[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30387-30388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14291]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-125-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; correction.
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SUMMARY: This document corrects and explains an OSM decision on
provisions of a proposed amendment to the Pennsylvania regulatory
program (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. OSM published it decision on the amendment in
the March 26, 1999, Federal Register (64 FR 14610). On May 5, 1999,
Pennsylvania submitted a letter requesting that OSM reconsider portions
of this decision. Specifically, Pennsylvania requested that OSM rescind
its disapprovals of Pennsylvania's definition of ``no-cost reclamation
contract,'' a portion of the definition of ``government-financed
construction contract,'' a portion of Section 4.8(e)(52 P.S.
1396.4h(e)) and all of Section 4.8(g)(52 P.S. 1396.4h(g)), as they
pertain to no-cost contracts. Pennsylvania also requested that OSM
rescind its requirements that Pennsylvania amend PA SMCRA to delete the
specified provisions.
EFFECTIVE DATE: June 8, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Robert J. Biggi, Director,
Harrisburg Field Office, Office of Surface Mining Reclamation and
Enforcement, Third Floor, Suite 3C Harrisburg Transportation Center
(Amtrack), 415 Market Street, Harrisburg, Pennsylvania 17101.
Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION: By letter dated November 21, 1997
(Administrative Record N0. PA-855.00), the Pennsylvania Department of
Environmental Protection (PADEP) submitted proposed program amendment
No. 2 to the Pennsylvania Abandoned Mine Land Reclamation (AMLR) Plan.
By letters dated October 8 and October 13, 1998, PADEP submitted
portions of its state law which it believed provided specific
authorization for the proposed changes to the AMLR Plan.
(Administrative Record No. PA 855.12). On March 26, 1999, OSM approved
portions of the amendment, but disapproved sections referencing no-cost
reclamation contracts. (64 FR 14610). By letter dated May 6, 1999
(Administrative Record No. PA-855.17), the PADEP submitted a letter to
OSM, requesting that OSM rescind its disapprovals of the portions of
the statutory amendment pertaining to no-cost reclamation contracts.
This document revises and explains OSM's decisions with respect to no-
cost reclamation contracts. In March 26, 1999, Federal Register,
Notice, OSM determined that:
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.
64 FR at 14616.
As a result of this determination, OSM disapproved the definition
of the term ``no-cost reclamation contract,'' and also disapproved
other portions of the statutory amendment which contained the term
``no-cost contract'' or ``no-cost reclamation contract.'' Finally, OSM
required PADEP to amend its program to delete all statutory language in
the amendment pertaining to ``no-cost reclamation contracts.'' 30 CFR
938.16 (cccc), (dddd), (eeee), and (ffff).
In discussions with OSM after publication of the March 26, 1999,
decision, PADEP provided additional information pertaining to its
definition of ``no-cost reclamation contracts.'' OSM requested that
this information be provided in writing for further consideration.
PADEP's letter dated May 6, 1999 (Administrative Record No. PA-855.17),
explained that its definition of ``no-cost reclamation contract''
clearly envisions PADEP incurring indirect costs in reviewing
information provided by a contractor, and in determining whether a
contractor is eligible for a contract. PADEP also explained that the
prohibition on the expenditure of Commonwealth funds, contained in the
definition of ``no-cost reclamation contract'' refers only to ``what
OSM considers direct expenditures. In Pennsylvania, `expenditures of
Commonwealth Funds' would be a direct payment of money to the
contractor from the Commonwealth to perform the reclamation.''
Therefore, PADEP contended, only direct payments to contractors are
prohibited, but indirect project costs can, and indeed must, be
allowed. Since the definition of ``no-cost reclamation contract'' does
not prohibit indirect costs, PADEP stated that the definition is no
less effective than and in accordance with the federal definition of
``government financed construction '' at 30 CFR 707.5. Finally, the
PADEP argued that if the definition of ``no-cost reclamation contract''
can be approved, then all of the statutory sections of the amendment
which contain references to ``no-cost reclamation contracts'' should
also be approved.
Upon further consideration, and in view of the May 5, 1999,
clarification provided by the PADEP, OSM hereby rescinds the following
disapprovals:
52 P.S. 1396.3, the definition of ``government-financed reclamation
contract,'' 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, 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.''
52 P.S. 1396.3, the definition of ``no-cost reclamation contract.''
52 P.S. 1396.4h(e), the following language: 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.
52 P.S. 1396.4h(g), in its entirety.
In addition, OSM is removing the required amendments at 30 CFR
[[Page 30388]]
938.16(cccc), (dddd), (eeee) and (ffff). The effect of these actions is
that OSM is now approving the concept of ``no-cost reclamation
contracts,'' and is also approving the statutory amendments referenced
above, insofar as such contracts include indirect government financing.
However, OSM's approval of these provisions is effective only to the
extent that ``no-cost reclamation contracts'' which provide for the
incidental extraction of coal, and which are less than 50% government
financed, through indirect project financing, are treated in the same
manner as Federally funded Title IV AML projects. Specifically, the
projects must comply with the requirements of Subchapter R, Chapter VII
of the Federal regulations, even where the projects receive state
financing, but do not receive Federal financing.
The Federal regulations at 30 CFR part 938, codifying decisions
concerning the Pennsylvania program, are being amended to implement
this revised finding.
Section 938.15 Approval of Pennsylvania Regulatory Program
Amendments is being amended in the table (third column, 64 FR at 14619)
to show both the March 26, 1999, final publication of this amendment,
and the date of the revision discussed in this notice.
Section 938.16 Required Regulatory Program Amendments is being
amended to remove the required amendments at 30 CFR 938.16 (cccc),
(dddd), (eeee) and (ffff).
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 19, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
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 revising the entry
having the original amendment submission date of October 8, 1998, to
read as follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
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Original amendment submission date Date of final publication Citation/description
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October 8, 1998...................... March 26, 1999 and June 8, 52 P.S. 1396.3, 1396.4h.
1999.
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Sec. 938.16 [Amended]
3. Section 938.16 is amended by removing and reserving paragraphs
(cccc), (dddd), (eeee), and (ffff).
[FR Doc. 99-14291 Filed 6-7-99; 8:45 am]
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