylvania from requiring temporary replacement where a
permanent replacement cannot be readily implemented. To the extent the
proposed provision would not require temporary replacement of water
supplies when needed, it is less effective than the Federal rules and
is not approved. Also, the phrase ``adequate in water quantity and
quality for the purpose served by the water supply'' differs from the
Federal phrase ``equivalent to premining quantity and quality.'' To the
extent the proposed provision would allow the replaced water supply to
be of a lesser quality and/or quantity than the premining quality and
quantity, it is less effective than the Federal requirements.
Therefore, we are not approving Subsection (a) for water supplies
affected by surface coal mining activities to the extent that it would
allow the replaced water supply to be of a lesser quantity and quality
than the premining water supply or would not require temporary
replacement of water supplies where needed. Otherwise, it is approved.
Subsection (a)(1) requires that a restored or replaced water supply
meet the criteria listed in subsections (1)(i) through (iv), which
talks about reliability, cost, maintenance and control. Subsection (i)
requires the restored or replaced water supply to be as reliable as the
previous water supply. Subsection (ii) requires the restored or
replaced water supply to be as permanent as the previous water supply
and Subsection (iii) requires the supply to not require excessive
maintenance. Subsection (iv) requires that the supply provide the owner
and the user with as much control and accessibility as exercised over
the previous water supply. This subsection also provides that the use
of a public water supply as a replacement water supply provides as much
control and accessibility as the previous supply. We are approving 25
Pa. Code 87.119(a)(1)(i) through (iv) and 88.107(a)(1)(i) through (iv).
There are no direct corresponding Federal regulations to these
sections. We find that these sections are no less effective than the
requirements found in the definition of the term ``replacement of water
supply'' in the Federal regulations at 30 CFR 701.5 because they help
return the water supply to its premining status.
Subsection (a)(1)(v) provides that to be adequate a restored or
replaced water supply must not result in more than a de minimis cost
increase to operate and maintain. As noted earlier in this rulemaking
(see our finding for 25 Pa. Code 87.1 and 88.1, definition of ``de
minimis cost increase''), the Director has not approved a ``de minimis
cost increase.'' Accordingly, we are not approving Subsection (a)(1)(v)
for the reasons noted above in 25 Pa. Code 87.1 and 88.1, the
definition of the term ``de minimis cost increase.'' This disapproval
is only to the extent the rule applies to surface coal mining
operations.
Similarly, Subsection (a)(2) provides that operators are only
required to provide for the permanent payment of increased operating
and maintenance costs if those costs represent more than a de minimis
cost increase. We are not approving this section to the extent that it
limits an operator's obligations by use of the term ``de minimis cost
increase.''
Subsection (a)(3) provides that the requirement to restore or
replace an affected water supply may be waived. The Federal regulations
regarding restoration or replacement of water supplies at 30 CFR 701.5,
the definition of the term, ``replacement of water supply,'' indicates
that replacement requirements may be satisfied by demonstrating that a
suitable alternative water source is available and could feasibly be
developed. However this satisfaction of a water supply replacement
requirement is acceptable only if the affected water supply is not
needed for the land use in existence at the time it was affected by
surface mining and the supply is not needed to achieve the postmining
land use. Pennsylvania's regulation at 25 Pa. Code 87.119(a)(3) allows
a waiver from the restoration or replacement obligations without
requiring a demonstration that a suitable alternative water source is
available and could feasibly be developed. Additionally, this section
could allow a waiver for water supply replacement under circumstances
other than those described in the Federal definition of the term,
``replacement of water supply,'' (i.e., the water supply is not needed
for the land use in existence at the time it was affected by surface
mining and the supply is not needed to achieve the postmining land
use). Therefore, we are not approving 25 Pa. Code 87.119(a)(3) and
88.107(a)(3) to the extent they would allow a waiver from the
requirements for replacing a water supply outside the requirements of
30 CFR 701.5 regarding the definition of the term, ``replacement of
water supply.''
Subsections (b), (c) and (d) provide for the presumption of
liability for pollution. Essentially, Subsection (b) provides that a
surface mine operator or mine owner is responsible without proof of
fault, negligence or causation for all pollution, except bacterial
contamination, and diminution of public or private water supplies
within 1000 linear feet of the boundaries of the areas bonded and
affected by coal mining operations except for haul and access roads.
The operator or owner must affirmatively prove these defenses by a
preponderance of the evidence. Subsection (c) only allows for five
defenses to the presumption: (1) The mine operator or owner was denied
access to conduct a pre-mining water supply survey; (2) the water
supply is not within 1,000 linear feet of the coal mining operations,
support areas [excluding haul and access roads] and overburden removal/
storage areas or areas affected by surface mining activities but not
bonded; (3) a pre-permit water supply survey, that is documented in the
permit application,
[[Page 25484]]
which shows that the pollution/diminutation [sic] existed prior to the
surface mining activities; (4) the pollution/diminution occurred as a
result of some cause other than surface mining activities; and (5) the
mine operator or owner was denied access to determine the cause of the
pollution/diminution. Subsection (d) requires the mine operator or
owner to notify Pennsylvania of the possible defenses, providing all
information including proof of service to the landowner or water supply
company that denying access for a survey could rebut the presumption.
In its amendment submission, Pennsylvania indicated that with or
without the rebuttable presumption of liability, a mine operator is
liable for replacing or restoring a water supply contaminated or
diminished by the operator's surface mining activities. The Federal
regulations do not provide for a similar presumption and do not
prohibit Pennsylvania from enacting a rebuttable presumption for water.
These subsections are not inconsistent with the requirements of SMCRA
and the Federal regulations because they do not eliminate an operator's
responsibility under Section 717(b) of SMCRA. If all the pollution or
diminution existed prior to the start of the coal mining operations,
then the supply was not affected by the coal mining operations. If
additional pollution or diminution occurred after the start of the coal
mining operations, then the operator would become liable for the damage
caused to the water supply by the coal mining operations. The
presumptions and the defenses to rebut the presumptions, do not relieve
the regulatory authority of its initial burden. If the evidence
demonstrates that a water supply is affected within the presumption
area, then the operator has the burden to rebut the presumption with
one of the five defenses. The ultimate burden remains with the
regulatory authority. Therefore, we are approving subsections (b), (c),
and (d).
Subsection (e) allows Pennsylvania to use money from the Surface
Mining Conservation and Reclamation Fund for the immediate replacement
of a water supply used for potable or domestic purposes when that
supply is required to protect public health or safety. This section is
the implementing regulation for Section 4.2(f)(3) of PASMCRA that we
discussed above. We are approving this provision for the same reason
that we are approving Section 4.2(f)(3) of PASMCRA.
Subsection (f) provides that PADEP will recover costs associated
with restoration or replacement water supplies from the operator or
mine owner. There is no similar provision in the Federal regulations.
We have found that this section is not inconsistent with the
requirements of SMCRA and the Federal regulations because under SMCRA
an operator is responsible for replacing a water supply that was
affected by the mining operations; this is just another means to
achieving that purpose. Thus we are approving this subsection.
Subsection (g) provides for operator cost recovery. This section
provides that if an operator successfully appeals a PADEP order, the
operator may recover reasonable costs incurred in the appeal.
Subsection (g) is the implementing regulation for Section 4.2(f)(5) of
PASMCRA. Section 4.2(f)(5) of PASMCRA was repealed by Pennsylvania in
House Bill 393 (see 66 FR 57662, 57664 [November 16, 2001] for OSM's
approval of Pennsylvania's repeal of this section). Because the
regulations at 25 Pa. Code 87.119(g) and 88.107(g) implement the
section of the statute that was repealed, there is no statutory
authority for Subsection (g) of the regulation. Therefore, we are not
approving the regulations at 25 Pa. Code 87.119(g) and 88.107(g).
Subsection (h) provides that nothing in this section prevents
anyone who claims water pollution or diminution of a water supply from
pursuing any other remedy that may be provided for in law or equity.
There is no Federal counterpart to this provision. Nonetheless,
landowners or water supply users have the full protection of Chapters
87 and 88 even while pursuing other avenues of redress. Since all the
protections of Chapter 87 and 88 remain available, we have determined
that this provision is not inconsistent with the requirements of SMCRA
or the Federal regulations and we are approving it.
Subsection (i) provides that an 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.
This subsection is the implementing regulation for Section 4.2(f)(4) of
PASMCRA that we discussed above. Please see our findings regarding that
section of the statute. We are approving 25 Pa. Code 87.119(i) and
88.107(i) to the extent noted in our discussion on Section 4.2(f)(4)
and not approving these regulations to the extent noted in that same
discussion.
Subsection (j) provides that nothing in this section limits PADEP's
authority under Section 4.2(f)(1) of PASMCRA. Section 4.2(f)(1)
provides for the replacement of water supplies. Subsection (j) is not
inconsistent with SMCRA or the Federal regulations and we are approving
it.
Subsection (k) provides that a surface mining operation conducted
under a permit issued before February 16, 1993, is not subject to
subsections (b)-(i) but is subject to subsections (a) and (j). Because
subsections (a) and (j) require the replacement of water supplies, we
have determined that Subsection (k) is no less effective than the
Federal regulations and we are approving it to the extent noted in our
discussions of subsections (a) and (j).
25 Pa. Code 87.147(b)(1), 88.121(b) and 88.209(b). These
subsections are the implementing regulations for the amended language
of Section 4(a)(2)(C) of PASCMRA that we discussed above. As with that
section, these regulations are no less effective than the ground cover
revegetation requirements of the Federal regulations at 30 CFR
816.116(a) and (b)(5). Therefore, we are approving these provisions.
25 Pa. Code 87.202, the definition of the term, ``best professional
judgment,'' 25 Pa. Code 87.207(b), 25 Pa. Code 88.502, the definition
of the term, ``baseline pollution load,'' and 25 Pa. Code 87.207(b).
These were all proposed for removal. However, in its December 23, 2003
letter, Pennsylvania informed us that it wishes to retain these
provisions as part of the approved program. Accordingly, they are not a
part of this rulemaking.
IV. Summary and Disposition of Comments
Public Comments
We first asked for public comments on the amendment in the March
12, 1999, Federal Register (64 FR 12269) (Administrative Record No. PA
853.07). We reopened the comment period in the July 8, 1999, Federal
Register (64 FR 36828) and again in the November 24, 2004 Federal
Register (69 FR 68285). We received public comments from: Amerikohl
Mining, Inc., dated March 29, 1999 (Administrative Record No. PA
853.08); the Pennsylvania Coal Association (PCA), dated April 9, 1999
(Administrative Record No. PA 853.09); Schmid & Company Inc. (Schmid),
Consulting Ecologists, dated April 9, 1999 (Administrative Record No.
PA 853.10); and Citizens for Pennsylvania's Future (PennFuture), dated
January 18, 2005 (Administrative Record No. 853.31).
Amerikohl Mining indicated that it was writing in support of the
referenced amendment and further indicated that adoption of the
proposed changes is a practical attempt to encourage significant
amounts of abandoned mine
[[Page 25485]]
reclamation and coal recovery which would otherwise not happen.
We appreciate Amerikohl's comments and believe our approval of this
amendment will lead to benefits such as those described by Amerikohl.
PCA indicated that it supports the amendment and believes the
legislative and regulatory changes are important to the continued
efforts to enhance remining opportunities and to encourage the
reclamation of abandoned mine lands by industry. Additionally, PCA
indicated that the water supply protection and replacement regulations
are important for clear and consistent regulatory interpretation and
enforcement.
We appreciate PCA's comments with regard to enhancing remining of
abandoned mine lands. We believe our approval of this portion of the
amendment will lead to additional reclamation of abandoned mine lands.
With regard to PCA's comments concerning water supply replacement, we
have determined that portions of Pennsylvania's submission as noted
previously are not consistent with SMCRA and the Federal regulations.
As a result, we have not approved portions of the water supply
replacement regulations for supplies affected by surface mining
operations. We have determined that changes noted above for the
regulations concerning water supplies affected by surface coal mining
will make Pennsylvania's program consistent and will lead to PCA's
goals of consistent regulatory interpretation and enforcement.
Schmid provided numerous comments on various sections of the
amendment. The comments are listed by the sections of PASMCRA and the
implementing regulations that were the subject of the comments.
25 Pa. Code 86.174(a). Schmid indicates that Stage 1 reclamation
standards are assumed to have been met when, among other things,
drainage controls have been installed. Schmid suggests that this
standard should be expanded to require some period of follow up (6
months to a year) to ensure that the installed controls are working
effectively.
The only change to this section proposed by Pennsylvania was to
replace a roman numeral I with the Arabic 1 (regarding Stage 1) in
Subsection (a) and to insert the word ``additional'' at the beginning
of Subsection (d). Neither of these changes substantively modifies this
section which was previously approved by OSM. Therefore, Schmid's
comment is not responsive to the amendment. Moreover, since we had
previously determined that this section was no less effective than the
Federal regulations and since the amendment did not substantively
modify this section, we do not have a reason to require Pennsylvania to
make the suggested change.
25 Pa. Code 86.251. Schmid indicates that this section is a very
positive and commendable addition to Pennsylvania's program.
We appreciate Schmid's comment in this regard.
25 Pa. Code 87.1 and 88.1. Schmid commented that the definition of
``reasonably available information'' in terms of its input to a water
supply survey is too subjective. Schmid questions what constitutes an
extraordinary effort or an excessive sum of money.
As we noted above, Pennsylvania only uses the term ``water supply
survey'' in its regulations at 25 Pa. Code 87.119 and 88.107 with
regard to those circumstances that operators can rebut the presumption
of liability for pollution as established in Subsection (b) of those
regulations. The Federal regulations do not define the term, ``water
supply survey.'' Since Pennsylvania only uses the term in conjunction
with an operator's ability to rebut the presumption of liability of
pollution, and rebutting the presumption of liability does not relieve
operators of liability for the replacement or restoration of water
supplies that were impacted by their mining operations, use of the term
does not make Pennsylvania's program less effective than the Federal
regulations.
Also under 25 Pa. Code 87.1, 88.1, 89.5, and 90.1, Schmid noted
that the definition of dry weather flow is proposed for deletion
because water discharges are believed to be more appropriately
regulated by State and Federal water quality laws and by EPA
regulations. Schmid agrees in part but is not confident that the two-
step review process will work. Additionally, Schmid is not convinced
that the mining agencies are doing a competent job of applying and
enforcing water quality controls. Schmid would prefer to see all of the
regulatory requirements imposed by a single regulatory entity that
should be willing to accept and carry out all of its responsibilities.
In its December 23, 2003, letter to us, Pennsylvania indicated that
it wished to retain the definitions of both dry weather flow and best
professional judgment. OSM had previously approved the inclusion of
this definition in Pennsylvania's approved program. Because
Pennsylvania has rescinded its desire to remove those definitions from
the approved program, it is no longer a part of the amendment and
Schmid's comment is no longer responsive to the amendment as revised.
25 Pa. Code 87.102, 88.92, 88.187, 89.52, 90.102. Schmid indicated
that these sections are proposed to be deleted because water discharges
are believed to be more appropriately regulated by State and Federal
water quality laws and by EPA regulations. Schmid also referenced its
previous comments regarding the definition of dry weather flow.
As we noted in the November 24, 2004, proposed rule in which we
reopened the public comment period for this amendment, Pennsylvania
informed us in a December 23, 2003, letter (Administrative Record No.
PA 853.23) that it wished to retain 25 Pa. Code 87.102, 88.92, 88.187,
89.52, and 90.102 as part of its approved program (69 FR at 68286-7).
We have accepted Pennsylvania's request and therefore, Schmid's comment
is no longer responsive to the amendment as revised.
25 Pa. Code 87.119, 88.107, and 88.292. Schmid noted that the new
provisions presume a mine operator is responsible for impacts to water
supplies located within 1,000 feet of the areas bonded and affected by
surface mining. Schmid was concerned that these areas could not be
accurately delineated and indicated that if a water supply is impacted
by a mining activity, even if it is outside the 1,000 foot zone, it is
within an area affected by the mining.
The Federal regulations require replacement or restoration of water
supplies affected by surface mining activities regardless of the
distance from the water supply to the mine. Pennsylvania's regulations
require the same thing. However, Pennsylvania's regulations are more
stringent than the Federal regulations in that they provide for a
presumption of liability for restoration or replacement if the supply
falls within the 1,000 foot zone described above. The Federal
regulations do not have a presumption of liability with regard to water
supplies. We have determined that this provision is not inconsistent
with SMCRA and the Federal regulations and we have approved it.
25 Pa. Code 87.147(b) and 88.121(b). Schmid commented on the
portion of 25 Pa. Code 87.147(b) which indicates that introduced
species may be used in the revegetation process when desirable and
necessary to achieve the postmining land use. Schmid indicated that
PADEP should not be encouraging the use of nonnative, alien or
introduced species. Schmid suggests that this section should
[[Page 25486]]
instead indicate that native species are to be used in the revegetation
process to achieve postmining land uses, except in exceptional
circumstances as determined by PADEP.
The Federal regulations at 30 CFR 816.111, like Pennsylvania's
regulation at 25 Pa. Code 87.147(b), provide that introduced species
may be used for establishing revegetation on disturbed areas where
desirable and necessary to achieve the post mining land use. We have
determined that Pennsylvania's regulation is no less effective than the
Federal requirement and we are approving it.
Schmid also commented on the proposal that states that plants used
for revegetation should be capable of self-regeneration and plant
succession. Schmid supports this provision, but noted that to determine
whether the plants in the revegetated area are capable of self-
regeneration and plant succession could take several years. Schmid
believes that it would be appropriate to impose a monitoring
requirement to ensure that the goal of a diverse, effective, and
permanent vegetative cover is achieved.
The Pennsylvania program contains monitoring requirements, such as
those recommended by Schmid, in its bond release requirements at 25 Pa.
Code 86.151 and 86.175. The regulations at 25 Pa. Code 86.151 provide
that liability under bonds posted for a surface mine continue for five
years after completion of augmented seeding, fertilization, irrigation
or other work necessary to achieve permanent vegetation of the site.
The regulations at 25 Pa Code 86.175 provide that Stage 3 bonds cannot
be released until that liability period has expired. Pennsylvania
conducts periodic inspections of reclaimed sites to monitor the
vegetation success and also conducts bond release inspections prior to
any final bond release. Therefore, Schmid's concerns are addressed by
the approved program.
Section 4(a) of PASMCRA. Schmid indicated that the amendment
requires that the permit application fee not exceed the cost of
reviewing, administering, and enforcing such permit. Schmid commented
that the environmental review of permit applications and the
enforcement of environmental permit requirements have been woefully
inadequate and that PADEP typically responds to this complaint by
pointing to a lack of staff and resources. Schmid suggests that the
application fees be raised as they have been too small for too long.
The only change that Pennsylvania made to Section 4(a) of PASMCRA
is to change the word ``minerals'' to ``coal'' in the first sentence.
The sentence now requires a person who wishes to mine coal by the
surface mining method to apply for a permit. While Schmid correctly
notes that Section 4(a) of PASMCRA requires that permit fees not exceed
the cost of reviewing, administering and enforcing a permit, this
portion of PASMCRA was not the subject of the amendment and therefore,
Schmid's comment is not responsive to the amendment. Schmid submitted
the same comments for Subsection 4(a)(2). However, the only amendment
to that subsection establishes a ground cover standard for previously
mined areas proposed to be remined. Schmid's comment is not responsive
to the amended portion of Subsection 4(a)(2).
Section 4(g)(1) of PASMCRA. Schmid suggested that phase 1 bond
release not occur until the operator has demonstrated, through follow-
up monitoring for at least six months, that pollution treatment
provisions are being effective.
As we noted in our finding on Section 4(g)(1), this provision has
no precise Federal counterpart. However, we found it to be consistent
with Section 519(b) of SMCRA, which requires the regulatory authority
to evaluate ``whether pollution of surface and subsurface water is
occurring, the probability of continuance of such pollution, and the
estimated cost of abating such pollution.'' Therefore, we approved the
change to Section 4(g)(1).
Section 4(g)(2) of PASMCRA. Schmid indicates that this section
proposes that no bond be released so long as the lands are contributing
suspended solids to streamflow or runoff outside the permit area in
excess of the requirements of law or until soil productivity for prime
farmlands has returned. Schmid commented that for Pennsylvania to
determine whether either of these conditions exists suggests that
monitoring is being done, but none is mentioned. Schmid indicated that
monitoring for suspended solids and soil productivity should be
required as a prerequisite to bond release. Further, Schmid recommends
that there not be an either/or situation (either no suspended solids in
the water or the return of productive soil); the word ``or'' should be
changed to ``and.'' Schmid also noted that this section proposes that a
portion of a bond may be released as long as provisions for sound
future maintenance by the operator or landowner have been made with
PADEP. Schmid commented that the type of provisions that qualify as
sound future management should be defined.
The only change that Pennsylvania made to Section 4(g)(2) of
PASMCRA was to preface the requirements for bond release of this
section with the phrase ``At Stage 2.'' Our review of this section
found that the addition of this phrase clarified that the bond release
requirements of this section only apply to Stage 2. The actual
requirements for bond release were not changed. Therefore, Schmid's
comments questioning the requirements for release is not responsive to
this amendment.
Section 4(g)(3) of PASMCRA. Schmid noted that this section requires
that the remainder of the bond be released when the operator has made
provisions for the sound future treatment of pollutional discharges, if
any. Schmid commented that the type of provisions that qualify as sound
future treatment of pollutional discharges should be specified.
Pennsylvania noted in the amendment submission that this portion of
PASMCRA allows bond release on the remaining area in a situation where
there is a postmining discharge associated with the permit and the
permittee provides financial assurance for long-term treatment of the
discharge to include areas used for water treatment. Pennsylvania also
noted that in practice this involves replacing a reclamation bond with
a financial assurance instrument that guarantees continued treatment of
the postmining discharge. Finally, Pennsylvania noted that replacement
of all or part of a reclamation bond can take place only when the
permittee meets the appropriate standards for bond release at a stage
of reclamation.
In its comments submitted as part of the amendment, Pennsylvania
made it clear that all bond release requirements must be met before any
replacement of bonds with a financial assurance instrument can take
place. Finally, Pennsylvania noted that replacement of a standard bond
with a financial assurance for the cost of long term treatment is in
practical terms a bond adjustment. Since all bond release standards
will be met, and since one such standard is compliance with applicable
water pollution requirements, Pennsylvania has effectively defined the
term ``sound future treatment of pollutional discharges.'' Therefore,
Pennsylvania has addressed the subject of Schmid's concerns.
Sections 4(g.1), (g.2), and (g.3) of PASMCRA. Schmid submitted
several comments on these sections. However, as noted above,
Pennsylvania requested that we remove these sections from this program
amendment, because its definition of ``minimal impact
[[Page 25487]]
postmining discharges'' and the regulations for postmining discharges
were not included in the proposed program amendment. Since we are
granting that request, and taking no further action in this rulemaking
with respect to proposed sections 4(g.1), (g.2), and (g.3), Schmid's
comments on these sections likewise need not be addressed in this
rulemaking.
Section 4.2(f)(2). Schmid had several concerns with the presumption
of liability provisions of this section. Schmid was concerned about
delineating the areas bonded and affected by mining. Schmid was also
concerned because the presumption applies to areas that are not
permitted and bonded. Finally, Schmid indicated that the five defenses
for presumption of liability can exonerate an operator of liability for
water supply replacement.
The areas bonded and affected are determined through the mining
permit maps and visual observation if the operator has affected areas
beyond those delineated on the permit maps. The presumption of
liability extends beyond all areas affected even if they are not
permitted. While the Federal regulations do not provide for presumption
of liability with regard to water supply diminution or contamination,
there is nothing in the regulations prohibiting a State from enacting
such presumption.
The regulations for presumption of liability for water supply
replacement apply only to the presumption that an operator caused the
water supply problems. These regulations do not release the operator
from liability to replace water supplies damaged by their mining
activities. If the operator prevails on one or more of the five
defenses from presumption, it simply means that PADEP must investigate
the causes of the water supply problems. The operator has only rebutted
the presumption that he caused the problems. If PADEP finds, through
its investigation, that the operator is responsible for the water
supply problems, even after a successful presumption rebuttal, the
liability for restoration or replacement remains with the operator.
Section 4.2(i) and 18(a). Schmid agreed with Pennsylvania's
provisions regarding authority for entering property and the incentives
for remining previously affected areas. We appreciate Schmid's comments
with regard to these provisions.
Section 18(a.1)(1). Schmid indicated that the title Secretary of
Environmental Resources should be changed to the Secretary of
Environmental Protection.
Pennsylvania is aware of the need to change the title. In this
case, use of the incorrect title does not make this provision any less
effective than the Federal regulations. Therefore, we did not require
Pennsylvania to make the change to the statute.
In its letter of January 18, 2005, PennFuture asked that we reopen
the comment period for two weeks or in the alternative consider
comments attached to the letter. The comments attached to the letter
were comments that PennFuture submitted to OSM on October 15, 2002, in
response to an OSM advance notice of proposed rulemaking. We decided to
accept the comments attached to PennFuture's January 18, 2005, letter.
PennFuture's first comment concerned the substitution of
alternative financial guarantees for traditional SMCRA bonds and how
their use would affect termination of jurisdiction. PennFuture was
concerned that use of a financial guarantee (such as a trust fund
established to treat acid mine drainage) would lead to bond release and
therefore termination of the regulatory authority's jurisdiction over a
minesite. PennFuture commented that the Federal regulations allow
release of a bond upon its replacement with another bond that provides
equivalent coverage, but this substitution does not constitute a bond
release. PennFuture also notes that an existing bond could be released
upon establishment of a trust fund or other adequate financial
guarantee of perpetual treatment, but that the substitute guarantee
must be treated as the equivalent of a performance bond under Section
509 of SMCRA. Section 509 does not permit bond release and the
termination of jurisdiction over a site where mine drainage treatment
operations are occurring.
The provision at 25 Pa. Code 86.152(j), which we are approving in
this rulemaking, provides that no bond release relieves the operator of
the ``responsibility to treat discharges of mine drainage emanating
from or hydrologically connected to the site, to the standards in the
permit, the act, the Clean Streams Law, the Federal Water Pollution
Control Act and the rules and regulations thereunder.'' Further, there
is no bond release for that portion of the permit required for water
treatment operations. Therefore, water treatment operations remain
surface mining activities covered by the regulatory program. Thus,
jurisdiction is not terminated.
We agree with PennFuture that bonds can be released upon
establishment of a trust fund or other financial guarantee if those
instruments are treated as the equivalent of a performance bond under
Section 509 of SMCRA. Pennsylvania regulations at 25 Pa. Code 86.158(f)
provide for the use of trust funds as collateral bonds and as we noted
in our discussion of that section, these provisions make Pennsylvania's
regulations regarding trust funds no less effective than any other form
of collateral bond.
PennFuture's next comment concerned the form or characteristics of
alternative financial guarantees. PennFuture indicated that an NPDES
permit alone (as allegedly suggested by some Pennsylvania regulatory
officials) would not suffice as an enforcement mechanism that could
lead to bond release under the Federal termination of jurisdiction
rule. PennFuture further indicated that alternative financial
mechanisms must be sufficient to cover treatment costs as well as
related expenses.
As we noted earlier, Pennsylvania's regulations have established
annuities or trust funds as collateral bonds as noted in 25 Pa. Code
86.158(f). Those regulations provide that trust funds are established
to guarantee that money is available for PADEP to pay for the treatment
of postmining pollutional discharges. Through these regulations,
Pennsylvania has satisfied PennFuture's concerns by requiring a form of
collateral bond for treatment of discharges that will guarantee
sufficient funds for treatment.
PennFuture also commented that both PADEP and citizens of
Pennsylvania should be named beneficiaries of the proceeds from
financial assurance mechanisms.
Pennsylvania's regulation at 25 Pa. Code 86.158(f)(2), that we
approved in this rulemaking, provides that collateral bonds in the form
of annuities or trust funds must, among other things, provide that
PADEP is irrevocably established as the beneficiary of the trust fund
or of the proceeds from the annuity. Because PADEP is a government
entity serving the citizens of Pennsylvania, this provision satisfies
PennFuture's concerns.
PennFuture commented that alternative bonding systems could be
established to ensure treatment of discharges. While new Section 4(d.2)
of PASMCRA allows PADEP to ``establish alternative financial assurance
mechanisms which shall achieve the objectives and purposes of the
bonding program,'' the only such ``alternatives'' contained in this
amendment are site-specific trust funds, and life insurance policies.
Neither of these mechanisms constitutes a true ``alternative bonding
system,'' but rather both are additional forms of collateral bonds that
can be used in Pennsylvania's conventional
[[Page 25488]]
bonding system. Therefore, this comment is not responsive to the
amendment.
PennFuture commented that alternative financial mechanisms for
treatment of discharges will not work if there are insufficient funds
in those instruments. As we noted above, the Pennsylvania regulations
require that sufficient funds be placed in the alternative financial
mechanisms to guarantee that sufficient funds are in place for
treatment of discharges.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Pennsylvania program
(Administrative Record No. PA 853.02). We received a letter dated
January 19, 1999, from the U.S. Department of Agriculture, Natural
Resources Conservation Service (NRCS) (Administrative Record No. PA
853.04) with two comments. The first comment indicated that the
proposed re-establishment of vegetative cover appears to be adequately
covered. NRCS recommended that a provision be made to insure erosion
and sedimentation is adequately controlled during stabilization and
afterwards if such a provision is not covered elsewhere in the existing
program.
In our review of Pennsylvania's program, we found that NRCS's first
comment has been addressed. The comment appears to be directed to
Pennsylvania's changes to its regulations at 25 Pa. Code 87.147 and
88.121. In both cases, Pennsylvania added language that allows a
reduced vegetative cover for reclamation of areas that were previously
mined and not reclaimed to the standards of PASMCRA and the regulations
at 25 Pa. Code Chapter 87. As noted above, we have determined that
Pennsylvania's revised regulation is no less effective than the
requirements of the Federal regulations at 30 CFR 816.116(a) and
(b)(5). The revised language requires the vegetative cover to be
adequate to control erosion and achieve the approved postmining land
use. In addition, Pennsylvania's regulation at 25 Pa. Code 87.106
provides for the construction of sediment control measures to prevent
runoff outside the affected area and to minimize erosion to the extent
possible. Therefore, these provisions respond to NRCS's concerns that
erosion and sedimentation are adequately controlled.
In its second comment, NRCS requested that the definition of the
term ``water supply'' include agricultural use if it is not already
covered. We have determined that Pennsylvania's program for the
replacement of water supplies affected by surface mines includes those
water supplies used for agricultural purposes. Our review of
Pennsylvania's regulations found that the term ``water supply,'' as
defined at 25 Pa. Code 87.1 and 88.1, includes an existing or currently
designated or currently planned source of water or facility or system
for the supply of water for agricultural uses, among others.
We received letters from the U.S. Department of Labor, Mine Safety
and Health Administration's (MSHA) New Stanton Office dated January 20,
1999 (Administrative Record No. PA 853.05), and its Wilkes-Barre Office
dated January 26, 1999 (Administrative Record No. PA 853.06). Both
offices indicated that they did not identify any conflicts with
existing MSHA regulations.
In response to the request for comments we made in the November 24,
2004, Federal Register Notice, MSHA's Arlington, Virginia, Office wrote
us a letter dated December 20, 2004 (Administrative Record No. PA
853.28) which indicated that if the amendment were adopted, it would
have no impact on the activities of the agency. We also received a
letter from MSHA's Wilkes-Barre, Pennsylvania, Office dated January 7,
2005 (Administrative Record No. PA 853.30), in which MSHA indicated
that it did not have any comments or concerns with the amendment.
Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to
solicit comments and 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.) or the Clean
Air Act (42 U.S.C. 7401 et seq.).
On December 22, 1998, we asked for concurrence on the amendment
(Administrative Record No. PA 853.02). EPA responded in a letter dated
May 25, 2000 (Administrative Record No. PA 853.19), by indicating that
it determined that the proposed amendment complies with the Clean Water
Act with one exception; deletion of 25 Pa. Code sections 87.102, 88.92,
88.292, 89.52, and 90.102 that require compliance with 40 CFR part 424,
Federal effluent standards for the coal mining industry. EPA noted that
while comments in the amendment made it clear that Pennsylvania intends
to continue to require compliance with Federal standards, a statement
to that effect must be included in the text of the amendment itself.
EPA provided its concurrence under the condition that either the
sections requiring compliance with 40 CFR part 434 effluent standards
not be deleted, or the 40 CFR part 434 effluent standards be included
in the text of the amendment by reference.
As we noted in the November 24, 2004, proposed rule in which we
reopened the public comment period for this amendment, Pennsylvania
informed us in a December 23, 2003, letter (Administrative Record No.
PA 853.23), that it wished to retain as part of its approved program
the above referenced regulations which provide effluent limits. We have
accepted Pennsylvania's request and therefore, the conditions of EPA's
concurrence have been met.
EPA had two other comments regarding the amendment. The first
comment involved the deletion of remining standards for treatment of
preexisting discharges. EPA noted that the amendment deletes the
requirement for applying best professional judgment (BPJ) treatment to
preexisting discharges from abandoned mines during remining. EPA
indicated that although Pennsylvania requires compliance with BPJ
requirements under Section 301(p) of the Clean Water Act, it recommends
that Pennsylvania retain the BPJ requirements in its mining regulations
in order to provide guidance to remining applicants.
In its letter to us dated December 23, 2003, Pennsylvania revised
the proposed amendment to retain, as part of its approved program, the
regulations dealing with BPJ. Therefore, EPA's concerns in this regard
have been addressed.
EPA's second comment involved Stage 3 bond release criteria. EPA
noted that the proposed revisions in Sections 4(g.1) and (g.2) of
PASMCRA specify the conditions for allowing Stage 3 bond release for
reclaimed mines that have minimal-impact post mining discharges. EPA
indicated that although the terms ``minimal impact post mining
discharges'' and ``substantially improved water quality'' are somewhat
vague, it does not object to the proposed revisions for Stage 3 release
as long as the discharges comply with applicable National Pollutant
Discharge Elimination System (NPDES) regulations and water quality
standards for the receiving stream. EPA further noted that prior to
final bond release, groundwater discharges from underground mines and
surface water discharges from surface or underground mines are required
to meet 40 CFR part
[[Page 25489]]
434 limit. Discharges for ground water seeps from surface mines may be
addressed by BPJ rather than 40 CFR part 434 requirements in accordance
with the January 28, 1992, guidance memorandum from EPA's NPDES Program
Branch. EPA concluded by noting that determination of BPJ limits must
be based on criteria established in 40 CFR 125.3(d) and more stringent
limits may be necessary to comply with water quality standards. After
reclamation and final bond release, recurrence of pollutants to waters
of the U.S. through seeps or surface runoff may considered as point
sources, subject to NPDES permitting and compliance with BPJ limits and
water quality standards.
As we noted above, in its letter of December 23, 2003, Pennsylvania
removed Sections 4(g.1)-(g.3) from its amendment because its definition
of ``minimal impact postmining discharges'' and the regulations for
postmining discharges were not included in the proposed program
amendment. Since Pennsylvania has removed these provisions from the
amendment, there is no further action required on our part.
Pennsylvania's removal of these sections addresses EPA's concerns.
In response to our request for comments in the November 24, 2004,
Federal Register Notice, EPA wrote us a letter dated December 27, 2004
(Administrative Record No. PA 853.27) indicating that it was pleased
that Pennsylvania had decided to retain the language regarding effluent
limits for discharges from areas disturbed by coal mining activities
that originally was proposed to be removed from the Pennsylvania
program. EPA further indicated that it did not have any other comments.
We appreciate EPA's review of the amendment.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and the ACHP on amendments that may have an effect on historic
properties. On December 22, 1998, we requested comments on
Pennsylvania's amendment (Administrative Record No. PA 853.02). The
Pennsylvania Historical and Museum Commission (PHMC) responded on
January 14, 1999 (Administrative Record No. PA 853.03). PHMC indicated
that it is primarily concerned with surface mining and reclamation
projects that might impact cultural resources. PHMC noted that most
reclamation projects impact areas already disturbed by mining
activities and thus, this amendment to Pennsylvania's program will
generally have little impact on important cultural resources. However,
PHMC noted that there is potential for historic mining or industrial
structures (e.g., coke ovens, etc.) to be impacted by such work.
PHMC further indicated that the definition of the term ``remining
area'' at 25 Pa. Code 86.252 includes a statement that additional
undisturbed land may be within a remining area if the permittee
demonstrates that a larger area is needed to accomplished backfilling
and grading of the unreclaimed area or is needed for support activities
for the remining activity. PHMC is concerned that the ability of a
reclamation project to include previously undisturbed land suggests
that there could be impacts to cultural resources not identified during
the original mining operation. PHMC suggests that an addition be made
to 25 Pa. Code 86.252 to indicate that cultural resources on previously
mined and on undisturbed property within the project area must be
identified and evaluated as part of the reclamation plan.
We have determined that PHMC's concerns have been addressed through
areas of the approved Pennsylvania program. The Pennsylvania program
provides that permittees must identify archaeological, cultural and
historic resources in their permit applications. For surface mines,
this requirement is found at 25 Pa. Code 87.42(2), for anthracite mines
at 25 Pa. Code 88.22(2), for underground mines at 25 Pa. Code 89.38(a),
and for coal refuse disposal at 25 Pa. Code 90.11(a)(3). The areas
discussed under Pennsylvania's definition of ``remining area'' must be
permitted and therefore, must be evaluated for the presence of
archaeological, cultural and historic resources as noted in the above
noted sections of the approved program. As a result, we have determined
that there is no need for Pennsylvania to revise its definition of
``remining area.''
V. OSM's Decision
Based on the above findings we approve, with certain exceptions,
the amendment Pennsylvania sent us on December 22, 1998, and as revised
on December 23, 2003, and April 13, 2004. We are not approving the
following sections to the extent noted:
4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to the
extent that it would allow Phase 3 bond release.
4.12(b) of PASMCRA. We are not approving Subsection (b) to the
extent that it creates an alternative bonding system.
In 25 Pa. Code Chapter 86.281(e), the last sentence which states,
``If the actual cost of reclamation by PADEP exceeds the amount
reserved, additional funds from the Remining Financial Assurance Fund
will be used to complete reclamation'' is not approved.
25 Pa. Code Chapter 87.1 and 88.1. Definition of ``de minimis cost
increase.'' The definition is not approved as it applies to coal mining
activities.
25 Pa. Code 87.119, 88.107. We are not approving Subsection (a) to
the extent that it would allow the replaced water supply to be of a
lesser quantity and quality than the premining water supply or not
provide for temporary replacement of water supplies. We are not
approving Subsection (a)(1)(v) to the extent it would pass on operating
and maintenance costs of a replacement water supply in excess of the
operating and maintenance costs of the premining water supply to the
landowner or water supply user. We are not approving Section (a)(2) to
the extent that an operator is not required to provide for all
increased operating and maintenance costs of a restored or replaced
water supply. Finally, we are not approving Subsection (a)(3) to the
extent it would allow a waiver from the requirements for replacing a
water supply outside the requirements of 30 CFR 701.5 regarding the
definition of the term, ``replacement of water supply.'' We are
approving 87.119 (a), (a)(1)(v), (a)(2) and (a)(3) and 88.107(a),
(a)(1)(v), (a)(2) and (a)(3) to the extent it applies to government
financed reclamation.
25 Pa. Code 87.119(g) and 88.107(g). These sections are not
approved.
25 Pa. Code 87.119(i) and 88.107(i). We are not approving
Subsection (i) to the extent that it would allow Phase 3 bond release.
To implement this decision, we are amending the Federal regulations
at 30 CFR 938.12, 938.15 and 938.16 which codify decisions concerning
the Pennsylvania program. We find that good cause exists under 5 U.S.C.
553(d)(3) to make this final rule effective immediately. Section 503(a)
of SMCRA requires that the State's program demonstrate that the State
has the capability of carrying out the provisions of the Act and
meeting its purposes. Making this regulation effective immediately will
expedite that process. SMCRA requires consistency of State and Federal
standards.
VI. Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly,
[[Page 25490]]
30 CFR 732.17(a) requires that any change of an approved State program
must be submitted to OSM for review as a program amendment. The Federal
regulations at 30 CFR 732.17(g) prohibit any changes to approved State
programs that are not approved by OSM. In the oversight of the
Pennsylvania program, we will recognize only the statutes, regulations,
and other materials we have approved, together with any consistent
implementing policies, directives, and other materials. We will require
Pennsylvania to enforce only approved provisions.
VII. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by Section 3 of Executive Order 12988 and has determined that 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 because
each 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
the Federal regulations at 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.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and Section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
Pennsylvania does not regulate any Native Tribal lands.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 certifies that a portion of the
provisions in 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.) because they are based upon counterpart
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. In making
the determination as to whether this rule would have a significant
economic impact, the Department relied upon the data and assumptions
for the counterpart Federal regulations. The Department of the Interior
also certifies that the provisions in this rule that are not based upon
counterpart Federal regulations 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.). This determination is based on
the fact that the provisions are administrative and procedural in
nature and are not expected to have a substantive effect on the
regulated industry.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that a portion
of the State provisions are based upon counterpart Federal regulations
for which an analysis was prepared and a determination made that the
Federal regulation was not considered a major rule. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are
[[Page 25491]]
administrative and procedural in nature and are not expected to have a
substantive effect on the regulated industry.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that a portion of
the State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an analysis was prepared and
a determination made that the Federal regulation did not impose an
unfunded mandate. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 14, 2005.
Brent Wahlquist,
Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 938 is amended as
set forth below:
PART 938--PENNSYLVANIA
0
1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Section 938.12 to add paragraph (c) to read as follows:
Sec. 938.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(c) We are not approving the following portions of provisions of
the proposed program amendment that Pennsylvania submitted on December
18, 1998:
(1) 4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to
the extent that it would allow Phase 3 bond release.
(2) 4.12(b) of PASMCRA. We are not approving Subsection (b) to the
extent that it creates an alternative bonding system.
(3) 25 Pa. Code 86.281(e). The last sentence which states, ``If the
actual cost of reclamation by the Department exceeds the amount
reserved, additional funds from the Remining Financial Assurance Fund
will be used to complete reclamation'' is not approved.
(4) 25 Pa. Code 87.1 and 88.1, Definition of ``de minimis cost
increase.'' The definition is not approved as it applies to coal mining
activities.
(5) 25 Pa. Code 87.119 and 88.107. With regard to coal mining
activities, we are not approving Subsection (a) to the extent that it
would allow the replaced water supply to be of a lesser quantity and
quality than the premining water supply or does not provide for
temporary replacement of water supplies. We are not approving
Subsection (a)(1)(v) to the extent it would pass on operating and
maintenance costs of a replacement water supply in excess of the
operating and maintenance costs of the premining water supply to the
landowner or water supply user. We are not approving Section (a)(2) to
the extent that an operator is not required to provide for all
increased operating and maintenance costs of a restored or replaced
water supply. Finally, we are not approving Subsection (a)(3) to the
extent it would allow a waiver from the requirements for replacing a
water supply outside the requirements of 30 CFR 701.5 regarding the
definition of the term, ``replacement of water supply.''
(6) 25 Pa. Code 87.119(g) and 88.107(g). These sections are not
approved.
(7) 25 Pa. Code 87.119(i) and 88.107(i). We are not approving
Subsection (i) to the extent that it would allow Phase 3 bond release.
0
3. 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
------------------------------------------------------------------------
* * * * * * *
December 18, 1998............. May 13, 2005..... In PASMCRA, Section 3
Definition of
``Total Project
Costs;'' Sections
3.1; 4(a), (d),
(d.2), (g), and (h);
4.2(f) (partial
approval); 4.2(i);
4.6(i) and (j); 4.7;
4.10; 4.11; 4.12
(partial approval);
4.13; 18(a), (a.1),
(a.2), and (a.3);
18(f), (g)(4) and
(5); 18.7; 18.9;
18.10.
25 Pa. Code 86.142
Definitions of
``Annuity,''
``Trustee,'' and
``Trust Fund;'' 25
Pa. Code 86.151(b),
(c), and (j);
86.152(a) and (b);
86.156(b);
86.157(3), (4), (5),
(6), (7), and (8);
86.158(c)(6), (e),
(f), and (g);
86.161(3); 86.168;
86.171(a), (b)(6)
and (7), (f)(4),
(g), and (h);
86.174(a) and (d);
86.175(a) and
(b)(3); 86.182(a)(3)
and (4), (d), (e),
(f), (g); 86.195(b),
86.251-253; 86.261-
86.270; 86.281(a)-
(d); 86.281(e)
(partial approval);
86.282-284; 86.291-
295; 86.351-359.
25 Pa. Code 87.1
Definitions of
``Water Supply,''
``Water Supply
Survey''; deletion
of 87.11-21; 87.119
(partial approval);
87.147(b).
25 Pa. Code 88.1
Definitions of
``Water Supply,''
``Water Supply
Survey''; 88.107
(partial approval);
88.121(b);
88.209(b).
------------------------------------------------------------------------
[FR Doc. 05-9570 Filed 5-12-05; 8:45 am]
BILLING CODE 4310-05-P