Pennsylvania Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR part 938

[PA-124-FOR]

Pennsylvania Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Pennsylvania Regulatory Program (hereinafter referred to as the

Pennsylvania Program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA), as amended. Pennsylvania has submitted this

proposed amendment to reflect changes made to the Pennsylvania Surface

Mining Conservation and Reclamation Act (PASMCRA) by Acts 173 and 43.

The proposed amendment also contains regulations added, amended or

deleted in responses to these changes. This proposal modifies some

requirements and adds other requirements dealing with remining and

reclamation, postmining discharges, and water supply protection/

replacement.

DATES: Written comments must be received by 4:00 p.m., E.D.T. April 12,

1999. If requested, a public hearing on the proposed amendment will be

held on April 6, 1999. Requests to speak at the hearing must be

received by 4:00 p.m, E.D.T., on March 29, 1999.

ADDRESSES: Written comment and requests to testify at the hearing

should be mailed or hand-delivered to Mr. Robert J. Biggi, Director,

Harrisburg Field Office at the first address listed below.

Copies of the Pennsylvania program, the proposed amendment, a

listing of any scheduled public meetings or hearing, and all written

comments received in response to this notice will be available for

public review at the address listed below during normal

[[Page 12270]]

business hours, Monday through Friday, excluding holidays:

Office of Surface Mining Reclamation and Enforcement, Harrisburg

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

415 Market Street, Harrisburg, Pennsylvania 17101, Telephone: (717)

782-4036.

Pensylvania Department of Environmental Protection, Bureau of

Mining and Reclamation, Rachel Carson State Office Building, Post

Office Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717)

787-5103.

Each requester may receive, free of charge, one copy of the

proposed amendment by contacting the OSM Harrisburg Field Office.

FOR FURTHER INFORMATION CONTACT:

Mr. Robert J. Biggi, Director Harrisburg Field Office, Telephone: (717)

782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

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

approved the Pennsylvania program. Background on the Pennsylvania

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

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

33079). Subsequent actions concerning the Pennsylvania program

amendments are identified at 30 CFR 938.25.

II. Discussion of the Proposed Amendment

By letter dated December 18, 1998 (Administrative Record No. PA-

853.01), the Pennsylvania Department of Environmental Protection

(PADEP) submitted a proposed amendment to its program pursuant to

remining and reclamation, postmining discharges, and water supply

protection/replacement. The proposal included two documents:

``Provisions of Pennsylvania's Statute--Surface Mining Conservation and

Reclamation Act--Submitted for Program Amendment,'' and ``Provisions of

Pennsylvania's Regulations--25 Pa. Code Chapters 86-90--Submitted for

Program Amendment.''

Pennsylvania enacted Act 173 in 1992 and Act 43 in 1996. These Acts

amended PASMCRA. In the document titled ``Provisions of Pennsylvania's

Statute--Surface Mining Conservation and Reclamation Act--Submitted for

Program Amendment,'' PADEP indicated that not all of the changes to

PASMCRA resulting from Acts 173 and 43 are relevant to Pennsylvania's

approved program. Only changes that are relevant to the approved

program are being submitted for program amendment. These changes are

summarized below.

PASMCRA

Under Sec. 3. ``Definitions,'' PADEP is proposing to add

definitions for ``Government-financed Reclamation Contract,'' ``Total

Project Costs,'' and ``No-cost Reclamation Contract''. The amendment

proposes to amend the definition for ``Surface Mining Activities,'' by

specifically excluding from the definition the following four

activities: (1) extraction of coal or coal refuse removal pursuant to a

government-financed reclamation contract for the purposes of section

4.8, (2) extraction of coal as an incidental part of Federal, State or

local government highway construction pursuant to regulations

promulgated by the Environmental Quality Board, (3) the reclamation of

abandoned mine lands not involving extraction of coal or spoil disposal

under a written agreement with the property owner and approved by the

department, and (4) activities not considered to be surface mining as

determined by the United States Office of Surface Mining Reclamation

and Enforcement and set forth in department regulations.

PADEP is proposing to amend PASMCRA Sec. 3.1, ``Operator's License;

Withholding or Denying Permits or Licenses; Penalty.'' The proposed

changes deal with licensing requirements for surface and underground

operators and changes that relate to ownership and control and the

criteria for permit issuance.

PADEP is proposing to amend PASMCRA Sec. 4 titled, ``Mining Permit;

Reclamation Plan; Bond.'' In subsection (a) this amendment proposes to

replace the term ``minerals'' with the term ``coal.'' Lesser vegetation

standards for proposed remining areas previously disturbed by surface

mining activities that were not reclaimed to the standards of PASMCRA

are discussed in subsection (a)(2). Subsection (d) adds life insurance

policies, annuities and trust funds to the list of acceptable forms of

collateral bonds. Subsection (d)(2) gives the Department the authority

to establish new forms of financial assurance in the bonding program,

including financial assurance for postmining discharges. Subsection (g)

allows any person with an interest in the bond to apply for a bond

release. New subsections (g.1), (g.2) and (g.3) are proposed to be

added to PASMCRA. These subsection allow bond release in situations

where there is a postmining discharge associated with the permit and

the permittee provides financial assurance for long-term treatment of

the discharge. Bond release in contingent upon the construction of

passive treatment systems and the establishment of a site-specific

trust fund for each discharge. Subsection (h) is proposed to be amended

to define bond forfeiture procedures and surety reclamation of bond

forfeiture sites.

PADEP is proposing to amend PASMCRA Sec. 4.2 titled ``General Rule

Making; Health and Safety.'' Subsection f(2) is amended to assign

responsibility for replacing water supplies affected by surface mining

activities. Under certain conditions defined in this subsection, a mine

operator is presumed to be liable for water loss, contamination or

diminution. Section (i) is a new subsection added to define PADEP's

authority to enter property to conduct inspections or investigations.

PADEP is proposing to amend PASMCRA Sec. 4.6 titled, ``Remining of

Previously Affected Areas.'' The bond release procedures under section

(i) were modified to make the amount of bond released at each stage of

reclamation the same as specified in PASMCRA Sec. 4(g). The amendment

to subsection (j) changes the revegetation success standard that PADEP

is authorized to require when it determines a different standard is

integral to the proposed pollution abatement plan.

PADEP is proposing to amend PASMCRA Sec. 4.7, ``Anthracite Mine

Operators Emergency Bond Fund,'' to open the emergency bond fund to

anthracite surface coal mine operators. The fund is presently open only

to deep mine operators.

PADEP is proposing to add Sec. 4.8 to PASMCRA. This section is

titled, ``Government-financed Reclamation Contracts Authorizing

Incidental and Necessary Extraction of Coal or Authorizing Removal of

Coal Refuse.'' Subsection (a) of this proposed addition provides the

circumstances under which a person may engage in extraction of coal or

removal of coal refuse pursuant to a government-financed reclamation

contract. These activities will not require a surface mining permit if

the person engaging in these activities demonstrates eligibility to

secure special authorization pursuant to this section. PADEP will be

responsible for determining eligibility.

Subsection (b) of proposed Sec. 4.8 states the conditions under

which a person is eligible to secure a special authorization.

Subsection (b)(1) requires the contractor or any related party or

subcontractor to have no history of past or continuing violations which

show lack of ability to comply with the act or

[[Page 12271]]

rules. For the purposes of this section, the term ``related party''

means any partner, associate, officer, parent corporation, affiliate or

person by or under common control with the contractor. Subsection

(b)(2) provides that the person has submitted proof that any violation

related to the mining of coal by the contractor or any related party or

subcontractor which will act under its direction has been corrected or

is in the process of being corrected. For purposes of this section, the

term ``related party'' means any partner, associate, officer, parent

corporation, subsidiary corporation, affiliate or person by or under

common control with the contractor. Subsection b(3) provides that the

person has submitted proof that any violation by the contractor or by

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

which acts under its direction of any law, rule or regulation of the

United States or any state pertaining to air or water pollution has

been corrected or is in the process of being satisfactorily corrected.

Subsection b(4) provides that the person or any related party or

subcontractor which will act under the direction of the contractor has

no outstanding unpaid civil penalties which have been assessed for

violations of either this act or the Clean Streams Law (Pennsylvania

Law (P.L.) 1987, No. 394) in connection with either surface mining or

reclamation activities. Subsection b(5) provides that the person or any

related party or subcontractor which will act under the direction of

the contractor has not been convicted of a misdemeanor or felony under

this act or the acts set forth in subsection (e) and has not had any

bonds declared forfeited by the department.

Subsection (c) establishes the conditions under which any eligible

person who proposes to engage in extraction of coal or in removal of

coal refuse pursuant to a government-financed reclamation contract may

request and secure special authorization from the department to conduct

such activities under this section. A special authorization can only be

obtained if a clause is inserted in a government-financed reclamation

contract authorizing such extraction of coal or authorizing removal of

coal refuse and the person requesting such authorization has

affirmatively demonstrated to the department's satisfaction that he has

satisfied the provisions of this section. A special authorization shall

only be granted by the department prior to the commencement of

extraction of coal or commencement of removal of coal refuse on a

project area. This section further lists factors that must be

demonstrated in order to be considered for a special authorization.

Subsection (d) provides that the contractor will pay any applicable

per-ton reclamation fee established by the United States Office of

Surface Mining Reclamation and Enforcement for each ton of coal

extracted pursuant to a government-financed reclamation project.

Subsection (e) provides that prior to commencing extraction of coal

or commencement of removal of coal refuse pursuant to a government-

financed reclamation project, the contractor shall file with the

department a performance bond payable to the Commonwealth and

conditioned upon the contractor's performance of all the requirements

of the government-financed reclamation contract, this act, the Clean

Streams law, the Air Pollution Control Act (1959 P.L. 2119, No. 787),

the Coal Refuse Disposal Control Act (P.L. 1040, No. 318), the Dam

Safety and Encroachments Act (P.L. 1375, No. 325), and the Solid Waste

Management Act (P.L. 380, No. 97). An operator posting a bond

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

separate bond for the permitted area under each of the above acts. For

government-financed reclamation contracts other than a no-cost

reclamation contract, the criteria for establishing the amount of the

performance bond shall be the engineering estimate, determined by the

department, of meeting the environmental obligations enumerated above.

The performance bond which is provided by the contractor under a

contract other than a government-financed reclamation contract shall be

deemed to satisfy the requirements of this section provided that the

amount of the bond is equivalent to or greater than the amount

determined by the criteria set forth in this subsection. For no-cost

reclamation projects which the reclamation schedule is shorter than two

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

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

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

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

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

reclamation schedule extends beyond two (2) years, the department may

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

in the alternative establish a bond amount which reflects the cost of

the proportionate amount of reclamation which will occur during a

period specified.

Subsection (f) provides that the department shall insert in

government-financed reclamation contracts conditions which prohibit

coal extraction pursuant to government-financed reclamation in areas

subject to the restrictions of section 4.2 except as surface coal

mining is allowed pursuant to that section.

Subsection (g) provides that any person engaging in extraction of

coal pursuant to a no-cost government-financed reclamation contract

authorized under this section who affects a public or private water

supply by contamination or diminution shall restore or replace the

affected supply with an alternate supply adequate in quantity and

quality for the purposes served.

Subsection (h) provides that extraction of coal or removal of coal

refuse pursuant to a government-financed reclamation contract cannot be

initiated without the consent of the surface owner for right of entry

and consent of the mineral owner for extraction of coal. Nothing in

this section shall prohibit the department's entry onto land where such

entry is necessary in the exercise of police powers.

PADEP is proposing to add Sec. 4.12 to PASMCRA. This section is

titled, ``Financial Guarantees to Insure Reclamation; Payments to the

Remining Financial Assurance Fund.'' Subsection (a) authorizes PADEP to

establish programs to provide financial guarantees to insure

reclamation to operators who reclaim abandoned mine lands through

remining. This section describes how the programs will be funded and

requires PADEP to establish underwriting methods.

Subsection (b) provides that premium payments will be deposited

into the Remining Financial Assurance Fund and will be reserved in a

special account to be used in case of operator forfeiture. When the

special account becomes actuarially sound, excess payments may be used

pursuant to section 18(a.1) and (a.2).

Subsection (c) provides that payments under this subsection shall

excuse the operator from the requirement to post a bond under this act

with respect to the remining permit for which payment is made.

Subsection (d) provides that the financial guarantees program may

be discontinued immediately and notice published in the Pennsylvania

Bulletin if twenty-five per cent or greater of the outstanding bond

obligation for the financial guarantees program is subject

[[Page 12272]]

to forfeiture. The special account established in the Remining

Financial Assurance Fund for the financial guarantees program shall be

the sole source of funds underwriting the financial guarantees program,

and the Commonwealth shall not be obligated to expend any funds beyond

the amount of the special account.

PADEP is proposing to add Sec. 4.13 to PASMCRA. This section is

titled, ``Reclamation Bond Credits.'' Subsection (a) provides that a

bond credit, financially backed by a special account for that purpose

established in section 18(a.2), in the form of a bond letter, may be

issued by the department to a licensed mine operator for voluntary

reclamation of abandoned mine lands as approved by the department. This

section specifies the conditions that PADEP will use to determine

whether or not to issue a bond credit.

Subsection (b) provides that an operator may apply bond credits

which have been issued by the department against any reclamation bond

obligation selected by the operator on unmined or previously mined

areas except as specified in this section.

Subsection (c) provides that the department may approve utilization

of a bond credit in combination with conventional collateral or surety

agreements.

Subsection (d) provides that the department may require, as a

condition of granting the bond credit, that the operator post a

contract performance bond to insure that the operator completes the

reclamation proposed to result in the bond credit. The performance bond

is to be at least in an amount necessary to ensure reclamation of those

areas proposed to be reclaimed and shall be released by the department

upon completion of the work described in the approved reclamation plan.

Subsection (e) provides that bond credits are transferable to

another qualified operator approved by the department.

Subsection (f) provides that the special account established in the

Remining Financial Assurance Fund for the bond credit program shall be

the sole source of funds underwriting the bond credit program, and the

Commonwealth shall not be obligated to expend any funds beyond the

amount of the special account.

Subsection (g) provides that bond credits earned by a qualified

operator may be used on a single permit or on multiple permits,

whichever the operator chooses. A bond credit may be used two times;

however, the bond credit cannot be used a second time until the

department releases the bond credit from its first use. Any bond credit

that is not used within five years from the date that it is earned or

released will expire, including bond credits that have been

transferred.

PADEP is proposing to amend Sec. 18 of PASMCRA. This section is

titled, ``surface Mining Conservation and Reclamation Fund; Remining

Environmental Enhancement Fund; Remining Financial Assurance Fund;

Department Authority for Awarding of Grants.'' Subsection (a) is

amended to include section (a.1), a.2), (a.3) and (a.4). These

subsections address the use of funds for the remining and reclamation

incentives created by the amendments to PSAMCRA discussed earlier.

These amendments create two special funds in the State Treasury to be

known as the ``Remining Environmental Enhancement Fund,'' and the

``Remining Financial Assurance Fund.'' These subsections describe the

source of funding for the funds and indicate that the Remining

Environmental Enhancement Fund is to be used for operating a remining

and reclamation incentive program, including designating areas suitable

for reclamation by remining and establishing and operating a remining

operator's assistance program, but not including a bond credit or

financial guarantees program. The Remining Financial Assurance Fund is

to be used to provide financial assurance for the reclamation bond

credit program set forth in section 4.13 and for the financial

guarantees program set forth in section 4.12. Requirements for operator

participation in the funds are listed.

Subsection (f) was modified to allow any licensed mine operator to

propose reclamation of a bond forfeiture area.

Subsection (g) modifies the internal rules for the Mining and

Reclamation Advisory Board, PADEP's advisory committee on matters

relating to surface coal mining and reclamation.

PADEP is proposing to amend Sec. 18.7 of PASMCRA, titled,

``Creation of Small Operator's Assistance Fund.'' The amendment limits

PADEP's use of Small Operator Assistance Funds to uses authorized by

the Office of Surface Mining Reclamation and Enforcement and the

Federal Surface Mining Control and Reclamation Act of 1977.

PADEP is proposing to add Sec. 18.9 to PASMCRA. This new section is

titled, ``Search Warrants'' and provides that the PADEP may apply for a

search warrant for the purposes of inspecting or examining any

property, premises, place, building, book, record, or other physical

evidence, of conducting tests, of taking samples, or of seizing books,

records and other physical evidence. The warrant shall be issued on

probable cause. The amendment further defines sufficient probable

cause.

PADEP is proposing to add Sec. 18.10 to PASMCRA. This new section

is titled, ``Construction of Act'' and signifies PADEP's intent that

PASMCRA not violate the Federal Clean Water Act or the Federal Surface

Mining control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.).

The additions and changes to regulations proposed by the amendment

are described as follows:

The amendment will result in changes to the following existing

provisions of the Pennsylvania program:

[Title 25 of the PA Code]

86.142 87.1 88.1 89.5

86.151-152 87.119 88.107

86.156-86.158 84.147 88.121

(inclusive)

86.161 88.209

86.168

86.171

86.174-86.175

86.182

86.195

[[Page 12273]]

The following sections are proposed to be added to the Pennsylvania

program:

[Title 25 of the PA Code]

86.251-86.253 (inclusive)

86.281-86.284 (inclusive)

86.291-86.295 (inclusive)

86.351-86.359 (inclusive)

The following sections are proposed to be deleted:

[Title 25 of the PA Code]

87.11-87.21 88.92 89.52-89.53 90.102-90.103

(inclusive)

87.102-87.103 88.93

88.187-88.188

88.292-88.293

A brief summary of the proposed changes and additions to the

Pennsylvania program are found below.

Chapter 86

The changes made to 25 PA Code 86.142 ``Definitions,'' are the

additions of definitions for ``Annuity,'' ``Trustee,'' and ``Trust

Fund.''

A revision to 25 PA Code 86.151 ``Period of Liability,'' provides

that liability under bonds related to the risk of water pollution from

coal refuse disposal activities shall continue for a period of time

after completion of the activities. The period of time will be

determined by PADEP on a case-by-case basis. Subsection (j) was added

to emphasize an operator's responsibility to treat discharges of mine

drainage emanating from or hydrologically connected to the site.

A revision proposed to subsection (a) of 25 PA Code 86.152, ``Bond

Adjustments,'' provides that PADEP may require additional bond if the

cost of reclamation, restoration or abatement work increases so that an

additional amount of bond is necessary. Subsection (b) is modified to

include the estimated costs of restoration or abatement

responsibilities as factors to be satisfied when an operator is seeking

a bond reduction.

A revision proposed to 25 PA Code 86.157, ``Form of the Bond,''

provides for the new types of collateral bonds allowed by proposed

changes to PASMCRA. These bond types include annuities, trust funds,

and life or property and casualty insurance.

Two revisions are proposed for 25 PA Code 86.157, ``Special Terms

and Conditions for Surety Bonds.'' Subsection (3) is revised to read as

follows: ``The Department will not accept a single bond from a surety

company for a permittee if the single bond is in excess of the surety

company's maximum single risk exposure as provided in The Insurance

Company Law of 1921 (40 P.S. Secs. 341-991), unless the surety company

complies with The Insurance Company Law of 1921 for exceeding the

maximum single risk exposure.'' Subsection (4) is proposed to be

deleted and the remaining subsections are proposed to be renumbered

accordingly.

Several revisions are proposed for 25 PA Code 86.158, ``Special

Terms and Conditions for Collateral Bonds.'' Subsection (c)(6) was

modified to read, ``The Department will only accept certificates of

deposit from banks or banking institutions licensed or chartered to do

business in the United States.'' New subsections (e) and (f) were

added. Subsection (e) specifies the conditions that must be fulfilled

to secure a collateral bond in the form of a life insurance policy.

Subsection (f) specifies the conditions that must be met to secure a

collateral bond in the form of an annuity or a trust fund. Finally the

subsection that was formerly labeled as (e) is proposed to be

renumbered as subsection (g).

A sentence is proposed to be added at the end of section 25 PA Code

86.161, ``Phased Deposits of Collateral.'' The sentence is, ``Interest

accumulated by phased deposits of collateral shall become part of the

bond, and may be used to reduce the amount of the final phased

deposit.''

Several revisions are proposed for 25 PA Code 86.168, ``Terms and

Conditions for Liability Insurance.'' The revision to subsection (a)

requires a permittee to submit proof of liability insurance coverage

before a license is issued. The revision to subsection (b) requires

liability insurance to be written on an occurrence basis and to provide

for bodily injury. Subsection (c) adds a sentence that states, ``The

limits of the rider shall be at least equivalent to the limits of the

general liability portion of the policy.'' Subsection (d) requires the

insurance policy to include a rider requiring notification to PADEP

within 30 days prior to substantive changes in the policy or prior to

termination or failure to renew. Subsection (e) increases the minimum

insurance coverage for bodily injury to $500,000 per person and $1

million aggregate and minimum insurance coverage for property damage to

$500,000 for each occurrence and $1 million aggregate. Subsection (f)

changes the regulatory action to be taken in the event a permittee

fails to maintain the insurance. If the insurance is not maintained,

PADEP will issue a notice of intent to suspend the license or permit.

If the proof of insurance is not submitted within 30 days, the

Department will suspend the license or permit.

A proposed revision to 25 PA Code 86.171, ``Procedures for Seeking

Release of Bond,'' allows any person having an interest in the bond to

file an application with PADEP for bond release. Subsection (b)(6) is

added which provides that the newspaper advertisement for bond release

must state whether any postmining pollutional discharges have occurred

and describe the type of treatment provided for the discharges. The

former subsection (b)(6) has been renumbered to (b)(7). Subsection

(f)(4) changed a reference from subsection (g) to subsection (h).

Subsection (g) has been added. This subsection states, ``If the

permittee is unwilling or unable to request bond release, and if the

criteria for bond release have been satisfied, the Department may

release the bond by following the procedures of subsections (a)(2),

(b), (d)-(f).'' Former subsection (g) has been renumbered to subsection

(h).

Some minor modifications are proposed for 25 PA Code 86.174,

``Standards for Release of Bonds.'' The proposed regulation replaces

the Roman Numeral ``I'' with the Arabic ``1'' in subsection (a), and

inserted the word ``Additional'' at the beginning of subsection (d).

Some minor modifications are also made to 25 PA Code 86.175,

``Schedule for Release of Bond.'' Subsection (a)

[[Page 12274]]

provides that no bond will be released until the Department finds that

the permittee has complied with Secs. 86.171, 86.172 and 86.174

(relating to procedures for seeking release of bond; criteria for

release of bond; and standards for release of bonds). Subsection (b)(3)

has been modified by deleting the following phrase, ``. . . and final

inspection and procedures of Sec. 86.171 (relating to procedures for

seeking release of bond) have been satisfied.''

Several modifications to 25 PA Code 86.182, ``Procedures,'' have

been proposed. Subsection (a)(3) has been added. This section provides

that if bond forfeiture is required, PADEP will notify the surety of

the requirement to pay the amount of the bond to PADEP within 30 days.

The money will be held in escrow. If court of competent jurisdiction

finds that the Commonwealth was not entitled to all or a portion of the

amount forfeited, the interest shall accrue proportionately to the

surety in the amount determined to be improperly forfeited. Former

subsection (a)(3) has been renumbered to (a)(4). Subsection (d) has

been added. This subsection provides that a surety can reclaim a site

in lieu of paying the amount of forfeited bond within 30 days. The

remainder of this subsection provides the procedures to be followed if

a surety elects to reclaim a site. Former subsections (d)-(f) are

renumbered as subsections (e)-(g).

A minor modification was made to 25 PA Code 86.195, ``Penalties

Against Corporate Officers.'' A cross-reference was revised from

Sec. 87.14 to Sec. 86.353 to be consistent with other changes to

Chapter 86.

PADEP is proposing to add numerous sections dealing with incentives

to encourage remining of abandoned mine lands and bond forfeiture

sites. These sections will be summarized briefly below.

25 PA Code 86.251, ``Purpose,'' gives the purpose of this section

as encouraging remining to eliminate hazards to human health and

safety, abating pollution of surface and groundwaters and the

contribution of sediment to adjacent areas, restoring land to

beneficial uses and recovering remaining coal resources.

25 PA Code 86.252, ``Definitions,'' adds definitions for

``Abandoned mine lands,'' ``Act, ``Bond credit,'' ``Financial

guarantee,'' ``Remining,'' ``Remining area,'' and ``Tangible net

worth.''

25 PA Code 86.253, ``Operator and Project Qualification,''

subsection (a) gives the requirements an operator must meet to

participate in the remining and reclamation incentives program.

Subsection (b) provides the requirements an operator must demonstrate

to get a project approved under the remining and reclamation incentives

program.

PADEP proposes to add 25 PA Code 86.281, ``Financial Guarantees to

Insure Reclamation--General.'' This section has four subsections.

Subsection (a) describes a special account in the Remining Financial

Assurance Fund to be used to financially assure bonding. Subsection (b)

provides that operators must demonstrate their eligibility to

participate in the program. Subsection (c) was not submitted for

approval. Subsection (d) provides limits on the amount of financial

guarantees the Department will issue on permits. Subsection (e)

describes use of the Fund to complete reclamation of forfeited sites.

25 PA Code 86.282, ``Participation Requirements,'' describes

demonstrations required of an operator to be able to participate in the

program. The operator must demonstrate one of the following: Under

subsection (a)(1), the operator must be able to post a collateral bond

and demonstrate appropriate experience in coal mining and reclamation,

under subsection (a)(2) the operator must be able to obtain a surety

bond or letter of credit collateral bond, or under subsection (a)(3)

the operator must prove eligibility to self-bond. Subsection (b)

provides that an operator will not be approved to participate in the

program when the financial guarantees exceed limits established in 25

PA Code 86.281(d). Subsection (c) provides that any person submitting

false information in the financial test will render the operator

ineligible to participate in the program.

25 PA Code 86.283, ``Procedures,'' lists the criteria that govern

an operator's participation in the program. Subsection (a) discusses

payments to the fund. Subsection (b) requires the operator to make the

annual payment until the bond is reduced or released. Subsection (c)

provides that an operator approved to participate in the program is not

required to pay the reclamation fee for the remining area. Subsection

(d) indicates the Department will issue a letter to the operator

specifying the amount of money in the special account which has been

reserved as collateral for the reclamation of the remining area.

Subsection (e) provides the obligation will be reduced or released

prior to any other bond submitted by the operator to cover the

reclamation obligations of that permit.

25 PA Code 86.284 is titled ``Forfeiture.'' Subsection (a) provides

that a bond forfeiture will result in the Department declaring forfeit

the amount reserved for the operator in the special fund. Subsection

(b) indicates that forfeiture will not relieve the operator from

meeting requirements of PASMCRA. Subsection (c) indicates that on

declaration of forfeiture, the Department will use bond money and

reserve funds to complete reclamation of the minesite. Subsection (d)

provides that the financial guarantees program will be discontinued

immediately if 25% or more of the total outstanding financial

guarantees are declared forfeit. Subsection (e) lists forfeiture

actions that could cause the financial guarantees program to be

suspended.

25 PA Code 86.291 is titled, ``Financial Assurance for Bond

Credit--General.'' Subsection (a) describes a special account within

the Remining Financial Assurance Fund that may be used to assure bond

obligations of operators who voluntarily complete a reclamation project

under the bond credit program. Subsection (b) describes how the bond

credit will work. Subsection (c) provides that when a permit where a

bond credit is being used is declared forfeit, the reserve funds will

be used by the Department in accordance with the procedures and

criteria in Secs. 86.187-86.190.

25 PA Code 86.292 is titled ``Procedures and Requirements.''

Subsection (a) lists the steps a mining operator must take to apply for

a bond credit. Subsection (b) indicates that if the proposed

reclamation activities have the potential for offsite impacts, the

Department may require as a condition of approving the reclamation

plan, a performance bond in the amount necessary to ensure the operator

completes the reclamation as proposed. Subsection (c) lists the

provisions of an agreement between the operator and the Department that

will be executed on approval of the proposed reclamation plan.

Subsection (d) discusses the conditions under which the bond credit may

be amended or terminated. Subsection (e) describes the enforcement

actions the Department may take against an operator who fails to

complete the reclamation as specified in the agreement.

25 PA Code 86.293, ``Issuance,'' provides that a bond credit letter

will be issued by the Department upon a finding that the operator has

met the terms of the agreement.

25 PA Code 86.294 is titled ``Uses and Limitations.'' Subsection

(a) indicates an operator may apply a bond credit to an original or

existing bond. Subsection (b) indicates an operator may use a bond

credit on a single permit or multiple permits. Subsection (c) indicates

that a

[[Page 12275]]

bond credit may be used in combination with other types of bonds.

Subsection (d) indicates a bond credit may be transferred to a

qualified operator. Subsection (e) provides that a bond credit may not

be used to bond water loss or to bond long-term water treatment.

Subsection (f) indicates procedures an operator must follow if a

discharge not meeting effluent limits develops on a permit where a bond

credit is being used. Subsection (g) indicates bond credits will be

released prior to any surety or collateral bonds. Subsection (h)

indicates a bond credit that is not used within five years from the

date it is issued or released will expire.

25 PA Code 86.295 is titled ``Forfeiture.'' Subsection (a)

indicates that the Department will declare forfeit the amount reserved

in the bond credit special account if forfeiture is declared under

Sec. 86.181. Subsection (b) indicates the Department's declaration of

forfeiture does not excuse the operator from meeting the requirements

of this chapter or the act. Subsection (c) indicates that upon

collection of the bond credit, the Department will use bond money and

reserved funds to complete reclamation of the mine site.

25 PA Code 86.351, ``License Requirement,'' provides that a person

who intends to mine coal as an operator must first obtain a mine

operator's license.

25 PA Code 86.352, ``Mine Operator's License Application,'' lists

the information required by the application for license.

25 PA Code 86.353, ``Identification of Ownership,'' lists the

information that must be included in the application for each person

who owns or controls the applicant.

25 PA Code 86.354, ``Public Liability Insurance,'' requires an

applicant to provide a certificate of liability insurance for the term

of the license.

25 PA Code 86.355 is titled ``Criteria for Approval of

Application.'' Subsection (a) describes the circumstances under which

the Department will not issue, renew or amend the license. Subsection

(b) provides the Department will issue a notice of intention not to

issue, renew or amend a license for the reasons in subsection (a).

Subsection (c) indicates the Department will notify the applicant in

writing of its intention not to issue, renew or amend the license and

the opportunity for informal hearing. Subsection (d) indicates that a

person who opposes the Department's decision on issuance, renewal or

amendment of a license has the burden of proof. Subsection (e)

indicates that for the purposes of this section, ``adjudicated

proceeding,'' means a final unappealed order of the Department or a

final order of the EHB or other court of competent jurisdiction.

25 PA Code 86.356 is titled ``License Renewal Requirements.''

Subsection (a) provides for annual renewal of the license. Subsection

(b) requires the application for renewal to be made at least 60 days

before the current license expires. Subsection (c) provides that the

Department will notify the operator 60 days prior to license expiration

of its intent not to renew a license.

25 PA Code 86.358 is titled ``Suspension and Revocation.''

Subsection (a) lists the reasons the Department may suspend or revoke a

license. Subsection (b) indicates that Department will provide an

informal conference before suspending or revoking a license.

25 PA Code 86.359 is titled ``Fees.'' Subsection (a) lists the fees

needed to secure a license. Subsection (b) provides the circumstances

under which a fee may be refunded.

Chapter 87

Several terms were proposed to be added and one was proposed to be

deleted in section 25 PA Code 87.1, ``Definitions.'' Definitions were

proposed to be added for the terms ``De minimis cost increase,''

``Water supply,'' and ``Water supply survey.'' The definition of ``Dry

weather flow'' was proposed to be deleted from this section.

As stated previously, sections 25 PA Code 87.11-87.21 inclusive

were proposed to be deleted from Chapter 87 and moved into Chapter 86.

The proposed amendment renumbers these sections as 25 PA Code 86.351-

86.359 (inclusive).

The amendment proposes to delete 25 PA Code 87.102, ``Hydrologic

Balance: Effluent Limits,'' and 25 PA Code 87.103, ``Precipitation

Event Exemption.''

The amendment proposes to amend 25 PA Code 87.119, ``Hydrologic

Balance: Water Rights and Replacement.'' Subsection (a) provides that

an operator or person engaged in government financed reclamation who

affected a water supply must restore or replace the water supply. This

subsection also lists the criteria a water supply must meet for it to

be considered adequate. Subsection (b) indicates that a surface mine

operator or owner is responsible for pollution within 1000 feet of the

boundaries of areas bonded and affected by coal mining operations

except for haul roads. Subsection (c) lists defenses to the presumption

of liability defined in subsection (b). Subsection (d) requires that

the mine operator or mine owner notify the Department and provide all

information which supports a defense to the presumption of liability.

Subsection (e) allows the Department to use moneys from the Surface

Mining Conservation and Reclamation Fund to restore or replace water

supplies if the Department finds that immediate replacement of the

supply used for potable or domestic purposes is required to protect

public health or safety and the mine owner or operator has failed to

comply with Departmental orders. Subsection (f) states the Department

will recover costs of restoration or replacement from a surface mine

operator or mine owner. Subsection (g) provides that a surface mine

operator or mine owner who successfully appeals a Department order is

entitled to recovery of reasonable costs. Subsection (h) permits a

landowner, water supply user or water supply company to pursue other

remedies that may be available in law or in equity. Subsection (i)

provides that a Department order issued under this section which is

appealed will not be used to block issuance of new permits or the

release of bonds when a stage of reclamation work is completed.

Subsection (j) provides that nothing in this section limits the

Departments authority under section 4.2(f)(1) of SMCRA. Subsection (k)

provides that a surface mining operation conducted under a surface

mining permit issued by the Department before February 16, 1993, is not

subject to subsections (b)-(i), but is subject to subsections (a) and

(j).

25 PA Code 87.147 is titled ``Revegetation: General Requirements.''

Subsection (b)(1) was added. This subsection provides for a lesser

revegetation success standard for areas proposed to be reaffected when

these areas were previously disturbed by surface mining activities and

were not reclaimed to the standards of SMCRA.

Chapter 88

Three new definitions are proposed to be added to Chapter 88 and

one is proposed to be deleted. The terms proposed for addition to 25 PA

Code 88.1 are, ``De minimis Cost Increase,'' ``Water Supply,'' and

``Water Supply Survey.'' The term ``Dry Weather Flow'' is proposed to

be deleted from 25 PA Code 88.1.

The amendment proposes to delete 25 PA Code 88.92, ``Hydrologic

Balance: Effluent Limits,'' and 25 PA Code 88.93, ``Precipitation Event

Exemption.''

The amendment proposes to amend 25 PA Code 88.107, ``Hydrologic

[[Page 12276]]

Balance: Water Rights and Replacement.'' The proposed amendment

language is identical to that proposed for 25 PA Code 87.119 summarized

above.

25 PA Code 88.121 is titled, ``Revegetation: General Requirement.''

Subsection (b) is proposed to be amended to provide for a lesser

revegetation success standard for areas proposed to be reaffected when

these areas were previously disturbed by surface mining activities and

were not reclaimed to the standards of SMCRA.

The amendment proposes to delete 25 PA Code 88.187, ``Hydrologic

Balance: Effluent Limits,'' and 25 PA Code 88.188, ``Precipitation

Event Exemption.''

25 PA code 88.209 ``Revegetation: General Requirement'' subsection

(b) is proposed to be amended to provide for a lesser revegetation

success standard for areas proposed to be reaffected when these areas

were previously disturbed by surface mining activities and were not

reclaimed to the standards of SMCRA.

The amendment proposes to delete 25 PA Code 88.292,``Hydrologic

Balance: Effluent Limits,'' and 25 PA Code 88.293, ``Precipitation

Event Exemption.''

Chapter 89

One definition, ``Dry Weather Flow,'' is proposed to be deleted

from 25 PA Code 89.5.

The amendment proposes to delete 25 PA Code 89.52, ``Water Quality

Standards, Effluent Limitations and Best Management Practices,'' and 25

PA Code 89.53, ``Precipitation Event Exemption.''

Chapter 90

One definition, ``Dry Weather Flow,'' is proposed to be deleted

from 25 PA Code 90.1.

The amendment proposes to delete 25 PA Code 90.102, ``Hydrologic

Balance: Water Quality Standards, Effluent Limitations and Best

Management Practices,'' and 25 PA Code 90.103, ``Precipitation Event

Exemption.''

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 884.15, OSM is now

seeking comment on whether the amendment proposed by Pennsylvania

satisfies the applicable requirements for the approval of State program

amendments. If the amendment is deemed adequate, it will become part of

the Pennsylvania program.

Written Comments

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Harrisburg Field Office will

not necessarily be considered in the final rulemaking or included in

the Administration Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by close of

business on March 29, 1999. If no one requests an opportunity to

comment at a public hearing, the hearing will not be held.

If a public hearing is held, it will continue on the specified date

until all persons scheduled to comment have been heard. Persons in the

audience who have not been scheduled to comment and who wish to do so

will be heard following those scheduled. The hearing will end after all

persons who desire to comment have been heard. Filing of a written

statement at the time of the hearing is requested as it will greatly

assist the transcriber.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the Harrisburg Field Office by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings will be open to the public and, if possible, notices of

the meetings will be posted in advance at the locations listed above

under ADDRESSES. A summary of meetings will be included in the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) under Executive Order 12866 (Regulatory

Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

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

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

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

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

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constituent major Federal actions within the meaning of section

102(c)(C) of the National Environmental Policy Act (42 U.S.C.

4332(c)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.)

Regulatory Flexibility Act

The Department of the Interior has determines that this rule will

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

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

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501

et seq.), this rule will not produce a Federal mandate of $100 million

or greater in any year, i.e., it is not a

[[Page 12277]]

``significant regulatory action'' under the Unfunded Mandates Reform

Act.

List of Subjects in 30 CFR Part 938

Intergovernment relations, Surface mining, Underground mining.

Dated: March 5, 1999.

Allen D. Klein,

Appalachian Regional Coordinating Center.

[FR Doc. 99-6109 Filed 3-11-99; 8:45 am]

BILLING CODE 4310-05-M