[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