[Federal Register Volume 63, Number 144 (Tuesday, July 28, 1998)]
[Proposed Rules]
[Pages 40237-40239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20163]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-121-FOR]


Pennsylvania Abandoned Mine Land Reclamation Program

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

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: OSM is reopening the public comment period on a proposed 
amendment to the Pennsylvania Abandoned Mine Land Reclamation (AMLR) 
Plan (hereinafter referred to as the Pennsylvania Program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 
1201 et seq., as amended. The proposed amendment adds a new section 
``F'' entitled Government Financed Construction Contracts (GFCC) to 
authorize the incidental removal of coal at AML sites that would not 
otherwise be mined and reclaimed under the Title V program. The 
proposed amendment also includes the Program Requirements and 
Monitoring Requirements related to the use of GFCC for that purpose. 
The proposed amendment is intended to improve the efficiency of the 
Pennsylvania program by allowing the Government-financed construction 
exemption in Section 528 of SMCRA to be applied in cases involving less 
than 50% government 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.

DATES: Written comments must be received by 4:00 p.m., [E.D.T.] August 
12, 1998.

ADDRESSES: Written comments should be mailed or hand delivered to 
Robert Biggi, Field Office Director, at the address listed below. 
Copies of the Pennsylvania program, the proposed amendment, and all 
written comments received in response to this document will be 
available for public review at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays. Each 
requester may receive one free copy of the proposed amendment by 
contacting OSM's Harrisburg Field Office: Mr. Robert J. Biggi, 
Director, Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg 
Transportation Center (Amtrack), 415 Market Street, Harrisburg, 
Pennsylvania 17101. Telephone: (717) 782-4036.

FOR FURTHER INFORMATION CONTACT:
Mr. Robert J. Biggi, Director, Harrisburg Field Office, Third Floor, 
Suite 3C, Harrisburg Transportation Center (Amtrack) 415 Market Street, 
Harrisburg, Pennsylvania 17101. Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program

    On July 30, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. Background on the Pennsylvania 
program, including the Secretary's findings and the disposition of 
comments, can be found in the July 30, 1982 Federal Register (47 FR 
33079). Subsequent actions concerning the AMLR program amendments are 
identified at 30 CFR 938.20 and 938.25.

[[Page 40238]]

II. Description of the Proposed Amendment

    By letter dated November 21, 1997 (Administrative Record No. PA-
855.00), the Pennsylvania Department of Environmental Protection 
(PADEP) submitted proposed Program Amendment No. 2 to the Pennsylvania 
Abandoned Mine Reclamation Plan. In addition, PADEP also submitted the 
following documents: Basis of Authority for the Proposed Amendment, AML 
Amendment Conformance with 30 CFR Section 884.13, Assistant Counsel's 
Opinion of Authority for GFCC, PADEP Organization Chart and the Office 
of Mineral Resources Management Organization Chart. The proposed 
amendment is intended to improve the efficiency of the Pennsylvania 
program by allowing the Government-financed construction exemption in 
Section 528 of SMCRA to be applied in certain cases involving less than 
50% government financing. The inspection forms and related instructions 
to be utilized to monitor the GFCC program are part of the amendment. 
Pennsylvania submitted the proposed amendment at its own initiative.
    OSM announced receipt of the proposed amendment in the December 29, 
1997, Federal Register (62 FR 67590) and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on January 28, 1998. However, OSM's review determined 
that several items contained in the proposed amendments required 
clarification. As a result, a letter requesting clarification on three 
items was sent to Pennsylvania dated June 5, 1998 (Administrative 
Record No. PA-855.08). Pennsylvania initially responded in its letter 
dated June 17, 1998, (Administrative Record No. PA 855.09), that it 
would require additional time to respond to OSM's request, and that it 
expected to provide a response by July 15. A response was received from 
Pennsylvania in its letter dated July 7, 1998 (Administrative Record 
No. PA-855.10). Therefore, OSM is reopening the public comment period 
regarding the following clarifications to Pennsylvanians proposed 
amendments:
    Pennsylvania was asked to clarify how it would fund projects in 
cases where the operator defaults on the contract or otherwise fails to 
perform the necessary reclamation. OSM noted that the proposed 
amendment at page 15 requires that a performance bond shall be 
submitted for the GFCC where required, but it does not state the 
authority for requiring a bond, nor does it state the conditions under 
which a bond would be required. Pennsylvania responded 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. 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 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 than 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 be a violation of 
its permit, exposing the operator to civil penalties and/or bond 
forfeiture. Additionally, the consent order and agreement will make it 
possible for the PADEP to have a court enforce the consent order and 
agreement and require the operator to complete the reclamation. 
Pennsylvania also responded that the authority for requiring a bond is 
contained in the statutes cited in the legal opinion attached to the 
proposed program amendment initially submitted. Pennsylvania revised 
pages 15 and 16 of its proposed amendment to include these 
clarifications.
    Pennsylvania was also 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 that 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 which is 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 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.
    Pennsylvania was requested to include in its AML 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 the 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.''

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 AMLR 
program amendments. Specifically, OSM is seeking comments on the 
clarifications to the State's AML Plan that were submitted on July 7, 
1998 (Administrative Record No. PA 855.10). Comments should address 
whether the proposed amendment with these clarifications satisfies the 
applicable program approval criteria of 30 CFR 884.15. 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.

[[Page 40239]]

Comments received after the time indicated under DATES or at locations 
other than the Harrisburg Field Office will not necessarily be 
considered in the final rulemaking or included in the Administrative 
Record.

IV. Procedural Determinations

Executive Order 12866

    This proposed rule is exempted from review by the Office of 
Management and Budget (OMB) under Executive Order 12866 (Regulatory 
Planning and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 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, not by OSM. Decisions on proposed 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 30 CFR 
Parts 884 and 888.

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)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions in the analyses for the corresponding Federal regulations.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 21, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-20163 Filed 7-27-98; 8:45 am]
BILLING CODE 4310-05-M