Pennsylvania Abandoned Mine Land Reclamation Program; Pennsylvania Regulatory 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;

Pennsylvania Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed

amendment to the Pennsylvania Abandoned Mine Land Reclamation (AMLR)

Plan (hereinafter referred to as the AMLR Plan) under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et

seq., as amended. The proposed amendment adds a new section ``F''

entitled Government Financed Construction Contracts (GFCC) to authorize

the incidental removal of coal and coal refuse at Abandoned Mine Land

(AML) sites that would not otherwise be mined and reclaimed under the

Title V program, along with relevant statutory provisions authorizing

the AMLR Plan amendments. The proposed amendment also includes the

Program Requirements and Monitoring Requirements related to the use of

GFCC for that purpose. The proposed amendment is intended to improve

the efficiency of the Pennsylvania program by allowing the government-

financed construction exemption in Section 528 of SMCRA to be applied

in cases involving less than 50% financing only in the limited

situation where the construction constitutes a government approved and

administered abandoned mine land reclamation project under Title IV of

SMCRA. The amendment is also intended to authorize the use of excess

spoil from a valid, permitted coal mining operation for the reclamation

of an abandoned unreclaimed area outside of the permit area.

EFFECTIVE DATE: March 26, 1999.

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

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

Transportation Center (Amtrack) 415 Market Street, Harrisburg,

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

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Pennsylvania Program

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

approved the Pennsylvania AMLR Plan. Background on the Pennsylvania

AMLR Plan, including the Secretary's findings and the disposition of

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

33081). Subsequent actions concerning the AMLR Plan amendments are

identified at 30 CFR 938.20 and 938.25.

On July 31, 1982, the Secretary of the Interior conditionally

approved the Pennsylvania program. Background information on the

Pennsylvania program can be found in the July 30, 1982 Federal Register

(47 FR 33050). Subsequent actions concerning the conditions of approval

and program amendments are identified at 30 CFR 938.11, 938.12, 938.15

and 938.16.

II. Description of the Proposed Amendment

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

855.00), the Pennsylvania Department of Environmental Protection

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

AMLR Plan. In addition, PADEP also submitted the following documents:

Introduction; Basis of Authority for the Proposed Amendment; AML

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

Opinion of Authority for GFCC; PADEP Organization Chart; the Office of

Mineral Resources Management Organization Chart; and Public

Participation in Part F of the Reclamation Plan (Amendment No. 2). The

proposed amendment is intended to improve the efficiency of the

Pennsylvania program by allowing the Government-financed construction

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

involving less than 50% government financing. Pennsylvania also

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

coal mining operation for the reclamation of an abandoned unreclaimed

area outside of the permit area.

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

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

the public comment period and provided an opportunity for a public

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

period closed on January 28, 1998.

OSM's review of the proposed amendment determined that several

items required clarification. As a result, a letter requesting

clarification on three items pertaining to placement of excess spoil on

Abandoned Mine Lands was sent to Pennsylvania dated June 5, 1998

(Administrative Record No. PA 855.08). Pennsylvania initially responded

in its letter dated June 17, 1998, (Administrative Record No. PA

855.09), that it would require additional time to respond to OSM's

request, and that it expected to provide a response by July 15. A

response was received from Pennsylvania in its letter dated July 7,

[[Page 14611]]

1998 (Administrative Record No. PA-855.10). Therefore, OSM announced a

reopening of the public comment period until August 12, 1998, in the

July 28, 1998, Federal Register (63 FR 40237). No comments were

received. However, OSM subsequently informed Pennsylvania that its

program appeared to lack the statutory authority to implement the

exemption for incidental coal removal pursuant to government-financed

reclamation projects. Therefore, in letters, in letters dated October 8

and October 13, 1998 (Administrative Record No. PA 855.12),

Pennsylvania subsequently submitted portions of its state law which it

believes provides specific authorization to implement the proposed

changes to AMLR Plan. Pennsylvania requested to have the statutory

provisions included as part of Pennsylvania's Abandoned Mine

Reclamation Plan Amendment. The proposed additions were published in

the November 3, 1998, Federal Register (63 FR 59259), and the comment

period was reopened to November 18, 1998. No comments were received.

Since that time, national regulations known as the AML Enhancement Rule

were published in the February 12, 1999, Federal Register (64 FR 7470)

as a final rule to be effective March 15, 1999. OSM found that

Pennsylvania's amendment did not include certain aspects of the AML

Enhancement Rule. Therefore, in a letter to OSM dated March 2, 1999

(Administrative Record No. PA 855.15), Pennsylvania specified the

additional requirements it proposed to be included in its amendment.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15, 732.17, 884.14 and 884.15, are the Director's findings

concerning the proposed amendment.

Revisions not specifically discussed below concern nonsubstantive

wording changes and paragraph notations to reflect organizational

changes resulting from this amendment. The proposed amendment consists

of new Part F, Program Requirements, and a Monitoring Program for

GFCC's, both to be added to the AMLR Plan. The proposed amendment also

consists of amendments to the Pennsylvania state code, at 52 P.S.

1396.3 and 1396.4h.

AMLR Plan, Part F: Government Financed Construction Contracts

(1) Incidental Coal Removal--PADEP proposes to authorize the

incidental removal of coal at AML sites that would not otherwise be

mined and reclaimed under the Title V program. Through its management

of the permitting process and knowledge of the status of the AML lands

in Pennsylvania, PADEP plans to enter into agreements with mining

companies and adjacent permit holders to direct the reclamation of AML

lands which involve some incidental removal of coal. Following are (3)

examples of situations where PADEP proposes to utilize the GFCC to

address AML liabilities.

(a) Refuse Pile Reclamation--As a result of an extensive history of

mining in Pennsylvania, thousands of coal refuse piles are scattered

throughout the state in both the bituminous and anthracite fields. In

many cases these piles are unsightly, unsafe and are adding to the

sedimentation and mine drainage pollution of Pennsylvania streams in

areas that are economically deprived because of poor water quality and

general aesthetics.

Depending on the method used to clean the coal and the volume of

material available, these piles have varying degrees of value. Those

piles that are larger in volume and higher in quality have

traditionally been permitted under the Title V Program while piles of

smaller, poorer quality have remained virtually untouched and are not

and will not be likely candidates for permitting. These are the types

of piles that are generally suitable for use in fluidized-bed

combustion processes employed at congeneration plants and the types of

piles that will be reclaimed under the proposed program.

(b) Reclamation of Abandoned Deep Mines--An example specific to

this initiative would be represented by an abandoned deep mine that

includes subsidence problems and acid mine drainage discharges. The

reclamation of this type of site would involve the daylighting of the

deep mined area, the incidental and necessary removal of any coal

encountered, the placement of alkaline material over the area of deep

mine affected, and the construction of some type of passive treatment

system to insure the reduction of pollutional loading from the

discharges. Daylighting is the method of removing coal from a deep mine

by first removing the overburden. Because of the limited amount of coal

available, and the potential water quality liability for the

discharges, this sample site would not be a candidate for a surface

mine permit under the Title V Program.

(c) Unreclaimed High Walls Adjacent to Active Mine Sites--Nearly

all permits issued under the Title V program include varying levels of

remining or are located within close proximity to previously affected

areas located outside of permit boundaries. In some cases coal along

the crop barrier may have gone unmined because of poor quality or high

moisture content. In other cases an additional cut taken off the

highwall may facilitate a reclamation plan that results in a more

suitable post-mining land use or may facilitate an abatement project

(alkaline addition--highwall drains, etc.) that will result in improved

water quality. In those situations where a Title V permit is

impractical due to limited coal recovery or poor coal quality, PADEP

proposes to direct reclamation of these sites through a GFCC which

allows for the incidental removal of coal to complete reclamation of

the AML lands.

(2) Placement of Excess Spoil on Adjacent AML Lands--PADEP proposes

to authorize the placement of excess spoil from active mining

operations on AML sites that would not otherwise be mined and reclaimed

under the Title V program. Through its management of the permitting

process and the knowledge of the status of AML lands in Pennsylvania,

PADEP plans to enter into agreements with mining companies and adjacent

permit holders to direct the reclamation of AML lands adjacent to

permitted operations. The institution of this program will allow PADEP

to maximize its reclamation efforts on AML lands at no expense to the

funding sources for PADEP's AML program. Savings to the AML program

would be used for reclamation at other sites throughout the

Commonwealth.

Pennsylvania was asked to clarify which requirements in the

approved program will apply to the placement of excess spoil on

abandoned mine lands as referenced in the proposed amendment at page 7

where it is stated that the placement of excess spoil on adjacent AML

lands would be approved AML reclamation projects and would therefore

encompass the same time-tested administrative, financial, contractual

and environmental safeguards as any other approved AML projects in the

Commonwealth. OSM requested Pennsylvania either require that these

projects be handled in the same manner as Federally-funded AML

projects, or otherwise identify the administrative, financial,

contractual and environmental safeguards that will be applied to these

``no-cost'' GFCC's, and show how these safeguards will ensure the same

level of environmental protection as that provided by Federally-funded

AML projects. Pennsylvania responded that these projects will be

handled in the same manner as Federally-funded AML projects.

Furthermore, projects that involve the support and involvement of the

District Mining Offices will be

[[Page 14612]]

subject to the additional administrative requirements designed to

address the coordination between the Bureau of Abandoned Mine

Reclamation and the District Mining Offices. Pennsylvania revised page

7 of its proposed amendment to include these clarifications.

(Administrative Record No. PA-855.10).

Pennlsyvania was asked to include in its AMLR Plan provisions to

ensure that excess spoil from Title V operations will not be placed on

approved AML sites in amounts greater than necessary to address the AML

impacts and problems. Pennsylvania responded that it modified its

amendment by adding the following sentence to the end of the first

paragraph on page 6, C.1; after the fourth sentence of the first full

paragraph on page 7; after the first sentence of the last paragraph on

page 9; after the first sentence of Part F(2) on page 13; and after the

first sentence of third paragraph under Program Requirements on page

15: ``The amount of excess spoil from title V operations will not

exceed that amount necessary to address the AML impacts and problems.''

(Administrative Record No. PA-855.10).

AMLR Plan, Part F: Program Requirements

A. The Department will solicit and accept proposals to enter into a

GFCC for the purpose of reclamation of abandoned mine lands, some of

which may involve the incidental and necessary removal of coal.

To be an ``eligible person'', for purposes of entering into a GFCC,

the person must clear the Department's standard compliance with the

Applicant Violator System (AVS) checks. In addition, the person must

clear a check through the Commonwealth's contractor responsibility

program. (See summary of 52 P.S. 1396.4h, under the heading ``STATUTORY

PROVISIONS'', below.)

A GFCC under the terms of this amendment, is limited to those

situations where a contractor proposes to enter into an agreement to

perform reclamation on abandoned mine lands with the incidental and

necessary removal of coal or to use excess spoil from a permitted site

to reclaim an abandoned mine land. Reclamation should also include,

where feasible, the installation of passive treatment systems and/or

other measures to mitigate pre-existing discharges. No processing of

coal will be conducted on-site.

Coal refuse ash may be returned to the site consistent with a

general permit issued by the PADEP. General permits are issued by

Pennsylvania's Bureau of Water Quality Protection as authorized by its

Solid Waste Management Act (35 P.S. Secs. 6018.101 et seq) and 25 Pa

Code Chapters 77, 86-90 and 271.

Sewage sludge may be utilized for site reclamation consistent with

a beneficial use order or land reclamation permit. Beneficial use and

land reclamation permit are also authorized by Pennsylvania's Solid

Waste Management Act.

PADEP will conduct an expeditious review of the proposal for

adequacy of the monitoring plan, erosion and sedimentation control

plan, operation plan, and reclamation plan. Particular attention will

be given to the feasibility of installing passive treatment systems

and/or other measures to mitigate pre-existing discharges. Any

deficiencies are to be communicated to the contractor in writing.

Even though reclamation activities under a GFCC are not subject to

the barrier prohibitions of 25 Pa. Code 86.102, precautions will be

designed in the operation and reclamation plans to minimize any

potential adverse impacts on areas that would be considered prohibited

areas under a coal mining permit.

A performance bond in an amount determined by the PADEP shall be

submitted on forms provided by the PADEP for all GFCC sites where bond

is required. Specifically, a performance bond will be required on

GFCC's which involve coal removal which is incidental to reclamation.

PADEP stated that it has developed a bond rate schedule to be used to

establish the bond amount for each GFCC. The bond rate schedule is

based on acreage involved and PADEP's experience in reclaiming

abandoned mine lands. The authority for requiring a bond is contained

in the statutes cited in the legal opinion attached to the proposed

program amendment initially submitted. (Administrative Record No. PA-

855.00, Exhibit 2B), PADEP revised pages 15 and 16 of its proposed

amendment to include these clarifications. Should a contractor default

on a GFCC or otherwise fail to perform the required reclamation, PADEP

will make a demand upon the surety to fulfill its performance bond

obligations to either complete the reclamation required by the GFCC or

to pay that amount of bond money necessary for PADEP to hire another

contractor to complete the remaining contract reclamation work.

A consent order and agreement, in conjunction with a permit

condition, will be used to ensure that AML sites which receive excess

spoil from a Title V site are fully reclaimed in accordance with the

contract standards and/or the consent order. The permit condition will

provide that the operator will use no more than that amount of excess

spoil which is necessary to reclaim the AML site and that the

operator's failure to complete the required reclamation of the AML site

prohibits release of the bond on the Title V permit. An operator's

failure to complete reclamation of the AML site would also be a

violation of its permit, exposing the operator to civil penalties and/

or bond forfeiture and enforcement of the consent order and agreement.

B. A proposal for a GFCC will consist of a face sheet and the

following Pennsylvania Surface Mine Permitting modules as applicable:

Module #1--Ownership and Right of Entry

Module #2--Environmental Resource and Operations Map

Module #3--Hydrology

Module #4--Operational Information

Module #5--Streams

Module #25--Flyash

Module #27--Sewage Sludge

(a) The ownership and control information is to be entered into the

Land Use Management Information System (LUMIS) and a compliance check/

AVS check run. If a ``bar'' is found, the proposal is to be returned.

If ``no bar'' is found, the proposal will be accepted and given an ID

number.

(b) All proposals will be subject to the consultation requirements

with other state agencies as prescribed by Pennsylvania's approved AMLR

Plan.

(c) The PADEP will advertise receipt of the proposal. This notice

shall be run once a week for two weeks in a newspaper local to the

project area.

(d) The municipality and the county in which the site is located

will be notified, by certified letter, that the PADEP received a

proposal for a GFCC to perform reclamation activities within the

municipality.

(e) Upon final execution of the contract, PADEP will notify the

host municipality and county by certified mail of the action; notify

any agencies who submitted comments; notify appropriate state

Legislators, in writing, of the action; and issue a press release of

the action (The Regional Community Relations Coordinator will assist in

preparation of this release). If a Small Projects Permit is issued with

the executed contract, notice must be made in the Pennsylvania

Bulletin.

AMLR Plan, Part F: Monitoring Program for GFCC's

The PADEP will conduct monthly inspections of all GFCC's until the

site is determined to be stabilized by vegetation. At that time, the

PADEP will

[[Page 14613]]

continue to conduct regular inspections on a quarterly basis until the

contract receives final approval and final bond release.

The inspection forms and related instructions to be utilized to

monitor the GFCC program are part of the amendment.

According to the PADEP, the proposed program amendment would offer

solutions to the following problems that exist throughout

Pennsylvania's coal field:

(1) Conditions which create a risk of fire, landslide, subsidence,

cave-in or other unsafe, dangerous or hazardous conditions, including

but not limited to any unguarded or unfenced open pit area, highwall,

water pool, spoil bank and culm bank, abandoned structure, equipment,

machinery, tools, or other property used in or resulting from surface

mining operations. or other serious hazards to public health or safety.

(2) AMD pollution and sedimentation into Pennsylvania's streams.

(3) Unsightly, and unproductive property that has been largely

unreclaimed through either the AML or active mining programs.

(4) Inadequate funding to address the above three Pennsylvania

reclamation liabilities.

Generally speaking, the above conditions exist in areas that are

economically depressed and environmentally damaged. The necessary

reclamation represents an AML liability well in excess of hundreds of

millions of dollars. The proposed program offers an additional solution

to Pennsylvania's obligation to provide clean water and a safe and

healthy environment to its citizens.

Statutory Provisions

At 52 P.S. 1396.3, Pennsylvania proposes to modify its definition

of the term ``surface mining activities'', to add four exceptions. The

effect of the modification will be that the excepted activities'' will

not be required to apply for and receive surface coal mining permits,

and will not be required to comply with the full panoply of performance

standards contained in the Pennsylvania surface coal mining regulatory

program. Currently, Pennsylvania's definition of ``surface mining

activities'' is as follows:

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

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

removing the strata or material which overlies or is above or between

them or otherwise exposing and retrieving them from the surface,

including, but not limited to, strip, auger mining, dredging, quarrying

and leaching, and all surface activity connected with surface or

underground mining, including, but not limited to, exploration, site

preparation, entry, tunnel, drift, slope, shaft and borehole drilling

and construction and activities related thereto, but not including

those portions of mining operations carried out beneath the surface by

means of shafts, tunnels or other underground mine openings. The

proposed amendment, which includes four exceptions to the definition of

``surface mining activities'' states that:

``Surface mining activities'' shall not include any of the

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

government-financed reclamation contract for the purposes of section

4.8 [52 P.S. 1396.4h]. (2) Extraction of coal as an incidental part of

Federal, State or local government-financed highway construction

pursuant to regulations promulgated by the Environmental Quality Board.

(3) The reclamation of abandoned mine lands not involving extraction of

coal or excess spoil disposal under a written agreement with the

property owner and approved by the department. (4) Activities not

considered to be surface mining as determined by the United States

Office of Surface Mining, Reclamation and Enforcement and set forth in

department regulations. The Director finds that exception number two,

the extraction of coal as an incidental part of Federal, State or local

government-financed highway construction pursuant to regulations

promulgated by the Environmental Quality Board, is substantively

identical to, and therefore no less stringent than, SMCRA Section

528(2), and she is therefore approving it. Prior to implementation of

this exception, however, Pennsylvania must submit to OSM and receive

OSM approval of the implementing regulations promulgated by the

Environmental Quality Board. The Director finds that exception number

three, the reclamation of abandoned mine lands not involving extraction

of coal or excess spoil disposal under a written agreement with the

property owner and approved by the department, is not inconsistent with

the Federal definition of ``surface coal mining operations'' at SMCRA

Section 701(28), and she is therefore approving it. The Director finds

that exception number four, activities not considered to be surface

mining as determined by the United States Office of Surface Mining,

Reclamation and Enforcement and set forth in department regulations, is

not inconsistent with SMCRA or the Federal regulations, and she is

therefore approving it. Prior to implementing this exception, however,

Pennsylvania must submit to and receive from OSM approval of any

implementing regulations it promulgates. Exception number one,

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

financed reclamation contract for the purposes of section 4.8 [52 P.S.

1396.4h], is discussed below in the section of this finding entitled

``Analysis of Proposal to Allow Incidental Coal Removal Pursuant to

GFCC's.''

Also at 52 P.S. Sec. 1396.3, Pennsylvania proposes to define the

term ``government-financed reclamation contract'', as follows:

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

(1) For the purposes of Section 4.8 [52 P.S. 1396.4h], a Federally-

funded or state-funded and approved abandoned mine reclamation contract

entered into between the department and an eligible person or entity

who has obtained special authorization to engage in incidental and

necessary extraction of coal refuse pursuant to government-financed

reclamation which is either:

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

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

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

contract where less than five hundred (500) tons is removed and the

government's cost of financing reclamation will be assumed by the

contractor under the terms of a no-cost contract;

(ii) a State-financed reclamation contract authorizing the removal

of coal refuse, including where reclamation is performed by the

contractor under the terms of a no-cost contract with the department,

not involving any reprocessing of coal refuse on the project area or

return of any coal refuse material to the project area;

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

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

abandoned mine reclamation project: Provided, That the department

determines in writing that extraction of coal is essential to

physically accomplish the reclamation of the project area and is

incidental and necessary to reclamation, or

(iv) federally financed or state-financed extraction of coal which

the department determines in writing to be essential to physically

extinguish an abandoned mine fire that poses a threat to the public

health, safety and welfare.

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

is

[[Page 14614]]

incidental and necessary under section 4.8, the department shall

consider standard engineering factors and shall not in any case

consider the economic benefit deriving from extraction of coal.

Necessary extraction of coal shall in no case include:

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

affected area which will be reclaimed; or

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

which will be reclaimed. This definition is discussed below in the

section of this finding entitled ``Analysis of Proposal to Allow

Incidental Coal Removal Pursuant to GFCC's.''

Also at 52 P.S. 1396.3, Pennsylvania proposes to define the term

``no-cost reclamation contract,'' as follows:

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

between the department and an eligible person for the purpose of

reclaiming unreclaimed abandoned mine lands and which does not involve

the expenditure of Commonwealth funds. This definition is discussed

below in the section of this finding entitled ``Analysis of Proposal to

Allow Incidental Coal Removal Pursuant to GFCC's.''

Finally, at 52 P.S. 1396.4h [also referred to as ``section 4.8''],

Pennsylvania proposes to add a new section entitled ``Government-

financed reclamation contracts authorizing incidental and necessary

extraction of coal or authorizing removal of coal refuse'' which states

that:

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

coal refuse pursuant to a government-financed reclamation contract

without a valid surface mining permit issued pursuant to this act

unless such person affirmatively demonstrates that he is eligible to

secure special authorization pursuant to this section to engage in a

government-financed reclamation contract authorizing incidental and

necessary extraction of coal or authorizing removal of coal refuse. The

department shall determine eligibility before entering into a

government-financed reclamation contract authorizing incidental and

necessary extraction of coal or authorizing removal of coal refuse. The

department may provide the special authorization as part of the

government-financed reclamation contract: Provided, That the contract

contains and does not violate the requirements of this section. The

department shall not be required to grant a special authorization to

any eligible person. The department may, however, in its discretion,

grant a special authorization allowing incidental and necessary

extraction of coal or allowing removal of coal refuse pursuant to a

government-financed reclamation contract in accordance with this

section.

(b) Only eligible persons may secure special authorization to

engage in incidental and necessary extraction of coal or to engage in

removal of coal refuse pursuant to a government-financed reclamation

contract. A person is eligible to secure a special authorization if he

can demonstrate, at a minimum, to the department's satisfaction that:

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

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

which show the contractor's lack of ability or intention to comply with

the acts or the rules and regulations promulgated thereunder, whether

or not such violation relates to any adjudicated proceeding agreement,

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

penalty assessment. For the purposes of this section, the term

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

corporation, affiliate or person by or under common control with the

contractor.

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

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

subcontractor which will act under its direction of any of the acts,

rules, regulations, permits or licenses of the department has been

corrected or is in the process of being corrected to the satisfaction

of the department, whether or not the violation relates to any

adjudicated proceeding, agreement, consent order or decree or which

resulted in a cease order or civil penalty assessment. For purposes of

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

associate, officer, parent corporation, subsidiary corporation,

affiliate or person by or under common control with the contractor.

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

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

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

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

pollution has been corrected or is in the process of being

satisfactorily corrected.

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

under the direction of the contractor has no outstanding unpaid civil

penalties which have been assessed for violations of either this act or

the act of June 22, 1937 (Pub. L. 1987, No. 394), known as ``The Clean

Streams Law'' (35 P.S. Sec. 691.1 et seq.), in connection with either

surface mining or reclamation activities.

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

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

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

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

department.

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

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

reclamation contract may request and secure special authorization from

the department to conduct such activities under this section. The

department may issue the special authorization as part of the

government-financed reclamation contract: Provided, That the contract

contains and does not violate the requirements of this section. A

special authorization can only be obtained if a clause is inserted in a

government-financed reclamation contract authorizing such extraction of

coal or authorizing removal of coal refuse and the person requesting

such authorization has affirmatively demonstrated to the department's

satisfaction that he has satisfied the provision of this section. A

special authorization shall only be granted by the department prior to

the commencement of extraction of coal or commencement of removal of

coal refuse on a project area. In order to be considered for a special

authorization by the department, an eligible person must demonstrate at

a minimum that:

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

reclamation of abandoned mine lands.

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

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

of abandoned mine lands pursuant to a government-financed reclamation

contract.

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

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

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

reclamation activity undertaken pursuant to a government-financed

reclamation project will be accomplished pursuant to:

(i) The applicable environmental protection performance standards

promulgated in the rules and regulations relating to surface coal

mining listed in the government-financed reclamation contract; and

[[Page 14615]]

(ii) Additional conditions included in the government-financed

reclamation contract by the department.

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

established by OSM for each ton of coal extracted pursuant to a

government-financed reclamation project.

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

removal of coal refuse pursuant to a government-financed reclamation

project, the contractor shall file with the department a performance

bond payable to the Commonwealth and conditioned upon the contractor's

performance of all the requirements of the government-financed

reclamation contract, this act, ``The Clean Streams Law'', the act of

January 8, 1960 (1959 P.L. 2119, No. 787) (35 P.S. section 4001 et

seq.), known as the ``Air Pollution Control Act'', the act of September

24, 1968 (P.L. 1040, No. 318) (52 P.S. Sec. 30.51 et seq.), known as

the ``Coal Refuse Disposal Control Act,'' where applicable, the act of

November 26, 1978 (P.L. 1375, No. 325) (32 P.S. Sec. 693.1 et seq.),

known as the ``Dam Safety and Encroachments Act'', and, where

applicable, the act of July 7, 1980 (P.L. 380, No. 97) (35 P.S.

Sec. 6018.101 et seq.), known as the ``Solid Waste Management Act''. An

operator posting a bond sufficient to comply with this section shall

not be required to post a separate bond for the permitted area under

each of the acts herein above enumerated. For government-financed

reclamation contracts other than a no-cost reclamation contract, the

criteria for establishing the amount of the performance bond shall be

the engineering estimate, determined by the department, of meeting the

environmental obligations enumerated above. The performance bond which

is provided by the contractor under a contract other than a government-

financed reclamation contract shall be deemed to satisfy the

requirements of this section provided that the amount of the bond is

equivalent to or greater than the amount determined by the criteria set

forth in this subsection. For no-cost reclamation projects in which the

reclamation schedule is shorter than two (2) years the bond amount

shall be a per acre fee, which is equal to the department's average per

acre cost to reclaim abandoned mine lands; provided, however, for coal

refuse removal operations, the bond amount shall only apply to each

acre affected by the coal refuse removal operations. For long-term, no-

cost reclamation projects in which the reclamation schedule extends

beyond two (2) years, the department may establish a lesser bond

amount. In these contracts, the department may in the alternative

establish a bond amount which reflects the cost of the proportionate

amount of reclamation which will occur during a period specified.

(f) The department shall insert in government-financed reclamation

contracts conditions which prohibit coal extraction pursuant to

government-financed reclamation in areas subject to the restrictions of

Section 4.2 (52 P.S. Sec. 1396.4b.), except as surface coal mining is

allowed pursuant to that section.

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

government-financed reclamation contract authorized under this section

who affects a public or private water supply by contamination or

diminution shall restore or replace the affected supply with an

alternate supply adequate in quantity and quality for the purposes

served.

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

government-financed reclamation contract cannot be initiated without

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

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

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

in the exercise of police powers.

This new section is discussed below in the section of this finding

entitled ``Analysis of Proposal to Allow Incidental Coal Removal

Pursuant to GFCC's.''

Analysis of Proposal To Allow Incidental Coal Removal Pursuant to

GFCC's

Section 528(2) of SMCRA provides an exemption from the requirements

of SMCRA for coal extraction incidental to government-financed highway

or other construction under regulations established by the regulatory

authority. The amendments to Pennsylvania's statutes and to its AMLR

Plan would allow incidental coal extraction pursuant to the reclamation

of abandoned sites without the need of a surface coal mining permit.

The State contends that this amendment is consistent with the

provisions of section 528(2) of SMCRA and, therefore, not subject to

SMCRA.

The Federal regulations at 30 CFR Part 707 set forth the procedures

for determining those surface coal mining and reclamation operations

which are exempt from the Act and the Federal regulations because the

extraction of coal is an incidental part of Federal, State, or local

government-financed highway or other construction. Under 30 CFR 707.5,

government-financed construction, generally, means construction funded

50 percent or more by funds appropriated from a government financing

agency's budget or obtained from general revenue bonds. However, OSM

has recently promulgated a revision to the definition of ``government

financed construction'' at 30 CFR 707.5. The new revision allows

incidental coal extraction to be performed pursuant to approved

reclamation projects under Title IV of SMCRA, even where the government

funding portion is less than 50%. 64 FR 7470, February 12, 1999.

Therefore, Pennsylvania's proposed statutory and AMLR Plan amendments

are no less than the newly promulgated revision to the Federal

definition of ``government financed construction'', insofar as the

State provisions apply to approved Title IV projects. The Director also

finds that the AMLR plan amendment is no less effective than the

federal regulations at 30 CFR 707.12, pertaining to the information

required to be maintained on site, with respect to approved Title IV

projects. However, other new Federal provisions were enacted in the

same rulemaking. These new provisions, at 30 CFR 874.17, contain

consultation responsibilities and concurrence obligations, as well as

documentation requirements, for the Title IV and Title V divisions of

State Regulatory Authorities as a prerequisite to approval of

incidental coal extraction without a permit, on approved Title IV

reclamation projects which are less than 50% government financed.

Pennsylvania's proposed amendment already contained counterparts to the

requirements contained in 30 CFR 874.17(b), (d)(3) and (d)(4). Also,

since our approval of the incidental extraction of coal on projects

which are less than 50% government financed is limited to approved AML

projects under Title IV, the projects will necessarily be conducted in

accordance with 30 CFR Subchapter R, thereby fulfilling the requirement

at 30 CFR 874.17(d)(2). Finally, in a letter dated March 2, 1999

(Administrative Record No. PA-855.15), Pennsylvania proposed to amend

its AML Plan to require that any Title IV reclamation projects to

require compliance with the remaining portions of 30 CFR 874.17.

Therefore, the Director finds that the amendment submitted by

Pennsylvania, including the March 2, 1999, modification, complies with

30 CFR 874.17, to the extent that it applies to the incidental

extraction of coal on approved Title IV projects which are less than

50% government financed.

[[Page 14616]]

A discussion of the support statutory revisions follows.

At 52 P.S. 1396.3, Pennsylvania proposes an exception from the

definition of ``surface mining activities'' for the extraction of coal

or coal refuse removal pursuant to a government-financed reclamation

contract. Also at 52 P.S. 1396.3, Pennsylvania proposes a definition of

``government-financed reclamation contract.'' (This definition is

summarized above.) To the extent that these provisions apply to the

incidental extraction of coal pursuant to approved AML projects, they

are no less stringent than Section 528(2) of SMCRA, for the reasons

discussed in the preceding paragraphs under this heading. These

projects may be less than 50% government financed, and may be approved

by Pennsylvania at any time after the effective date of this final

rule. Our approval includes state financed reclamation projects, which

receive no federal AML funding, so long as those projects are approved

under title IV and the federal regulations at 30 CFR Subchapter R. In

other words, the State need not actually use federal AML moneys to fund

these projects, but the projects must first comply with the criteria in

SMCRA and the federal regulations which govern eligibility for federal

funding. Projects that are State financed, but that do not receive

Title IV approval, qualify for the government financed construction

exemption only if they are at least 50% government financed. Therefore,

the director is not approving the definition of ``government-financed

reclamation contract'' to the extent that it proposes to allow

incidental coal removal, pursuant to state financed reclamation

contracts which are less than 50 percent government financed, on sites

which have not been approved as Title IV AML projects.

In addition, the Director is not approving the portions of the

definition of ``government-financed reclamation contract'' which refer

to ``no-cost contracts.'' (See the proposed definition of ``no-cost

reclamation contract'', which is set forth in its entirety, above.) In

order to qualify as ``government-financed construction'', projects must

receive some funding through appropriations from the government

financing agency's budget. Any expenses incurred directly or indirectly

by the AML agency, including the costs of project design, solicitation,

management and oversight, qualify as government financing. However,

Pennsylvania defines no-cost contracts as those contracts that do not

involve the expenditure of any government funding, either as direct

payments or as indirect expenses such as those listed above. Therefore,

Pennsylvania's definition of ``government financed reclamation

contract'' is less effective than the Federal definition of

``government-financed construction'', at 30 CFR 707.5, to the extent

that it would allow incidental coal extraction or coal refuse removal,

without a permit, pursuant to no-cost contracts. Specifically, the

Director is not approving the following language in the definition of

``government-financed reclamation contract'':

In paragraph (1)(i), the phrase ``including a reclamation contract

where less than five hundred (500) tons is removed and the government's

cost of financing reclamation will be assumed by the contractor under

the terms of a no-cost contract''; and,

In paragraph (1)(ii), the phrase ``including where reclamation is

performed by the contractor under the terms of a no-cost contract with

the department, not involving any reprocessing of coal refuse on the

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

area.''

In addition, the Director is not approving the definition of ``no-

cost reclamation contract'', at 52 P.S. 1396.3.

Finally, the Director is requiring Pennsylvania to amend 52 P.S.

1396.3 to delete the above-referenced language.

At 52 P.S. 1396.4h, also known as ``Section 4.8'', which is set

forth in its entirety above, Pennsylvania has established criteria for

determining eligibility for receipt of a special authorization to

conduct incidental coal extraction or coal refuse removal pursuant to a

government-financed reclamation contract. This provision also requires

eligible persons to demonstrate that coal extraction or refuse removal

will be incidental and necessary to reclamation, which shall be the

primary purpose of the contract, and that it will comply with

environmental protection performance standards listed in the contract.

Next, the provision requires that applicable reclamation fees be paid

for each ton of coal extracted, sets forth criteria for the posting of

performance bonds, prohibits the incidental extraction of coal and

removal of coal refuse in areas subject to other restrictions on coal

extraction, pursuant to 52 P.S. 1396.4b, and requires surface owner

consent for right of entry and for extraction of coal. These

provisions, which are contained in subsections ``a'' through ``d'',

``f'' and ``h'' of 52 P.S. 1396.4h, have no Federal counterparts.

However, they are not inconsistent with Section 528(2) of SMCRA or 30

CFR Part 707, and add restrictions to the issuance of ``special

authorizations'' which should help to ensure that proposed projects

which are truly ``surface mining activities'' will be required to

obtain full surface mining permits. Therefore, the Director is

approving these subsections. She is also approving subsection ``e'' for

the same reasons, except for the following language, pertaining to

``no-cost contracts'', which is not approved:

For no-cost reclamation projects in which the reclamation

schedule is shorter than two (2) years the bond amount shall be a

per acre fee, which is equal to the department's average per acre

cost to reclaim abandoned mine lands; provided, however, for coal

refuse removal operations, the bond amount shall only apply to each

acre affected by the coal refuse removal operations. For long-term,

no-cost reclamation projects in which the reclamation schedule

extends beyond two (2) years, the department may establish a lesser

bond amount. In these contracts, the department may in the

alternative establish a bond amount which reflects the cost of the

proportionate amount of reclamation which will occur during a period

specified.

Also, the Director is not approving any portion of subsection

``g'', since it pertains solely to extraction of coal pursuant to no-

cost contracts. Finally, the Director is requiring the State to amend

52 P.S. 1396.4h to delete the above-quoted portion of subsection ``e'',

and to delete subsection ``g'' in its entirety.

Analysis of Proposal to Allow Placement of Excess Spoil on Adjacent AML

Lands

Placement of excess spoil on adjacent abandoned mine land has been

addressed previously in other rulemaking. Specifically, in a July 9,

1991, letter to Ohio (Administrative Record No. OH-1546), the Director

of OSM clarified OSM's position concerning the standards and

requirements which apply to the usage of excess spoil for reclamation

of abandoned mine land sites. OSM focused on the parameters for excess

spoil disposal outside the permit area as established, in part, in

several final rules approving such a provision in the West Virginia

program (45 FR 69254-69255, October 20, 1980; 46 FR 5919, January 21,

1981; and 55 FR 21328-21329, May 23, 1990).

In the January 21, 1981, Federal Register announcing approval of

the West Virginia program (46 FR 5919), the Secretary found that, for

purposes of excess spoil disposal, a reclamation contract governing

work to be performed on a Federal AML reclamation grant project is the

equivalent of permit and bond under Title V of SMCRA. In the May 23,

1990, Federal Register (55 FR 21329), OSM found that West Virginia's

proposed

[[Page 14617]]

disposal of excess spoil on a Federally funded AML reclamation project

is approvable provided the spoil is not necessary to restore

approximate original contour (AOC) on or otherwise reclaim the active

mine. In addition, as stated in the May 23, 1990, Federal Register,

fills are not to be created on AML reclamation projects. Spoil

deposited on such sites may be used only to complete reclamation and to

return the site to its AOC. OSM restricted eligibility for such spoil

deposition to AML reclamation projects funded through the Federal AML

grant process. The May 23, 1990, finding, however, did not prohibit the

possibility that ``no-cost reclamation'' contracts, which allow spoil

disposal on AML sites not included in Federally funded grants, could be

approved in the future. In order to gain OSM approval, however, ``no-

cost reclamation'' amendments would have to contain meaningful

performance incentives or safeguards to ensure that spoil is placed

only where it is needed to restore AOC and where it will not destroy or

degrade features of environmental value. In addition, the amendments

must require that spoil be placed in an environmentally and technically

sound fashion. See OSM Director's July 9, 1991, letter to Ohio

(Administrative Record No. OH-1546). In short, ``no cost reclamation''

amendments must provide a degree of security comparable to that

afforded by a Federally funded AML reclamation project.

The Director finds that Pennsylvania's proposal regarding placement

of excess spoil, at Part F, meets these requirements, for the reasons

set forth below.

First, Pennsylvania's proposal requires that the amount of excess

spoil placed on an abandoned site will not exceed that required to

restore that site to AOC. Also, the proposal limits the amount of

excess spoil placed on AML sites to that amount needed to address the

AML impacts and problems. Therefore, valley, head-of-hollow and durable

rock fills will not be constructed on these AML sites, because the

amount of material deposited would exceed that necessary to address the

AML impacts and problems.

Second, the proposal requires that the plan for excess spoil

placement pursuant to a GFCC will be developed and implemented in the

same manner as is done for Federally funded AML projects. The

environmental safeguards that therefore will apply to GFCC's should

ensure that the excess spoil is placed in an environmentally sound

fashion, and that placement will not destroy or degrade features of

environmental value.

Third, and finally, the Director finds that the proposal contains

sufficient performance incentives to require compliance with all

applicable requirements, since a consent order and agreement, in

conjunction with a permit condition, will be used to ensure that AML

sites which receive excess spoil from a Title V site are fully

reclaimed. The permit condition will provide that the operator will use

no more than that amount of excess spoil which is necessary to reclaim

the AML site and that the operator's failure to complete the required

reclamation of the AML site prohibits release of the bond on the Title

V permit. An operator's failure to complete reclamation of the AML site

would also be a violation of its permit, exposing the operator to civil

penalties and/or bond forfeiture and enforcement of the consent order

and agreement. Finally, the PADEP always has AML grant funds available

to reclaim these sites in the event that the operator defaults on the

terms of its contract.

General Findings

Pursuant to 30 CFR 884.15(a), an AMLR Plan amendment which changes

the scope, objectives or major policies followed by the State in the

conduct of its reclamation program must meet the requirements of 30 CFR

884.14 before OSM may approve it. Accordingly, OSM makes the following

findings:

1. OSM offered the public an opportunity for a public hearing on

the amendment in the December 29, 1997, Federal Register Notice, (62 FR

67590), thereby complying with the requirement of 30 CFR 884.14(a)(1);

2. In both the December 29, 1997 (62 FR 67590) and July 28, 1998

(63 FR 40237) Federal Register Notices, OSM solicited the views of

other Federal agencies having an interest in the AMLR Plan amendment,

and OSM considered the views of those agencies in reaching its

decision, thereby complying with the requirements of 30 CFR

884.14(a)(2);

3. PADEP has provided evidence of the State's legal authority,

policies and administrative structure necessary to carry out the

proposed AMLR Plan amendment, thereby complying with the requirements

of 30 CFR 884.14(a)(3);

4. The AMLR Plan amendment meets all of the requirements of the

Federal Regulations at Title 30, Chapter VII, Subchapter R, ``Abandoned

Mine Land Reclamation'', including the newly promulgated ``AML

Enhancement Rule'' at 30 CFR 874.17, and therefore complies with the

requirements of 30 CFR 884.14(a)(4);

5. Pennsylvania has an approved State regulatory program, as

announced in the July 30, 1982, Federal Register Notice (47 FR 33050),

as required by 30 CFR 884.14(a)(5); and,

6. The AMLR Plan amendment is in compliance with all applicable

State and Federal laws and regulations, and therefore complies with the

requirements of 30 CFR 884.14(a)(6).

Based upon all of the above considerations, the Director is

approving Part F.

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. Comments were received

from the Pennsylvania Coal Association, the Anthracite Region

Independent Power Producers Association, and the Indiana Coal Council,

Inc. (Administrative Record Nos. PA-855.05, 855.06 and 855.07, each

dated January 28, 1998, respectively). In each case, comments regarding

the proposed amendment were favorable and supportive, and encouraged

OSM's approval. Because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 884.14(a)(2), the Director solicited comments on

the proposed amendment from various Federal agencies with an actual or

potential interest in the Pennsylvania AMLR Plan. The Mine Safety and

Health Administration (MSHA) responded in its letter dated December 15,

1997, (Administrative Record No. PA-855.03) that it saw no conflict

with Coal Mine Safety and Health Impoundment or Refuse Pile Regulations

under 30 CFR 77.214, 215 and 216. No other comments were received.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) The Director has determined that this amendment

contains no such provisions and that EPA concurrence is therefore

unnecessary. Also, EPA did not respond to OSM's request for comments.

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

[[Page 14618]]

amendment as submitted by Pennsylvania on November 21, 1997, clarified

on July 7, 1998, and revised on October 8 and October 13, 1998, and

March 2, 1999 with the exceptions noted below. In particular, the

Director is approving Part F, which authorizes the use of GFCCs which

involve incidental coal removal, or which allow the placement of excess

spoil on adjacent Abandoned Mine Lands. In addition, the Director is

approving the statutory provisions submitted by the State, consisting

of portions of 52 P.S. 1396.3 and a new section, 52 P.S. 1396.4th, with

the exceptions noted below.

The Director is not approving the definition of ``government-

financed reclamation contract'', at 52 P.S. 1386.3, to the extent that

it proposes to allow incidental coal removal, pursuant to state

financed reclamation contracts which are less than 50 percent

government financed, on sites which have not been approved as Title IV

AML project. Projects that are state financed, but that do not receive

Title IV AML approval, can include incidental coal removal if the

project are at least 50% government financed. In addition, the Director

is not approving the portions of the definition of ``government-

financed reclamation contract'' which refer to ``no-cost contracts.''

Specifically, the Director is not approving the following language in

the definition of ``government-financed reclamation contract'':

In paragraph (1)(i), the phrase ``including a reclamation contract

where less than five hundred (500) tons is removed and the government's

cost of financing reclamation will be assumed by the contractor under

the terms of a no-cost contract''; and,

In paragraph (1)(ii), the phrase ``including where reclamation is

performed by the contractor under the terms of a no-cost contract with

the department, not involving any reprocessing of coal refuse on the

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

area.''

In addition, since the Director is not approving the use of no-cost

reclamation contracts that involve incidental extraction of coal or

coal refuse, she is also not approving the definition of ``no-cost

reclamation contract'', at 52 P.S. 1396.3.

Also, the Director is not approving the following portions of

subsection ``e'' of 52 P.S. 1396.4h:

For no-cost reclamation projects in which the reclamation

schedule is shorter than two (2) years the bond amount shall be a

per acre fee, which is equal to the department's average per acre

cost to reclaim abandoned mine lands; provided, however, for coal

refuse removal operations, the bond amount shall only apply to each

acre affected by the coal refuse removal operations. For long-term

no-cost reclamation projects in which the reclamation schedule

extends beyond two (2) years, the department may establish a lesser

bond amount. In these contracts, the department may in the

alternative establish a bond amount which reflects the cost of the

proportionate amount of reclamation which will occur during a period

specified.

Finally, the Director is not approving any portion of 52 P.S.

1396.4h., subsection ``g'', since it pertains solely to extraction of

coal pursuant to no-cost contracts.

The Director is requiring Pennsylvania to amend 52 P.S. 1396.3 and

1396.4h to delete the above-referenced language.

The Federal regulations at 30 CFR part 938, codifying decisions

concerning the Pennsylvania program, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State AMLR Plans and State Regulatory Program amendment

processes and to encourage States to bring their programs into

conformity with the Federal standards without undue delay. Consistency

of State and Federal standard is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

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

Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

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

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

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

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

State and Tribal abandoned mine land reclamation plans and revisions

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

State or Tribe, no by OSM. These standards are also not applicable to

the actual language of state regulatory programs and program amendments

for the same reason. Decisions on State and Tribal abandoned mine land

reclamation plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the Federal

regulations at 30 CFR Part 884. Similarly, under sections 503 and 505

of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and

732.17(h)(1), decisions on proposed state regulatory programs and

program amendments submitted by the states must be based solely on a

determination of whether the submittal is consistent with SMCRA and its

implementing Federal regulations and whether the other requirements of

30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans and revisions thereof are categorically excluded from

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

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

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

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

program provisions do not constitute major Federal actions within the

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

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

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

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

given year on any governmental entity or the private sector.

[[Page 14619]]

List of Subjects in 30 CFR Part 938

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 5, 1999.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 938--PENNSYLVANIA

1. The authority citation for part 938 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 938.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 938.15 Approval of Pennsylvania regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final

date publication Citation/description

------------------------------------------------------------------------

* * * *

* * *

October 8, 1998............... March 26, 1999... 52 P.S. Secs.

1396.3, 1396.4h.

------------------------------------------------------------------------

3. Section 938.16 is amended by adding new paragraphs (cccc),

(dddd), (eeee) and (ffff) to read as follows:

(cccc) By May 26, 1999, Pennsylvania must submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption, to delete the following portions of the

definition of ``government-financed reclamation contract'', at 52 P.S.

Sec. 1396.3: in paragraph (1)(i), the phrase ``including a reclamation

contract where less than five hundred (500) tons is removed and the

government's cost of financing reclamation will be assumed by the

contractor under the terms of a no-cost contract''; and, in paragraph

(1)(ii), the phrase ``including where reclamation is performed by the

contractor under the terms of a no-cost contract with the department,

not involving any reprocessing of coal refuse on the project area or

return of any coal refuse material of the project area.''

(dddd) By May 26, 1999, Pennsylvania must submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption, to delete the definition of ``no-cost

reclamation contract'', at 52 P.S. Sec. 1396.3.

(eeee) By May 26, 1999, Pennsylvania must submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption, to delete the following language

contained in subsection ``e'' of 52 P.S. Sec. 1396.4h:

For no-cost reclamation projects in which the reclamation

schedule is shorter than two (2) years the bond amount shall be a

per acre fee, which is equal to the department's average per acre

cost to reclaim abandoned mines lands; provided, however, for coal

refuse removal operations, the bond amount shall only apply to each

acre affected by the coal refuse removal operations. For long-term,

no-cost reclamation projects in which the reclamation schedule

extends beyond two (2) years, the department may establish a lesser

bond amount. In these contracts, the department in the alternative

establish a bond amount which reflects the cost of the proportionate

amount of reclamation.

(ffff) By May 26, 1999, Pennsylvania must submit either a proposed

amendment or a description of an amendment to be proposed, together

with a timetable for adoption, to delete, in its entirety, subsection

``g'' of 52 P.S. Sec. 1396.4h.

4. Section 938.25 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 938.25 Approval of Pennsylvania abandoned mine reclamation plan

amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final

date publication Citation/description

------------------------------------------------------------------------

* * * *

* * *

November 21, 1997............. March 26, 1999... Part F--Government

Financed

Construction

Contracts.

------------------------------------------------------------------------

[FR Doc. 99-7282 Filed 3-25-99; 8:45 am]

BILLING CODE 4310-05-M