Pennsylvania Abandoned Mine Land Reclamation Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-121-FOR]

Pennsylvania Abandoned Mine Land Reclamation Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: OSM is reopening the public comment period on a proposed

amendment to the Pennsylvania Abandoned Mine Land Reclamation (AMLR)

Plan (hereinafter referred to as the Pennsylvania Program) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.

1201 et seq., as amended. The proposed amendment adds a new section

``F'' entitled Government Financed Construction Contracts (GFCC) to

authorize the incidental removal of coal at AML sites that would not

otherwise be mined and reclaimed under the Title V program. The

proposed amendment also includes the Program Requirements and

Monitoring Requirements related to the use of GFCC for that purpose.

The proposed amendment is intended to improve the efficiency of the

Pennsylvania program by allowing the Government-financed construction

exemption in Section 528 of SMCRA to be applied in cases involving less

than 50% financing only in the limited situation where the construction

constitutes a government approved and administered abandoned mine land

reclamation project under Title IV of SMCRA. The amendment is also

intended to authorize the use of excess spoil from a valid, permitted

coal mining operation for the reclamation of an abandoned unreclaimed

area outside of the permit area.

The comment period is being reopened because Pennsylvania has, at

OSM's request, submitted portions of its State law which it believes

provides specific authority to allow the State Regulatory Authority to

approve exemptions for the incidental removal of coal pursuant to

government-financed reclamation projects.

DATES: Written comments must be received by 4:00 p.m., [E.D.T.]

November 18, 1998.

ADDRESSES: Written comments should be mailed or hand delivered to

Robert Biggi, Field Office Director, at the address listed below.

Copies of the Pennsylvania program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Harrisburg Field Office. Mr. Robert J. Biggi,

Director, Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg

Transportation Center (Amtrack) 415 Market Street, Harrisburg,

Pennsylvania 17101. Telephone: (717) 782-4036.

FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director,

Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg

Transportation Center (Amtrack) 415 Market Street, Harrisburg,

Pennsylvania 17101. Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

On July 30, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background on the Pennsylvania

program, including the Secretary's findings and the disposition of

comments can be found in the July 30, 1982 Federal Register (47 FR

33079). Subsequent actions concerning the AMLR program amendments are

identified at 30 CFR 938.20 and 938.25.

II. Description of the Proposed Amendment

By letter dated November 21, 1997 (Administrative Record No. PA-

855.00), the Pennsylvania Department of Environmental Protection

(PADEP) submitted proposed Program Amendment No. 2 to the Pennsylvania

Abandoned Mine Reclamation Plan. In addition, PADEP also submitted the

following documents: Basis of Authority for the Proposed Amendment, AML

Amendment Conformance with 30 CFR Section 884.13, Assistant Counsel's

Opinion of Authority for GFCC, PADEP Organization Chart and the Office

of Mineral Resources Management Organization Chart. The proposed

amendment is intended to improve the efficiency of the Pennsylvania

program by allowing the Government-financed

[[Page 59260]]

construction exemption in Section 528 of SMCRA to be applied in certain

cases involving less than 50% financing. The inspection forms and

related instructions to be utilized to monitor the GFCC program are

part of the amendment. Pennsylvania submitted the proposed amendment at

its own initiative.

OSM announced receipt of the proposed amendment in the December 29,

1997, Federal Register (62 FR 67590) and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on January 28, 1998. However, OSM's review determined

that several items contained in the proposed amendments required

clarification. As a result, a letter requesting clarification on three

items was sent to Pennsylvania dated June 5, 1998 (Administrative

Record No. PA-855.08). Pennsylvania initially responded in its letter

dated June 17, 1998 (Administrative Record No. PA 855.09), that it

would require additional time to respond to OSM's request, and that it

expected to provide a response by July 15. A response was received from

Pennsylvania in its letter dated July 7, 1998 (Administrative Record

No. PA 855.10). Therefore, OSM reopened the public comment period

regarding Pennsylvania's response in the July 28, 1998, Federal

Register (63 FR 40237). The comment period closed on August 12, 1998

and no comments were received. However, OSM subsequently informed

Pennsylvania that its program appeared to lack the statutory authority

to implement the exemption for incidental coal removal pursuant to

government-financed reclamation projects. Therefore, in a letter dated

October 8, 1998 (Administrative Record No. PA 855.12), Pennsylvania

subsequently submitted portions of its state law which it believes

provides specific authorization to implement the proposed changes to

its AML Plan. Pennsylvania requested to have the statutory provisions

included as part of Pennsylvania's Abandoned Mine Reclamation Plan

Amendment. The proposed additions are as follows:

52 P.S. Sec. 1396.3

``Government-financed reclamation contract'' shall mean:

(1) For the purposes of Section 4.8, a federally-funded or

state-funded and approved abandoned mine reclamation contract

entered into between the department and an eligible person or entity

who has obtained special authorization to engage in incidental and

necessary extraction of coal refuse pursuant to government-financed

reclamation which is either:

(i) a State-financed reclamation contract less than or equal to

fifty thousand dollars ($50,000) total project costs, where up to

five hundred (500) tons of coal is extracted, including a

reclamation contract where less than five hundred (500) tons is

removed and the government's cost of financing reclamation will be

assumed by the contractor under the terms of the no-cost contract;

(ii) a State-financed reclamation contract authorizing the

removal of coal refuse, including where reclamation is performed by

the contractor under the terms of the no-cost contract with the

department, not involving any reprocessing of coal refuse on the

project area or return of any coal refuse material to the project

area;

(iii) a State-financed reclamation contract greater than fifty

thousand dollars ($50,000) total project costs or a federally-

financed abandoned mine reclamation project: Provided, That the

department determines in writing that extraction of coal is

essential to physically accomplish the reclamation of the project

area and is incidental and necessary to reclamation; or (iv)

federally financed or state-financed extraction of coal which the

department determines in writing to physically extinguish an

abandoned mine fire that poses a threat to the public health, safety

and welfare.

(2) For purposes of determining whether or not extraction of

coal is incidental and necessary under section 4.8, the department

shall consider standard engineering factors and shall not in any

case consider the economic benefit deriving from extraction of coal.

Necessary extraction of coal shall in no case include:

(i) the extraction of coal in an area adjacent to the previously

affected area which will be reclaimed; or

(ii) the extraction of coal beneath the previously affected area

which will be reclaimed.

``Surface mining activities'' shall mean the extraction of coal

from the earth or from waste or stockpiles or from pits or banks by

removing the strata or material which overlies or is above or

between them or otherwise exposing and retrieving them from the

surface, including, but not limited to, strip, auger mining,

dredging, quarrying and leaching, and all surface activity connected

with surface or underground mining, including, but not limited to,

exploration, site preparation, entry, tunnel, drift, slope, shaft

and borehole drilling and construction and activities related

thereto, but not including those portions of mining operations

carried out beneath the surface by means of shafts, tunnels or other

underground mine openings. ``Surface mining activities'' shall not

include any of the following:

(1) Extraction of coal or coal refuse removal pursuant to a

government-financed reclamation contract for the purposes of section

4.8.

(2) Extraction of coal as an incidental part of Federal, State

or local government-financed highway construction pursuant to

regulations promulgated by the Environmental Quality Board.

(3) The reclamation of abandoned mine lands not involving

extraction of coal or excess spoil disposal under a written

agreement with the property owner and approved by the department.

(4) Activities not considered to be surface mining as determined

by the United States Office of Surface Mining, Reclamation and

Enforcement and set forth in department regulations.

``No-cost reclamation contract'' shall mean a contract entered

into between the department and an eligible person for the purpose

of reclaiming unreclaimed abandoned mine lands and which does not

involve the expenditure of Commonwealth funds.

Sec. 1396.4h. [also referred to as ``section 4.8''] Government-

financed reclamation contracts authorizing incidental and necessary

extraction of coal or authorizing removal of coal refuse

(a) No person may engage in the extraction of coal or in removal

of coal refuse pursuant to a government-financed reclamation

contract without a valid surface mining permit issued pursuant to

this act unless such person affirmatively demonstrates that he is

eligible to secure special authorization pursuant to this section to

engage in a government-financed reclamation contract authorizing

incidental and necessary extraction of coal or authorizing removal

of coal refuse. The department shall determine eligibility before

entering into a government-financed reclamation contract authorizing

incidental and necessary extraction of coal or authorizing removal

of coal refuse. The department may provide the special authorization

as part of the government-financed reclamation contract: Provided,

That the contract contains and does not violate the requirements of

this section. The department shall not be required to grant a

special authorization to any eligible person. The department may,

however, in its discretion, grant a special authorization allowing

incidental and necessary extraction of coal or allowing removal of

coal refuse pursuant to a government-financed reclamation contract

in accordance with this section. (b) Only eligible persons may

secure special authorization to engage in incidental and necessary

extraction of coal or to engage in removal of coal refuse pursuant

to a government-financed reclamation contract. A person is eligible

to secure a special authorization if he can demonstrate, at a

minimum, to the department's satisfaction that:

(1) The contractor or any related party or subcontractor which

will act under its direction has no history of past or continuing

violations which show the contractor's lack of ability or intention

to comply with the acts or the rules and regulations promulgated

thereunder, whether or not such violation relates to any adjudicated

proceeding agreement, consent order or decree, or which resulted in

a cease order or civil penalty assessment. For the purposes o'f this

section, the term ``related party'' shall mean any partner,

associate, officer, parent corporation, affiliate or person by or

under common control with the contractor.

(2) The person has submitted proof that any violation related to

the mining of coal by

[[Page 59261]]

the contractor or any related party or subcontractor which will act

under its direction of any of the acts, rules, regulations, permits

or licenses of the department has been corrected or is in the

process of being corrected to the satisfaction of the department,

whether or not the violation relates to any adjudicated proceeding,

agreement, consent order or decree or which resulted in a cease

order or civil penalty assessment. For purposes of this section, the

term ``related party'' shall mean any partner, associate, officer,

parent corporation, subsidiary corporation, affiliate or person by

or under common control with the contractor.

(3) The person has submitted proof that any violation by the

contractor or by any person owned or controlled by the contractor or

by a subcontractor which acts under its direction of any law, rule

or regulation of the United States or any state pertaining to air or

water pollution has been corrected or is in the process of being

satisfactorily corrected.

(4) The person or any related party or subcontractor which will

act under the direction of the contractor has no outstanding unpaid

civil penalties which have been assessed for violations of either

this act or the act of June 22, 1937 (P.L. 1987, No. 394), known as

``The Clean Streams Law'' (35 P.S. Sec. 691.1 et seq.), in

connection with either surface mining or reclamation activities.

(5) The person or any related party or subcontractor which will

act under the direction of the contractor has not been convicted of

a misdemeanor or felony under this act or the acts set forth in

subsection (e) and has not had any bonds declared forfeited by the

department.

(c) Any eligible person who proposes to engage in extraction of

coal or in removal of coal refuse pursuant to a government-financed

reclamation contract may request and secure special authorization

from the department to conduct such activities under this section.

The department may issue the special authorization as part of the

government-financed reclamation contract: Provided, That the

contract contains and does not violate the requirements of this

section. A special authorization can only be obtained if a clause is

inserted in a government-financed reclamation contract authorizing

such extraction of coal or authorizing removal of coal refuse and

the person requesting such authorization has affirmatively

demonstrated to the department's satisfaction that he has satisfied

the provisions of this section. A special authorization shall only

be granted by the department prior to the commencement of extraction

of coal or commencement of removal of coal refuse on a project area.

In order to be considered for a special authorization by the

department, an eligible person must demonstrate at a minimum that:

(1) The primary purpose of the operation to be undertaken is the

reclamation of abandoned mine lands.

(2) The extraction of coal will be incidental and necessary, or

the removal of coal refuse will be required, to accomplish the

reclamation of abandoned mine lands pursuant to a government-

financed reclamation contract.

(3) Incidental and necessary extraction of coal or in removal of

coal refuse will be confined to the project area being reclaimed.

(4) All extraction of coal or in removal of coal refuse and

reclamation activity undertaken pursuant to a government-financed

reclamation project will be accomplished pursuant to:

(i) the applicable environmental protection performance

standards promulgated in the rules and regulations relating to

surface coal mining listed in the government-financed reclamation

contract; and

(ii) additional conditions included in the government-financed

reclamation contract by the department.

(d) The contractor will pay any applicable per-ton reclamation

fee established by the United States Office of Surface Mining

Reclamation and Enforcement (OSMRE) for each ton of coal extracted

pursuant to a government-financed reclamation project.

(e) Prior to commencing extraction of coal or commencement of

removal of coal refuse pursuant to a government-financed reclamation

project, the contractor shall file with the department a performance

bond payable to the Commonwealth and conditioned upon the

contractor's performance of all the requirements of the government-

financed reclamation contract, this act, ``The Clean Streams Law'',

the act of January 8, 1960 (1959 P.L. 2119, No. 787) (35 P.S.

Sec. 4001 et. seq.), known as the ``Air Pollution Control Act'', the

act of September 24, 1968 (Pub. L. 1040, No 318) (52 P.S. Sec. 30.51

et seq.), known as the ``Coal Refuse Disposal Control Act,'' where

applicable, the act of November 26, 1978 (Pub. L. 1375, No. 325) (32

P.S. Sec. 693.1 et seq.), known as the ``Dam Safety and

Encroachments Act, and, where applicable, the act of July 7, 1980

(Pub. L. 380, No. 97) (35 P.S. Sec. 6018.101 et seq.), known as the

``Solid Waste Management Act''. An operator posting a bond

sufficient to comply with this section shall not be required to post

a separate bond for the permitted area under each of the acts herein

above enumerated. For government-financed reclamation contracts

other than a no-cost reclamation contract, the criteria for

establishing the amount of the performance bond shall be the

engineering estimate, determined by the department, of meeting the

environmental obligations enumerated above. The performance bond

which is provided by the contractor under a contract other than a

government-financed reclamation contract shall be deemed to satisfy

the requirements of this section provided that the amount of the

bond is equivalent to or greater than the amount determined by the

criteria set forth in this subsection. For no-cost reclamation

projects in which the reclamation schedule is shorter than two (2)

years the bond amount shall be a per acre fee, which is equal to the

department's average per acre cost to reclaim abandoned mine lands;

provided, however, for coal refuse removal operations, the bond

amount shall only apply to each acre affected by the coal refuse

removal operations. For long-term, no-cost reclamation projects in

which the reclamation schedule extends beyond two (2) years, the

department may establish a lesser bond amount. In these contracts,

the department may in the alternative establish a bond amount which

reflects the cost of the proportionate amount of reclamation which

will occur during a period specified.

(f) The department shall insert in government-financed

reclamation contracts conditions which prohibit coal extraction

pursuant to government-financed reclamation in areas subject to the

restrictions of Section 4.2 (52 P.S. Sec. 1396.4b.), except as

surface coal mining is allowed pursuant to that section.

(g) Any person engaging in extraction of coal pursuant to a no-

cost government-financed reclamation contract authorized under this

section who affects a public or private water supply by

contamination or diminution shall restore or replace the affected

supply with an alternate supply adequate in quantity and quality for

the purposes served.

(h) Extraction of coal or removal of coal refuse pursuant to a

government-financed reclamation contract cannot be initiated without

the consent of the surface owner for right of entry and consent of

the mineral owner for extraction of coal. Nothing in this section

shall prohibit the department's entry onto land where such entry is

necessary in the exercise of police powers.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 884.15 and 30 CFR

732.17, OSM is now seeking comment on whether the amendment proposed by

Pennsylvania satisfies the applicable requirements for the approval of

program amendments. Specifically, OSM is seeking comments on the

incorporation of the statutory references as submitted on October 8,

1998 (Administrative Record No. PA 855.12) into the program amendment

submission. Comments should address whether the proposed amendment with

these statutory references and definitions satisfy the applicable

program approval criteria of 30 CFR 884.15 and 30 CFR 732.17. If the

amendment is deemed adequate, it will become part of the Pennsylvania

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under ``DATES'' or at locations other than the Harrisburg Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) under Executive Order

[[Page 59262]]

12866 (Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State and Tribal abandoned mine land reclamation plans and revisions

thereof since each such plan is drafted and promulgated by a specific

State or Tribal, not by OSM. These standards are also not applicable to

the actual language of State regulatory programs and program amendments

for the same reason. Under sections 503 and 505 of SMCRA (30 U.S.C.

1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions

on proposed State regulatory programs, program amendments, abandoned

mine land reclamation plans and revisions thereof submitted by the

States must be based solely on a determination of whether the submittal

is consistent with Titles IV and V of SMCRA and its implementing

Federal regulations and whether the other requirements of 30 CFR Parts

730, 731, 732 and 884 have been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

compliance with the National Environmental Policy Act (42 U.S.C. 4332)

by the Manual of the Department of the Interior (516 DM 6, appendix 8,

paragraph 8.4B(29)), and since section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that agency decisions on proposed State regulatory

program provisions do not constitute major Federal actions within the

meaning of section 102(2)(C) of the National Environmental Policy Act

(42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 27, 1998.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-29397 Filed 11-2-98; 8:45 am]

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