[Federal Register Volume 63, Number 212 (Tuesday, November 3, 1998)]
[Proposed Rules]
[Pages 59259-59262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29397]
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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% financing only in the limited situation where the construction
constitutes a government approved and administered abandoned mine land
reclamation project under Title IV of SMCRA. The amendment is also
intended to authorize the use of excess spoil from a valid, permitted
coal mining operation for the reclamation of an abandoned unreclaimed
area outside of the permit area.
The comment period is being reopened because Pennsylvania has, at
OSM's request, submitted portions of its State law which it believes
provides specific authority to allow the State Regulatory Authority to
approve exemptions for the incidental removal of coal pursuant to
government-financed reclamation projects.
DATES: Written comments must be received by 4:00 p.m., [E.D.T.]
November 18, 1998.
ADDRESSES: Written comments should be mailed or hand delivered to
Robert Biggi, Field Office Director, at the address listed below.
Copies of the Pennsylvania program, the proposed amendment, and all
written comments received in response to this document will be
available for public review at the addresses listed below during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting OSM's Harrisburg Field Office. Mr. Robert J. Biggi,
Director, Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg
Transportation Center (Amtrack) 415 Market Street, Harrisburg,
Pennsylvania 17101. Telephone: (717) 782-4036.
FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director,
Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg
Transportation Center (Amtrack) 415 Market Street, Harrisburg,
Pennsylvania 17101. Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
On July 30, 1982, the Secretary of the Interior conditionally
approved the Pennsylvania program. Background on the Pennsylvania
program, including the Secretary's findings and the disposition of
comments can be found in the July 30, 1982 Federal Register (47 FR
33079). Subsequent actions concerning the AMLR program amendments are
identified at 30 CFR 938.20 and 938.25.
II. Description of the Proposed Amendment
By letter dated November 21, 1997 (Administrative Record No. PA-
855.00), the Pennsylvania Department of Environmental Protection
(PADEP) submitted proposed Program Amendment No. 2 to the Pennsylvania
Abandoned Mine Reclamation Plan. In addition, PADEP also submitted the
following documents: Basis of Authority for the Proposed Amendment, AML
Amendment Conformance with 30 CFR Section 884.13, Assistant Counsel's
Opinion of Authority for GFCC, PADEP Organization Chart and the Office
of Mineral Resources Management Organization Chart. The proposed
amendment is intended to improve the efficiency of the Pennsylvania
program by allowing the Government-financed
[[Page 59260]]
construction exemption in Section 528 of SMCRA to be applied in certain
cases involving less than 50% financing. The inspection forms and
related instructions to be utilized to monitor the GFCC program are
part of the amendment. Pennsylvania submitted the proposed amendment at
its own initiative.
OSM announced receipt of the proposed amendment in the December 29,
1997, Federal Register (62 FR 67590) and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on January 28, 1998. However, OSM's review determined
that several items contained in the proposed amendments required
clarification. As a result, a letter requesting clarification on three
items was sent to Pennsylvania dated June 5, 1998 (Administrative
Record No. PA-855.08). Pennsylvania initially responded in its letter
dated June 17, 1998 (Administrative Record No. PA 855.09), that it
would require additional time to respond to OSM's request, and that it
expected to provide a response by July 15. A response was received from
Pennsylvania in its letter dated July 7, 1998 (Administrative Record
No. PA 855.10). Therefore, OSM reopened the public comment period
regarding Pennsylvania's response in the July 28, 1998, Federal
Register (63 FR 40237). The comment period closed on August 12, 1998
and no comments were received. However, OSM subsequently informed
Pennsylvania that its program appeared to lack the statutory authority
to implement the exemption for incidental coal removal pursuant to
government-financed reclamation projects. Therefore, in a letter dated
October 8, 1998 (Administrative Record No. PA 855.12), Pennsylvania
subsequently submitted portions of its state law which it believes
provides specific authorization to implement the proposed changes to
its AML Plan. Pennsylvania requested to have the statutory provisions
included as part of Pennsylvania's Abandoned Mine Reclamation Plan
Amendment. The proposed additions are as follows:
52 P.S. Sec. 1396.3
``Government-financed reclamation contract'' shall mean:
(1) For the purposes of Section 4.8, a federally-funded or
state-funded and approved abandoned mine reclamation contract
entered into between the department and an eligible person or entity
who has obtained special authorization to engage in incidental and
necessary extraction of coal refuse pursuant to government-financed
reclamation which is either:
(i) a State-financed reclamation contract less than or equal to
fifty thousand dollars ($50,000) total project costs, where up to
five hundred (500) tons of coal is extracted, including a
reclamation contract where less than five hundred (500) tons is
removed and the government's cost of financing reclamation will be
assumed by the contractor under the terms of the no-cost contract;
(ii) a State-financed reclamation contract authorizing the
removal of coal refuse, including where reclamation is performed by
the contractor under the terms of the no-cost contract with the
department, not involving any reprocessing of coal refuse on the
project area or return of any coal refuse material to the project
area;
(iii) a State-financed reclamation contract greater than fifty
thousand dollars ($50,000) total project costs or a federally-
financed abandoned mine reclamation project: Provided, That the
department determines in writing that extraction of coal is
essential to physically accomplish the reclamation of the project
area and is incidental and necessary to reclamation; or (iv)
federally financed or state-financed extraction of coal which the
department determines in writing to physically extinguish an
abandoned mine fire that poses a threat to the public health, safety
and welfare.
(2) For purposes of determining whether or not extraction of
coal is incidental and necessary under section 4.8, the department
shall consider standard engineering factors and shall not in any
case consider the economic benefit deriving from extraction of coal.
Necessary extraction of coal shall in no case include:
(i) the extraction of coal in an area adjacent to the previously
affected area which will be reclaimed; or
(ii) the extraction of coal beneath the previously affected area
which will be reclaimed.
``Surface mining activities'' shall mean the extraction of coal
from the earth or from waste or stockpiles or from pits or banks by
removing the strata or material which overlies or is above or
between them or otherwise exposing and retrieving them from the
surface, including, but not limited to, strip, auger mining,
dredging, quarrying and leaching, and all surface activity connected
with surface or underground mining, including, but not limited to,
exploration, site preparation, entry, tunnel, drift, slope, shaft
and borehole drilling and construction and activities related
thereto, but not including those portions of mining operations
carried out beneath the surface by means of shafts, tunnels or other
underground mine openings. ``Surface mining activities'' shall not
include any of the following:
(1) Extraction of coal or coal refuse removal pursuant to a
government-financed reclamation contract for the purposes of section
4.8.
(2) Extraction of coal as an incidental part of Federal, State
or local government-financed highway construction pursuant to
regulations promulgated by the Environmental Quality Board.
(3) The reclamation of abandoned mine lands not involving
extraction of coal or excess spoil disposal under a written
agreement with the property owner and approved by the department.
(4) Activities not considered to be surface mining as determined
by the United States Office of Surface Mining, Reclamation and
Enforcement and set forth in department regulations.
``No-cost reclamation contract'' shall mean a contract entered
into between the department and an eligible person for the purpose
of reclaiming unreclaimed abandoned mine lands and which does not
involve the expenditure of Commonwealth funds.
Sec. 1396.4h. [also referred to as ``section 4.8''] Government-
financed reclamation contracts authorizing incidental and necessary
extraction of coal or authorizing removal of coal refuse
(a) No person may engage in the extraction of coal or in removal
of coal refuse pursuant to a government-financed reclamation
contract without a valid surface mining permit issued pursuant to
this act unless such person affirmatively demonstrates that he is
eligible to secure special authorization pursuant to this section to
engage in a government-financed reclamation contract authorizing
incidental and necessary extraction of coal or authorizing removal
of coal refuse. The department shall determine eligibility before
entering into a government-financed reclamation contract authorizing
incidental and necessary extraction of coal or authorizing removal
of coal refuse. The department may provide the special authorization
as part of the government-financed reclamation contract: Provided,
That the contract contains and does not violate the requirements of
this section. The department shall not be required to grant a
special authorization to any eligible person. The department may,
however, in its discretion, grant a special authorization allowing
incidental and necessary extraction of coal or allowing removal of
coal refuse pursuant to a government-financed reclamation contract
in accordance with this section. (b) Only eligible persons may
secure special authorization to engage in incidental and necessary
extraction of coal or to engage in removal of coal refuse pursuant
to a government-financed reclamation contract. A person is eligible
to secure a special authorization if he can demonstrate, at a
minimum, to the department's satisfaction that:
(1) The contractor or any related party or subcontractor which
will act under its direction has no history of past or continuing
violations which show the contractor's lack of ability or intention
to comply with the acts or the rules and regulations promulgated
thereunder, whether or not such violation relates to any adjudicated
proceeding agreement, consent order or decree, or which resulted in
a cease order or civil penalty assessment. For the purposes o'f this
section, the term ``related party'' shall mean any partner,
associate, officer, parent corporation, affiliate or person by or
under common control with the contractor.
(2) The person has submitted proof that any violation related to
the mining of coal by
[[Page 59261]]
the contractor or any related party or subcontractor which will act
under its direction of any of the acts, rules, regulations, permits
or licenses of the department has been corrected or is in the
process of being corrected to the satisfaction of the department,
whether or not the violation relates to any adjudicated proceeding,
agreement, consent order or decree or which resulted in a cease
order or civil penalty assessment. For purposes of this section, the
term ``related party'' shall mean any partner, associate, officer,
parent corporation, subsidiary corporation, affiliate or person by
or under common control with the contractor.
(3) The person has submitted proof that any violation by the
contractor or by any person owned or controlled by the contractor or
by a subcontractor which acts under its direction of any law, rule
or regulation of the United States or any state pertaining to air or
water pollution has been corrected or is in the process of being
satisfactorily corrected.
(4) The person or any related party or subcontractor which will
act under the direction of the contractor has no outstanding unpaid
civil penalties which have been assessed for violations of either
this act or the act of June 22, 1937 (P.L. 1987, No. 394), known as
``The Clean Streams Law'' (35 P.S. Sec. 691.1 et seq.), in
connection with either surface mining or reclamation activities.
(5) The person or any related party or subcontractor which will
act under the direction of the contractor has not been convicted of
a misdemeanor or felony under this act or the acts set forth in
subsection (e) and has not had any bonds declared forfeited by the
department.
(c) Any eligible person who proposes to engage in extraction of
coal or in removal of coal refuse pursuant to a government-financed
reclamation contract may request and secure special authorization
from the department to conduct such activities under this section.
The department may issue the special authorization as part of the
government-financed reclamation contract: Provided, That the
contract contains and does not violate the requirements of this
section. A special authorization can only be obtained if a clause is
inserted in a government-financed reclamation contract authorizing
such extraction of coal or authorizing removal of coal refuse and
the person requesting such authorization has affirmatively
demonstrated to the department's satisfaction that he has satisfied
the provisions of this section. A special authorization shall only
be granted by the department prior to the commencement of extraction
of coal or commencement of removal of coal refuse on a project area.
In order to be considered for a special authorization by the
department, an eligible person must demonstrate at a minimum that:
(1) The primary purpose of the operation to be undertaken is the
reclamation of abandoned mine lands.
(2) The extraction of coal will be incidental and necessary, or
the removal of coal refuse will be required, to accomplish the
reclamation of abandoned mine lands pursuant to a government-
financed reclamation contract.
(3) Incidental and necessary extraction of coal or in removal of
coal refuse will be confined to the project area being reclaimed.
(4) All extraction of coal or in removal of coal refuse and
reclamation activity undertaken pursuant to a government-financed
reclamation project will be accomplished pursuant to:
(i) the applicable environmental protection performance
standards promulgated in the rules and regulations relating to
surface coal mining listed in the government-financed reclamation
contract; and
(ii) additional conditions included in the government-financed
reclamation contract by the department.
(d) The contractor will pay any applicable per-ton reclamation
fee established by the United States Office of Surface Mining
Reclamation and Enforcement (OSMRE) for each ton of coal extracted
pursuant to a government-financed reclamation project.
(e) Prior to commencing extraction of coal or commencement of
removal of coal refuse pursuant to a government-financed reclamation
project, the contractor shall file with the department a performance
bond payable to the Commonwealth and conditioned upon the
contractor's performance of all the requirements of the government-
financed reclamation contract, this act, ``The Clean Streams Law'',
the act of January 8, 1960 (1959 P.L. 2119, No. 787) (35 P.S.
Sec. 4001 et. seq.), known as the ``Air Pollution Control Act'', the
act of September 24, 1968 (Pub. L. 1040, No 318) (52 P.S. Sec. 30.51
et seq.), known as the ``Coal Refuse Disposal Control Act,'' where
applicable, the act of November 26, 1978 (Pub. L. 1375, No. 325) (32
P.S. Sec. 693.1 et seq.), known as the ``Dam Safety and
Encroachments Act, and, where applicable, the act of July 7, 1980
(Pub. L. 380, No. 97) (35 P.S. Sec. 6018.101 et seq.), known as the
``Solid Waste Management Act''. An operator posting a bond
sufficient to comply with this section shall not be required to post
a separate bond for the permitted area under each of the acts herein
above enumerated. For government-financed reclamation contracts
other than a no-cost reclamation contract, the criteria for
establishing the amount of the performance bond shall be the
engineering estimate, determined by the department, of meeting the
environmental obligations enumerated above. The performance bond
which is provided by the contractor under a contract other than a
government-financed reclamation contract shall be deemed to satisfy
the requirements of this section provided that the amount of the
bond is equivalent to or greater than the amount determined by the
criteria set forth in this subsection. For no-cost reclamation
projects in which the reclamation schedule is shorter than two (2)
years the bond amount shall be a per acre fee, which is equal to the
department's average per acre cost to reclaim abandoned mine lands;
provided, however, for coal refuse removal operations, the bond
amount shall only apply to each acre affected by the coal refuse
removal operations. For long-term, no-cost reclamation projects in
which the reclamation schedule extends beyond two (2) years, the
department may establish a lesser bond amount. In these contracts,
the department may in the alternative establish a bond amount which
reflects the cost of the proportionate amount of reclamation which
will occur during a period specified.
(f) The department shall insert in government-financed
reclamation contracts conditions which prohibit coal extraction
pursuant to government-financed reclamation in areas subject to the
restrictions of Section 4.2 (52 P.S. Sec. 1396.4b.), except as
surface coal mining is allowed pursuant to that section.
(g) Any person engaging in extraction of coal pursuant to a no-
cost government-financed reclamation contract authorized under this
section who affects a public or private water supply by
contamination or diminution shall restore or replace the affected
supply with an alternate supply adequate in quantity and quality for
the purposes served.
(h) Extraction of coal or removal of coal refuse pursuant to a
government-financed reclamation contract cannot be initiated without
the consent of the surface owner for right of entry and consent of
the mineral owner for extraction of coal. Nothing in this section
shall prohibit the department's entry onto land where such entry is
necessary in the exercise of police powers.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 884.15 and 30 CFR
732.17, OSM is now seeking comment on whether the amendment proposed by
Pennsylvania satisfies the applicable requirements for the approval of
program amendments. Specifically, OSM is seeking comments on the
incorporation of the statutory references as submitted on October 8,
1998 (Administrative Record No. PA 855.12) into the program amendment
submission. Comments should address whether the proposed amendment with
these statutory references and definitions satisfy the applicable
program approval criteria of 30 CFR 884.15 and 30 CFR 732.17. If the
amendment is deemed adequate, it will become part of the Pennsylvania
program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under ``DATES'' or at locations other than the Harrisburg Field Office
will not necessarily be considered in the final rulemaking or included
in the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This proposed rule is exempted from review by the Office of
Management and Budget (OMB) under Executive Order
[[Page 59262]]
12866 (Regulatory Planning and Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State and Tribal abandoned mine land reclamation plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State or Tribal, not by OSM. These standards are also not applicable to
the actual language of State regulatory programs and program amendments
for the same reason. Under sections 503 and 505 of SMCRA (30 U.S.C.
1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions
on proposed State regulatory programs, program amendments, abandoned
mine land reclamation plans and revisions thereof submitted by the
States must be based solely on a determination of whether the submittal
is consistent with Titles IV and V of SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, 732 and 884 have been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State and Tribal abandoned mine land
reclamation plans and revisions thereof are categorically excluded from
compliance with the National Environmental Policy Act (42 U.S.C. 4332)
by the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)), and since section 702(d) of SMCRA (30 U.S.C.
1292(d)) provides that agency decisions on proposed State regulatory
program provisions do not constitute major Federal actions within the
meaning of section 102(2)(C) of the National Environmental Policy Act
(42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions in the analyses for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 27, 1998.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-29397 Filed 11-2-98; 8:45 am]
BILLING CODE 4310-05-P