[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Rules and Regulations]
[Pages 14610-14619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7282]


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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; 
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.
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[FR Doc. 99-7282 Filed 3-25-99; 8:45 am]
BILLING CODE 4310-05-M