[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25472-25491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9570]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-124-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with certain exceptions, a proposed 
amendment to the Pennsylvania program under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposed 
to revise its Surface Mining Conservation and Reclamation Act (PASMCRA) 
and implementing regulations at 25 Pa Code Chapters 86-90 with regard 
to various issues including bonding, remining and reclamation, 
postmining discharges, and water supply protection/replacement. 
Pennsylvania revised its program to provide additional safeguards and 
clarify ambiguities.

DATES: Effective Date: May 13, 2005.

FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh 
Field Division; Telephone: (717) 782-4036; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Effect of Director's Decision
VII. Procedural Determinations

I. Background on the Pennsylvania Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Pennsylvania program on July 30, 1982. You 
can find background information on the Pennsylvania program, including 
the Secretary's findings, the disposition of comments, and conditions 
of approval in the July 30, 1982, Federal Register (47 FR 33050). You 
can also find later actions concerning Pennsylvania's program and 
program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Submission of the Proposed Amendment

    By letter dated December 18, 1998 (Administrative Record No. PA 
853.01), the Pennsylvania Department of Environmental Protection 
(PADEP) submitted a proposed amendment to its program covering various 
issues including bonding, remining and reclamation, postmining 
discharges, and water supply protection/replacement. The proposal 
included two documents: ``Provisions of Pennsylvania's Statute--Surface 
Mining Conservation and Reclamation Act--Submitted for Program 
Amendment'' and ``Provisions of Pennsylvania's Regulations--25 Pa. Code 
Chapters 86-90--Submitted for Program Amendment.''
    We announced receipt of the proposed amendment in the March 12, 
1999 Federal Register (64 FR 12269), and in the same document invited 
public comment and provided an opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period closed on 
April 12, 1999. Please refer to the March 12, 1999, Federal Register 
for additional background information. In the July 8, 1999 Federal 
Register (64 FR 36828), we reopened the comment period in response to a 
June 1, 1999, letter (Administrative Record No. PA 853.11) from PADEP 
regarding deletion of the definition of the term ``best professional 
judgment'' at 25 Pa. Code 87.202 and 25 Pa. Code 88.502, and the 
deletion of subsections 25 Pa. Code 87.207(b) and 25 Pa. Code 
88.507(b). The reopened public comment period ended on July 23, 1999. 
We received comments from: the Pennsylvania Historical and Museum 
Commission dated January 14, 1999 (Administrative Record No. PA 
853.03); the United States Department of Agriculture, Natural Resources 
Conservation Service dated January 19, 1999 (Administrative Record No. 
PA 853.04); the U.S. Department of Labor, Mine Safety and Health 
Administration (MSHA), New Stanton, Pennsylvania, Office dated January 
20, 1999 (Administrative Record No. PA 853.05); MSHA's Wilkes-Barre, 
Pennsylvania, Office dated January 26, 1999 (Administrative Record No. 
PA 853.06); Amerikohl Mining, Inc. dated March 29, 1999 (Administrative 
Record No. PA 853.08); the Pennsylvania Coal Association dated April 9, 
1999 (Administrative Record No. PA 853.09); Schmid and Company Inc., 
Consulting Ecologists dated April 9, 1999 (Administrative Record No. PA 
853.10); and, the U.S. Environmental Protection Agency dated May 25, 
2000 (Administrative Record No. PA 853.19).
    By letters dated September 22, 1999 (Administrative Record No. PA 
853.14), and April 6, 2000 (Administrative Record No. PA 853.17), we 
requested

[[Page 25473]]

clarification from Pennsylvania on various aspects of its amendment. In 
an October 3, 2002, letter to Pennsylvania (Administrative Record No. 
PA 853.22), we indicated that some of the issues in our September 22, 
1999, and April 6, 2000, letters were no longer valid and that we were 
withdrawing them. The conclusions in this letter were the result of our 
internal deliberations and the issues were not removed as the result of 
information from any other source. Since the issuance of the October 3, 
2002, letter, we have had numerous meetings with Pennsylvania to 
discuss the items remaining from the September 22, 1999, and the April 
6, 2000, letters.
    The meetings with Pennsylvania resulted in Pennsylvania providing 
us with information to clarify the meaning of various parts of its 
amendment. We prepared a document listing those clarifications and 
placed it in the administrative record (Administrative Record No. PA 
853.25). Additionally, Pennsylvania submitted two letters to us 
modifying the December 18, 1998, amendment. Those letters were dated 
December 23, 2003 (Administrative Record No. PA 853.23), and April 13, 
2004 (Administrative Record No. PA 853.24). Based on Pennsylvania's 
revisions and additional explanatory information for its amendment, we 
reopened the public comment period in the November 24, 2004, Federal 
Register (69 FR 68285) (Administrative Record No. PA 853.26). The 
public comment period ended on December 9, 2004. In response to the 
November 24, 2004, request for comments, we received letters from: the 
U.S. Environmental Protection Agency dated December 27, 2004 
(Administrative Record No. PA 853.29); MSHA's Arlington, Virginia, 
Office dated December 20, 2004 (Administrative Record No. PA 853.28); 
MSHA's Wilkes-Barre, Pennsylvania, Office dated January 7, 2005 
(Administrative Record No. PA 853.30); and, Citizens for Pennsylvania's 
Future dated January 18, 2005 (Administrative Record No. PA 853.31).

III. OSM's Findings

    In the amendment, Pennsylvania modified its Surface Mining 
Conservation and Reclamation Act (PASMCRA) and portions of its 
regulations at 25 Pa. Code Chapter 86, Surface and Underground Coal 
Mining: General; 25 Pa. Code Chapter 87, Surface Mining of Coal; 25 Pa. 
Code Chapter 88, Anthracite Coal; 25 Pa. Code Chapter 89, Underground 
Mining of Coal and Coal Preparation Facilities; and, 25 Pa. Code 
Chapter 90, Coal Refuse Disposal. In some cases, Pennsylvania made the 
same modifications to regulations in several different Chapters. In 
those cases, we discussed all the similar regulations together. Our 
discussion of the amendment appears below by the applicable sections of 
PASMCRA followed by the applicable sections of the Pennsylvania 
regulations.

PASMCRA

    Section 3, Definitions of the terms ``government financed 
reclamation contract,'' ``no-cost reclamation contract,'' and ``surface 
mining activities'' were previously approved in the March 26, 1999, and 
June 8, 1999, editions of the Federal Register (64 FR 14610, 64 FR 
30387, respectively). Therefore, these statutory provisions are not a 
part of this rulemaking.
    Section 3, Definition of the term ``total project costs.'' 
Pennsylvania added this definition for use in Section 4.8 of PASMCRA. 
Pennsylvania defines the term to mean the entire cost of performing a 
government financed reclamation contract as determined by Pennsylvania 
even if the cost is assumed by the contractor pursuant to a no-cost 
contract with PADEP. When we reviewed the statutory provisions listed 
above in 1999, we should also have requested that PADEP separately 
submit the definition of ``total project costs,'' but inadvertently 
neglected to do so. There is no comparable definition in the Federal 
regulations. However, so long as it is applied in a manner consistent 
with our March 26, 1999, decision (64 FR 14610), as amended by our June 
8, 1999, decision (64 FR 30387), the definition is not inconsistent 
with the Federal regulations at 30 CFR part 707 that provide for 
government-financed construction. Therefore, we are approving it.
    Section 3.1. This section contains the requirements for obtaining a 
license to mine coal. Section 3.1(a) was amended to require anyone 
mining coal to obtain a license and to provide the requirements for 
obtaining a license. Section 3.1(b) which provides the circumstances 
under which Pennsylvania will not issue or renew a mining license was 
amended to specify that it applies to any person who mines coal by the 
surface mining method. Section 3.1(c) which requires an application for 
a license, renewal or permit to be accompanied by a certificate of 
public liability insurance was amended to change references from 
surface mining operations to surface mining activities. The changes 
Pennsylvania made make it clear that certain licensing provisions apply 
to all who mine coal where formerly they only applied to surface mine 
operators. There are no licensing requirements in the Federal 
regulations. However, these requirements are not inconsistent with the 
application and permitting requirements of the Federal regulations. 
Therefore, we are approving them.
    Section 3.1(d) was amended to add a provision that a permit will be 
denied to certain entities engaged in mining coal if they control or 
have controlled mining operations with a demonstrated pattern of 
willful violations. This provision is no less stringent than the 
corresponding portion of Section 510(c) of SMCRA, and we are therefore 
approving it.
    Section 4(a) was modified to require that before anyone can mine 
coal, a permit must be obtained. Previously, the requirement was that 
anyone wishing to mine minerals was required to obtain a permit. This 
provision, as amended, remains no less stringent than Section 506(a) of 
SMCRA, 30 U.S.C. 1256(a), and therefore, we are approving it.
    Section 4(a)(2)(C) was modified to provide that for areas 
previously disturbed by surface mining activities that were not 
reclaimed to the standards of PASMCRA and are proposed to be remined, 
Pennsylvania may approve a vegetative cover which may not be less than 
the vegetative cover existing before the redisturbance and must be 
adequate to control erosion and achieve the postmining land use. This 
subsection is no less effective than the ground cover revegetation 
requirements of the Federal regulations at 30 CFR 816.116(a) and 
(b)(5). Therefore, we are approving this subsection.
    Section 4(d) was modified by deleting existing language and adding 
language that expressly describes other forms of collateral or bonds 
that are acceptable. The amendment adds life insurance policies to the 
list of acceptable forms of collateral bonds. The life insurance policy 
must be fully paid and noncancelable with a cash surrender value 
irrevocably assigned to PADEP at least equal to the amount of the 
required bonds. In addition, the policy cannot be borrowed against and 
cannot be utilized for any purpose other than assuring reclamation. 
While the Federal regulations at 30 CFR 800.21, governing collateral 
bonds, do not specifically provide for the use of insurance policies, 
we find that these policies present no greater risks than those 
inherent in other forms of collateral bonding. Therefore, we conclude 
that the addition of life insurance policies as collateral bonds to 
Section 4(d) will not render the Pennsylvania program less effective 
than 30 CFR 800.21 in meeting the bonding requirements of Section 509

[[Page 25474]]

of SMCRA, and this addition is hereby approved.
    Section 4(d) also expressly adds annuities and trust funds to the 
list of acceptable collateral bonds. The annuity or trust fund must 
irrevocably name PADEP as beneficiary. The implementing regulations at 
25 Pa. Code 86.158(f) expressly provide additional conditions on the 
use of trust funds and annuities. As is the case with whole life 
insurance policies, there are no specific provisions addressing trust 
funds or annuities in the Federal collateral bonding regulations at 30 
CFR 800.21. However, they are an acceptable form of collateral and, 
with the safeguards included in the State's regulations, trust funds 
and annuities present no greater risks, and are, therefore, no less 
effective than the forms of collateral bonding expressly contained in 
30 CFR 800.21. Therefore, we conclude that the addition of annuities or 
trust funds as types of collateral bond to Section 4(d) will not render 
the Pennsylvania program less effective than 30 CFR 800.21 in meeting 
the bonding requirements of Section 509 of SMCRA, and the addition is 
hereby approved.
    Section 4(d.2) expressly provides for the establishment of 
alternative financial assurance mechanisms including site-specific 
trust funds for the perpetual treatment of post mining discharges. 
Again, while Federal rules do not expressly include site-specific trust 
funds, we have determined that a fund that provides for the perpetual 
treatment of post mining discharges functions as a collateral bond and, 
as such, is no less effective than the Federal regulations regarding 
collateral bonds. Therefore, we are approving Section 4(d.2). For a 
more detailed analysis of site-specific trust funds, please refer to 
our finding below pertaining to 25 Pa. Code 86.158(f).
    Section 4(g) was modified to provide that any person having an 
interest in the bond (including PADEP) may request bond release. While 
the Federal regulations do not explicitly provide for the filing of 
release applications by persons other than the permittee, it is not 
unreasonable to allow such applications, and to grant the request where 
the permittee has met all of the criteria for bond release. Therefore, 
we have determined that this change is no less effective than the 
Federal requirements at 30 CFR 800.40 regarding bond release and we are 
approving it.
    Section 4(g)(1) was modified to provide that operators may receive 
Stage 1 bond release if, among other things, they have provided for the 
treatment of pollutional discharges. While this provision has no 
precise Federal counterpart, it is consistent with Section 519(b) of 
SMCRA which requires the regulatory authority to evaluate ``whether 
pollution of surface and subsurface water is occurring, the probability 
of continuance of such pollution, and the estimated cost of abating 
such pollution.'' Therefore, we are approving the change to Section 
4(g)(1).
    Section 4(g)(3) was modified to expressly indicate that the 
remaining portion of the bond could be released in whole or part at 
Stage 3 when the operator has completed successfully all mining and 
reclamation activities and has made provisions with PADEP for the sound 
future treatment of any pollutional discharges. That portion of the 
permit required for post-mining water treatment remains under bond as 
part of the provisions for future treatment of any pollutional 
discharges. Therefore, this is a form of partial bond release as 
provided for in 30 CFR 800.40(c) and can be approved.
    Additionally, Pennsylvania's regulations at 25 Pa. Code 86.151(j), 
which provides that release of bonds does not alleviate the operator's 
responsibility to treat discharges of mine drainage emanating from, or 
hydrologically connected to, the site to the standards in the permit, 
PASMCRA, the Clean Stream Law, the Federal Water Pollution Control Act 
(or Clean Water Act) and the rules and regulations thereunder, provides 
guidance as to what qualifies as sound future treatment.
    Section 4(g)(3) was also amended by deleting bond release language 
applicable to noncoal surface mining operations. Since SMCRA contains 
no counterpart to this language, the deletion of the language does not 
render the Pennsylvania program inconsistent with SMCRA or the 
implementing Federal regulations.
    For the above noted reasons, we are approving the amendments to 
Section 4(g)(3).
    Sections 4(g.1), (g.2), and (g.3). These new sections pertain to 
Stage 2 bond release at sites with pollutional discharges, and bond 
release at sites with ``minimal-impact post-mining discharges.'' In its 
letter of December 23, 2003, Pennsylvania requested that we remove 
these sections from this program amendment, because its definition of 
``minimal impact postmining discharges'' and the regulations for 
postmining discharges were not included in the proposed program 
amendment. We are hereby granting that request; therefore, we will take 
no further action in this rulemaking with respect to proposed Sections 
4(g.1), (g.2), and (g.3).
    Section 4(h) is amended to require that in the event of bond 
forfeiture, payment of the forfeited bond must be made to PADEP within 
30 days of notice of forfeiture, with the bond then being held in 
escrow with any interest accruing to PADEP pending resolution of any 
appeals. If any portion of the bond is determined by a court to have 
been improperly forfeited, the interest accruing proportionately to 
that amount shall be returned to the surety. While neither SMCRA nor 
the Federal regulations provide specifically for the return of funds to 
the surety in the event that a court decides that the regulatory 
authority was not entitled to the entire amount of the bond, we find 
this provision to be consistent with the Federal regulation at 30 CFR 
800.50(d)(2) which requires the return of the portion of the bond in 
excess of that needed for reclamation. Section 4(h) is also amended to 
allow for surety reclamation of a site in lieu of paying the bond 
amount to PADEP. This portion of the amendment is no less effective 
than the Federal regulations governing surety reclamation at 30 CFR 
800.50(a)(2)(ii). For these reasons, we are approving the changes to 
Section 4(h).
    Section 4.2(f) was modified to include provisions for restoration 
or replacement of water supplies affected by surface mining activities. 
Formerly, this section only required surface mine operators to restore 
or replace water supplies they affect. Subsection (f)(1) now requires 
that, in addition to surface mine operators, any person engaged in 
government financed reclamation must restore or replace a water supply 
when they adversely affect the supply. Section 528 of SMCRA provides 
that the requirements of the Act are not applicable to sites where coal 
removal is part of government financed construction. Therefore, that 
portion of Pennsylvania's statute requiring restoration or replacement 
of water supplies by persons engaged in government financed reclamation 
is more stringent than the Federal provisions and we are approving 
these provisions as it applies to persons engaged in government 
financed reclamation.
    Section 4.2(f)(1) also provides that adversely affected water 
supplies must be replaced with an alternate source of water adequate in 
quantity and quality for the purposes served by the supply. This 
language is no less stringent than the Federal statutory provisions 
contained in sections 717(b) of SMCRA that requires a surface coal mine

[[Page 25475]]

operator to replace a water supply that has been affected by surface 
coal mine operations. Therefore, it can be approved even though it 
lacks the specificity contained in the Federal regulations at 30 CFR 
701.5, which define the term, ``replacement of water supply,'' to 
include the provision of water supply on both a temporary and permanent 
basis equivalent to premining quality and quantity. Pennsylvania's 
implementing regulation to this statutory provision is addressed later 
in this rulemaking (see 25 Pa. Code 87.119 and 88.107 below).
    Section 4.2(f)(2) provides that a surface mine operator or mine 
owner is responsible without proof of fault, negligence or causation 
for all pollution, except bacterial contamination, and diminution of 
public or private water supplies within 1000 linear feet of the 
boundaries of the areas bonded and affected by coal mining operations, 
areas of overburden removal, and storage and support areas except for 
haul and access roads. This section also provides for five defenses to 
the presumption of liability: (1) The mine operator or owner was denied 
access to conduct a pre-mining water supply survey; (2) the water 
supply is not within 1,000 linear feet of the boundaries of the areas 
bonded and affected by coal mining operations, overburden removal/
storage areas and support areas [excluding haul and access roads]; (3) 
a pre-permit water supply survey shows that the pollution/diminution 
existed prior to the surface mining activities; (4) the pollution/
diminution occurred as a result of some cause other than surface mining 
activities; and, (5) the mine operator or owner was denied access to 
determine the cause of the pollution/diminution or to replace/restore 
the water supply. Neither SMCRA nor the Federal regulations provide for 
a similar presumption. In its amendment submission, Pennsylvania 
indicated that with or without the rebuttable presumption of liability, 
a mine operator is liable for replacing or restoring a water supply 
contaminated or diminished by the operator's surface mining activities. 
We are approving this subsection because it is not inconsistent with 
Section 717(b) of SMCRA and the Federal regulations in that it does not 
diminish an operator's obligation to restore or replace water supplies 
affected by surface mining.
    Section 4.2(f)(3) provides for the immediate replacement of a water 
supply used for potable or domestic purposes when that supply is 
required to protect public health or safety. If an operator has 
appealed or failed to comply with an order issued under this section, 
PADEP may use money from the Surface Mining Conservation and 
Reclamation Fund to restore or replace the affected water supply. The 
section also requires the Secretary of PADEP to recover the costs of 
restoration or replacement from the responsible owners or operators. 
Section 525(c) of SMCRA, 30 CFR 843.16 and 35 Pa. Stat. 7514 (d) 
provide that an appeal of an order does not stay that order unless a 
request for temporary relief is granted. While there is no provision in 
the Federal program expressly allowing an agency to fund the 
restoration/replacement of temporary water supplies, we are approving 
this provision because it is not inconsistent with SMCRA and the 
Federal regulations in ensuring the restoration or replacement of 
affected water supplies and because it holds the operator responsible 
for replacing water supplies affected by coal mining operations through 
a cost recovery action.
    Section 4.2(f)(4) allows an operator or an owner thirty days to 
appeal an order to replace a water supply. This language is no less 
effective than the Federal regulations at 30 CFR 843.16 (implementing 
30 CFR 840.13), which allow a person issued an order to file an appeal 
within 30 days after receiving the order.
    Section 4.2(f)(4) also provides that an order issued under this 
section which is appealed will not be used to block issuance of new 
permits. This provision is no less effective than the Federal 
regulation at 30 CFR 773.14(b)(4), which provides that a regulatory 
authority may issue a provisional permit if an operator is pursuing a 
good faith administrative or judicial appeal contesting the validity of 
a violation.
    Section 4.2(f)(4) also provides that an order to replace an 
affected water supply which is appealed by the operator cannot be used 
to block the release of bonds when a stage of reclamation is completed. 
Pennsylvania's provision allows bond release even though an order to 
restore or replace the water supply remains unabated. Section 519(c)(3) 
of SMCRA and 30 CFR 800.40(c)(3) prohibit the release of the Phase 3 
bond (the final portion of the bond) before the reclamation 
requirements of SMCRA and the permit are fully met. Pennsylvania's 
proposed changes do not specify or limit what stage of bond may be 
released, which we find is less stringent than SMCRA and less effective 
than the Federal regulations. Accordingly, to the extent that these 
changes allow Phase 3 bond release, the changes to Section 4.2(f)(4) 
are not approved and to the extent these changes allow Phase 1 or Phase 
2 bond release after successful completion of the reclamation 
requirements of the applicable Phase, they are approved.
    Section 4.2(f)(5) has been subsequently repealed by Pennsylvania in 
House Bill 393 (see 66 FR 57662, 57664 [November 16, 2001] for OSM's 
approval of Pennsylvania's repeal of this section). Therefore, this 
section is not a part of this rulemaking.
    Section 4.2(f)(6) provides that nothing in this section prevents 
anyone who claims water pollution or diminution of a water supply from 
pursuing any other remedy that may be provided for in law or equity. 
There is no Federal counterpart to this provision. The affected parties 
have the full protection of PASMCRA while they are pursuing other 
remedies. Since the protections of PASMCRA are not affected by this 
subsection, we have determined that this provision is not inconsistent 
with SMCRA or the Federal regulations and we are approving it.
    Section 4.2(f)(7) provides that a surface mining operation 
conducted under a permit issued before the effective date of this Act 
shall not be subject to the provisions of clauses (2), (3), (4), (5), 
and (6) of Section 4.2(f) but shall be subject to clause (1). Because 
Subsection (1) requires the replacement of water supplies, we have 
determined that Section 4.2(f)(7) is no less stringent than Section 
717(b) of SMCRA and we are approving it to the extent noted in our 
discussions above.
    Section 4.2(i) was added to provide access for PADEP and its agents 
to places where surface mining activities are being conducted to 
conduct inspections and take any materials for analysis. This 
provision, in concert with Section 18.9 of PASMCRA, is no less 
effective than the Federal regulations at 30 CFR 840.12(a), which 
provide for right of entry. Therefore, we are approving this section.
    Section 4.6(i) provides bond release requirements for mining of 
previously affected areas. This section was modified in several 
respects. The modifications render this bond release provision the same 
as specified elsewhere in PASMCRA. At Stage 1, up to sixty percent of 
the bond may be released, whereas before it was up to fifty percent. At 
Stage 2, the amount of bond permitted to be released is amended from 
thirty-five percent to ``[a]n additional amount of bond but retaining 
an amount sufficient to cover the cost to the Commonwealth of 
reestablishing vegetation if completed by a third party * * *.'' A 
Stage 2

[[Page 25476]]

release criterion was modified to allow an operator to get such a 
release where it can show, among other things, that it has not caused 
the baseline pollution load of a discharge to be exceeded for a twelve 
month period prior to the date of bond release application and until 
the release is approved. While some of these changes have no precise 
Federal counterparts, they are all consistent with the bond release 
requirements of the Federal regulations at 30 CFR 800.40. Moreover, the 
bond release amount modifications for Stages 1 and 2 are no less 
effective than corresponding portions of the Federal regulations at 30 
CFR 800.40(c)(1) and (c)(2), respectively. Therefore, we are approving 
the changes to this section.
    Section 4.6(j) provides the standards of success for vegetative 
cover as a result of the reclamation of a previously mined site. The 
section was modified to allow PADEP to require a higher standard of 
vegetation success where it determines that such a standard is integral 
to the proposed pollution abatement plan. Pennsylvania's modification 
of this section makes it more stringent than the Federal requirements 
because it allows PADEP to set a higher standard than that contained in 
the Federal regulations at 30 CFR 816.116(a) and (b)(5) if it deems it 
necessary. Therefore, we are approving this section.
    Section 4.7 provides for the anthracite mine operators emergency 
bond fund. This section was modified by Pennsylvania to open the 
emergency bond fund to anthracite surface mine operators. Among other 
things, these amendments will require anthracite surface mine operators 
that are unable to post bond for certain reasons to pay a twenty-five 
cents per ton fee, which is used to reclaim their operations if they 
are subsequently abandoned. No permits may be issued to an anthracite 
operator who does not post an adequate bond until the operator files at 
least $1,000.00 with PADEP and borrows from the emergency bond fund an 
amount sufficient to cover the remainder of the bond obligation.
    Significantly, fees paid by an operator may only be used to secure 
the reclamation obligations of that operator. Thus, the emergency bond 
fund is not an alternative bonding system; rather, it is an adjunct to 
the conventional bonding system for anthracite mining operations. This 
section was formerly approved by OSM, and allowing anthracite surface 
mine operators to use the fund does not make it inconsistent with 
Section 509 of SMCRA, since no permit may be issued without adequate 
bonds being posted, in the form of a loan from the emergency bond fund. 
Therefore, we are approving the amendments to this section.
    Section 4.8 was added to PASMCRA by this amendment. This section 
was submitted separately by PADEP, at our request, in conjunction with 
our review of Pennsylvania's 1997 revisions to its Abandoned Mine Land 
Reclamation (AMLR) Plan. Our decisions on this provision were announced 
in the March 26, 1999, and June 8, 1999, editions of the Federal 
Register (64 FR 14610, 64 FR 30387, respectively). Therefore, this 
section is not a part of this rulemaking.
    Section 4.10 establishes the Remining Operator's Assistance Program 
(ROAP). While this section was not part of Pennsylvania's original 1998 
amendment submission, Pennsylvania requested that it be added in its 
letter to us of April 13, 2004 (Administrative Record No. PA 853.24). 
The ROAP, which is funded by Pennsylvania's Remining Environmental 
Enhancement Fund, will allow PADEP to assist and pay for the 
preparation of applications for licensed mine operators to obtain 
permits for remining abandoned mine land, including land subject to 
bond forfeitures, and coal refuse piles. Section 4.10 also authorized 
the Pennsylvania Environmental Quality Board (EQB) to promulgate 
regulations to expand the ROAP beyond its interim scope, which was 
coextensive with assistance provided under the State's Small Operator 
Assistance Program (SOAP). While Section 4.10 has no Federal 
counterpart, we find that its addition to the Pennsylvania program 
should further the State's goal of promoting the remining and 
subsequent reclamation of previously mined, unreclaimed areas, and will 
not render the program inconsistent with SMCRA or the implementing 
Federal regulations. Therefore, we are approving Section 4.10.
    Section 4.11 authorizes the EQB to promulgate regulations that will 
constitute an interim reclamation and remining program that provides 
incentives and assistance to reclaim abandoned mine lands and lands 
subject to bond forfeiture. PADEP is authorized to expend moneys from 
the Remining Environmental Enhancement Fund for this program. Proposed 
and final regulations must include, without limitation, the following 
elements: Encouragement of reclamation of abandoned mine lands by 
active surface coal mine operators; encouragement of the recovery of 
remaining coal resources on abandoned mine lands and maximization of 
reclamation of such lands; development of an operator qualification 
system; and, encouragement of local government participation in 
abandoned mine land agreements. Section 4.11 requires PADEP to prepare 
an annual report to the environmental committees of the Pennsylvania 
Senate and House of Representatives. The report must include, without 
limitation, the following components: The number and names of operators 
participating in the programs created by Sections 4.8, 4.9, 4.10, 4.12, 
4.13, and 18; the number of acres of reclaimed abandoned mine land, 
reclaimed coal refuse piles, and reclaimed bond forfeiture land; the 
dollar value of this reclamation; recommendations for providing 
additional incentives for reclamation of previously mined areas; and, 
any comments on the annual report submitted by the Mining and 
Reclamation Advisory Board. This section was not part of Pennsylvania's 
original 1998 amendment submission, but Pennsylvania requested that it 
be added in its letter to us of April 13, 2004 (Administrative Record 
No. PA 853.24). While Section 4.11 has no Federal counterpart, we find 
that its addition to the Pennsylvania program should further the 
State's goal of promoting the remining and subsequent reclamation of 
previously mined, unreclaimed areas, and will not render the program 
inconsistent with SMCRA or the implementing Federal regulations. 
Therefore, we are approving Section 4.11.
    Section 4.12 provides for financial guarantees to insure 
reclamation. Pursuant to this section, Pennsylvania has established a 
Remining Financial Assurance Fund to financially assure bonding 
obligations for an operator engaged in remining. The section requires 
the EQB to promulgate regulations providing criteria for operator and 
site eligibility, methods for paying into the fund, the limits of use 
of the fund, and the procedures to follow in the event of bond 
forfeiture. Under this incentives program, PADEP will reserve a portion 
of the financial guarantees special account in the Remining Financial 
Assurance Fund as collateral for reclamation obligations on the 
remining area. Payments cannot be made from the fund until the fund is 
actuarially sound. The special account is funded by an initial deposit 
of $5 Million, as specified in Section 18(a.2) of PASMCRA, which is 
discussed below, and by annual payments from participating operators, 
as set forth in 25 Pa. Code 86.283(a). Operators making such payments 
are excused from the requirement to post a bond with respect to any 
permit for which the payments

[[Page 25477]]

are made. We find that these remining incentives are not inconsistent 
with the provisions of SMCRA, since they do not alter the basic 
Pennsylvania program requirement to secure a bond for surface and 
underground coal mining operations. Therefore, we are approving this 
section except for Section 4.12(b) as noted below.
    Because of Section 4.12(b), which states that payments to the 
Remining Environmental Enhancement Fund will be reserved in a special 
account to be used in case of operator forfeiture and 25 Pa. Code 
86.281(e), as discussed below, which states that ``additional funds 
from the Remining Financial Assurance Fund will be used to complete 
reclamation'' where the actual reclamation cost exceeds the financial 
guarantee amount reserved for a given permit, the remining incentives 
program is a type of alternative bonding system. As we note in our 
discussion below of 25 Pa. Code 86.281(e), neither the statute nor the 
regulations meets OSM's criteria for an alternative bonding system. 
Therefore we are not approving Section 4.12(b) to the extent it creates 
an alternative bonding system.
    Section 4.13 provides for reclamation bond credits. A ``bond 
credit'' may be issued by PADEP to a licensed mine operator as a reward 
for the successful completion of voluntary reclamation of abandoned 
mine lands. The credits may be used against any reclamation bond 
obligation, in combination with surety or collateral bonds, except as 
specified in this section and in the implementing regulations at 25 Pa. 
Code 86.291-86.295. Credits will not be issued to operators who fail to 
successfully complete the reclamation as set forth in the voluntary 
reclamation agreements. Credits also may not be issued to operators if 
the operators, entities directed or controlled by the operators, or 
entities the operator directs or controls bear any Federal or State 
reclamation responsibilities for an area proposed to be reclaimed. Bond 
credit amounts will be underwritten solely with funds from the Remining 
Financial Assurance Fund established in Section 18(a) of PASMCRA, which 
is discussed below. The bond credit program is not an alternative 
bonding system, because PADEP is not obligated to expend more than the 
permit-specific bond credit amount reserved from the Remining Financial 
Assurance Fund in the event of forfeiture. Therefore, the program is 
essentially an adjunct to the State's conventional bonding system. 
While there is no Federal counterpart to this provision, we find that 
the allowance of financially guaranteed bond credits within a 
conventional bonding system does not render the Pennsylvania program 
less stringent than Section 509 of SMCRA, so long as all applicable 
bonding requirements contained in the State counterparts to Section 509 
and the implementing Federal regulations at 30 CFR part 800 are met. 
For this reason, we are approving Section 4.13.
    Section 18(a) was amended to provide for the Remining Environmental 
Enhancement Fund and the Remining Financial Assurance Fund. These funds 
were created for use in the remining and reclamation incentives created 
by this amendment. Specifically, the Remining Environmental Enhancement 
Fund is to be used to pay the costs of designating areas suitable for 
reclamation by remining, and operating the ROAP created in Section 
4.10. The Remining Financial Assurance Fund is to be used to pay the 
costs of the financial guarantees program created in Section 4.12, and 
the bond credit program created in Section 4.13. Operator 
qualifications for participating in these programs are also set forth 
in Section 18(a.3.) There are no equivalent Federal counterparts to 
these funds. However, because we have found that Sections 4.10, 4.12, 
4.13 and all of those sections' implementing regulations do not render 
the Pennsylvania program inconsistent with SMCRA, we are likewise 
approving the amendments to Section 18(a), including 18(a.1), (a.2) and 
(a.3). In its April 13, 2004, letter (Administrative Record No. PA 
853.24) to us, PADEP requested the withdrawal of Subsection 18(a.4) 
from the amendment, because the program it creates, pertaining to areas 
designated suitable for reclamation through remining, has not yet been 
developed. Therefore, subsection 18(a.4) is not a part of this 
rulemaking.
    Section 18(f) was amended to allow any licensed mine operator to 
propose reclamation of a bond forfeiture site. There are no Federal 
counterparts to Pennsylvania's licensing procedures and there are no 
restrictions in the Federal regulations on who may propose reclamation 
of a bond forfeiture site. The amended provisions of Section 18(f) are 
not inconsistent with SMCRA or the Federal regulations and therefore we 
are approving them.
    Section 18(g) provides the internal rules for Pennsylvania's Mining 
and Reclamation Advisory Board (Board). This amendment modified rules 
pertaining to conduct of the Board. There is no Federal counterpart for 
this provision. However, this section is not inconsistent with the 
provisions of SMCRA and therefore we are approving it.
    Section 18.7 provides for the Small Operator's Assistance Fund. 
This section was modified to limit Pennsylvania's use of SOAP funds to 
those uses authorized by SMCRA and OSM. This provision is not 
inconsistent with Section 507 (c) of SMCRA or the provisions of 30 CFR 
Part 795 and therefore, we are approving it.
    Section 18.9 provides for search warrants. This section was added 
by this amendment and provides the circumstances under which an agent 
of PADEP may apply for a search warrant and the conditions under which 
a warrant may be issued. This section provides that an agent of PADEP 
may apply for a search warrant to examine any property, premise, place, 
building, book, record or other physical evidence or to conduct tests 
and take samples or of seizing books, records or other physical 
evidence. The Federal regulations at 30 CFR 840.12 provide that a 
search warrant is not necessary for inspection of mine operations, 
except that States may require warrants for building searches, nor is a 
warrant necessary to access or copy records required under the State 
program. Under the revised Section 18.9, a warrant is not necessary for 
these activities, but that section gives Pennsylvania the ability to 
secure a warrant if necessary, such as where the permittee refuses to 
allow entry. Additionally, Section 4.2(i) provides full entry 
authorization to employees of PADEP to places where surface mining 
activities are being conducted and also provides the ability to take 
samples of materials for analysis without use of a warrant. For these 
reasons, we have determined that this section is no less effective than 
the Federal regulations at 30 CFR 840.12(b) and we are approving it.
    Section 18.10 was added to PASMCRA to indicate that it shall not be 
construed to violate any of the requirements of the Clean Water Act of 
1977 or SMCRA. This provision is not inconsistent with SMCRA and 
therefore, we are approving it.

Pennsylvania's Regulations

    25 Pa. Code 86.142 Definitions. Pennsylvania added definitions of 
the terms, ``annuity,'' ``trustee,'' and ``trust fund.'' ``Annuity'' is 
a ``financial instrument which provides a sum payable periodically over 
a length of time.'' ``Trustee'' is ``[o]ne in whom some estate, 
interest or power in or affecting property of any description is vested 
for the benefit of another.'' ``Trust fund'' is a ``fund held by a 
trustee which provides moneys to address specific reclamation or

[[Page 25478]]

pollution abatement requirements, or both, associated with a mining 
activity.'' Pennsylvania noted that these terms define new bonding 
instruments for bonding of surface coal mining operations. While there 
are no comparable instruments specifically provided for in SMCRA or the 
Federal regulations, we are approving the addition of trust funds and 
life insurance policies for use as collateral bonding instruments. The 
reasons for the approval are more fully set forth in our findings above 
with respect to PASMCRA Sections 4(d) and 4(d.2), and below at 25 Pa. 
Code 86.158(e) and (f).
    25 Pa. Code 86.151(b). This subsection was modified to add coal 
preparation plants to the list of operations for which the bond 
liability period is specified. We are approving this section with the 
understanding that the period of liability for water pollution will be 
no less than that required by the Federal regulations at 30 CFR 800.13.
    25 Pa. Code 86.151(c). This subsection was modified to clarify the 
liability provisions for water pollution from coal refuse disposal 
activities. We are approving this subsection with the same 
understanding as noted in 25 Pa. Code 86.151(b).
    25 Pa. Code 86.151(j). This subsection was added to make it clear 
that an operator's responsibility to treat discharges is not affected 
by the release of bond. While this provision has no Federal 
counterpart, we are approving it pursuant to Section 505(b) of SMCRA, 
which states that more stringent environmental control and regulation 
of surface coal mining operations than is provided for by SMCRA or the 
Federal regulations will not be construed to be inconsistent with the 
Act.
    25 Pa. Code 86.152. This section provides for bond adjustments 
under the Pennsylvania program. In the amendment, Pennsylvania added a 
phrase to Subsection (a) that makes it clear that PADEP may require 
additional bonding if the cost of reclamation, restoration or abatement 
work increases so that an additional amount of bond is necessary. 
Additionally, Pennsylvania added a phrase to Subsection (b) that 
clarifies that a permittee may request a reduction of the required bond 
amount if the estimated cost to PADEP to complete restoration or 
abatement responsibilities is reduced.
    Pennsylvania subsequently proposed to modify 25 Pa. Code 86.152(a) 
as part of the changes made in response to our review of its subsidence 
control regulations. We approved those proposed changes in our December 
9, 2004, final rule (69 FR 71528, 71534). The change we approved in the 
December 9, 2004, final rule eliminates the language change to 
Subsection (a) that Pennsylvania proposed in its December 18, 1998, 
submission. Therefore, subsection 86.152(a) is not a part of this 
rulemaking. Please see the December 9, 2004, final rule for more 
information on the changes made to 25 Pa. Code 86.152(a).
    The changes Pennsylvania proposed at 25 Pa. Code 86.152(b) are no 
less effective than the bond adjustment requirements of 30 CFR 
800.15(c) which provide that a permittee may request reduction of the 
amount of bond on submission of evidence to the regulatory authority 
proving that the permittee's method of operation or other circumstances 
reduces the estimated cost for the regulatory authority to reclaim the 
bonded area. Therefore, we are approving the changes to 25 Pa. Code 
86.152(b).
    25 Pa. Code 86.156(b). This section, which requires financial or 
other institutions to notify PADEP of bankruptcy of the institution or 
permittee, was expanded to include the new types of collateral bonds 
allowed by the amendments to PASMCRA (e.g., annuities, trust funds, 
life or property and casualty insurance). This section contains the 
same requirements as 30 CFR 800.16(e)(1). The addition of 
Pennsylvania's new bonding instruments to the notification requirements 
does not make those requirements any less effective than the 
requirements in the Federal counterpart and therefore we are approving 
it.
    25 Pa. Code 86.157. Pennsylvania made two changes to this section, 
which provides terms and conditions for surety bonds. The first change 
was made to Subsection (3) which now provides that PADEP will not 
accept a single bond from a surety company for a permittee if the 
single bond is in excess of the surety company's maximum single risk 
exposure. Pennsylvania added the phrase, ``* * * from a surety company 
for a permittee if the single bond * * * '' Pennsylvania also replaced 
a requirement that PADEP not accept a bond in excess of the surety's 
maximum single obligation unless the surety company satisfies the law 
exceeding that limit and replaced it with the requirement that PADEP 
not accept a bond that exceeds the surety company's maximum single risk 
exposure. While the provisions of 25 Pa. Code 86.157(3) have no 
specific Federal counterpart, we find that the provisions are not 
inconsistent with Section 509 of SMCRA or the bonding regulations at 30 
CFR part 800. Therefore, we are approving this subsection.
    The second change Pennsylvania made to this section was to delete 
former Subsection (4). This requirement provided that PADEP will not 
accept surety bonds from a surety company for any permittee on all 
permits held by that permittee in excess of three times the company's 
maximum single obligation. The provisions of former Section 25 Pa. Code 
86.157(4) have no Federal counterpart. Therefore, we have determined 
that deleting that provision will not make the Pennsylvania program 
inconsistent with SMCRA and as a result we are approving its deletion.
    Finally, Pennsylvania modified Subsection (8), formerly known as 
Subsection (9). This subsection allows a surety the option, subject to 
approval of PADEP, to perform reclamation under the bond after 
forfeiture, in lieu of paying the bond amount. The amendment provides 
that a surety that wishes to avail itself of this option must so notify 
PADEP within 30 days of receiving the notice of forfeiture, or PADEP 
may proceed to collect the bond. While this amendment has no specific 
Federal counterpart, we find that it is consistent with the Federal 
regulations at 30 CFR 800.50(a)(2)(ii), and it is therefore approved.
    25 Pa. Code 86.158. Pennsylvania made three changes to this section 
which provides terms and conditions for collateral bonds. In Subsection 
(c)(6), Pennsylvania previously required that PADEP accept certificates 
of deposit from banks or banking institutions licensed or chartered to 
do business in Pennsylvania. Pennsylvania is now expressly allowing 
certificates of deposit from banks or banking institutions licensed or 
charted in the United States. There is no Federal counterpart to this 
requirement and we have determined that the change will not make this 
section inconsistent with SMCRA, or with the Federal regulations at 30 
CFR 800.21. Therefore, we are approving it.
    The second change Pennsylvania made to 25 Pa. Code 86.158 adds 
Subsection (e), which provides the requirements for the use of life 
insurance policies as collateral bonds. Among other things, Subsection 
(e) requires the policy to be fully paid, with a cash surrender value 
at least equal to the amount of the required bond. The policy must be 
irrevocably assigned to PADEP, and cannot be borrowed against or used 
for any purpose, nor may it bear any existing liens, loans or 
encumbrances at the time it is assigned to PADEP. While the Federal 
regulations at 30 CFR 800.21, governing collateral bonds, do not 
specifically provide for the use of insurance policies, we find

[[Page 25479]]

that these policies present no greater risks than those inherent in 
other forms of collateral bonding. Therefore, we conclude that the 
addition of Subsection (e) will not render the Pennsylvania program 
less effective than 30 CFR 800.21 in meeting the bonding requirements 
of Section 509 of SMCRA, and the subsection is hereby approved.
    The third change Pennsylvania made to 25 Pa. Code 86.158 adds 
Subsection (f), which expressly provides the requirements for the use 
of annuities or trust funds as collateral bonds. Among other things, 
this subsection requires that the trust fund or annuity be in an amount 
determined by PADEP to be sufficient to meet the bonding requirements 
for the permittee. The trust fund or annuity must irrevocably establish 
PADEP as its beneficiary. Any financial institution serving as the 
trustee or issuing the annuity must be a State-chartered or National 
bank or other financial institution with trust powers, or a trust 
company with offices in Pennsylvania and examined or regulated by a 
State or Federal agency. An insurance company issuing an annuity shall 
be licensed or authorized to do business in Pennsylvania or shall be 
designated by the Insurance Commissioner as an eligible surplus lines 
insurer. Trust funds and annuities shall be the property of the 
Commonwealth of Pennsylvania. Termination of the trust fund or annuity, 
or release of any funds from either instrument to the permittee may 
occur only if permitted by PADEP. As is the case with whole life 
insurance policies, there are no specific provisions for trust funds or 
annuities in the Federal collateral bonding regulations at 30 CFR 
800.21. However, with the safeguards included in the State's provision, 
it appears that trust funds and annuities present no greater risks than 
those inherent in those forms of collateral bonding expressly named in 
30 CFR 800.21. Therefore, we conclude that the addition of Subsection 
(f) will not render the Pennsylvania program less effective than 30 CFR 
800.21 in meeting the bonding requirements of Section 509 of SMCRA, and 
the subsection is hereby approved.
    25 Pa. Code 86.161. Pennsylvania made one change to this section, 
which provides the requirements for phased deposits of collateral for 
long term operations or facilities. Pennsylvania added a sentence to 
the end of Subsection (3), which expressly allows interest accumulated 
by phased deposits of collateral to become part of the bond, and to use 
the interest to reduce the amount of the final phased deposit. While 
this provision has no precise Federal counterpart, it is consistent 
with 30 CFR 800.21(d)(2), which provides that interest paid on a cash 
account shall be applied to the bond value of the account. Also, the 
addition of this requirement does not make this section less effective 
than the provisions of 30 CFR 800.17 relating to bonding of long term 
facilities and structures. Therefore, we are approving the amendment to 
this section.
    25 Pa. Code 86.168. This section provides the terms and conditions 
for liability insurance. Pennsylvania made several changes to this 
section. Among the proposed changes are the following requirements: the 
permittee must submit proof of liability insurance before a surface 
coal mining license is issued; the insurance must be written on an 
occurrence basis, and provide protection against bodily, rather than 
personal, injury; the limits of the rider for protection against 
explosives must be at least equivalent to the general liability limits 
of the policy; notification of any substantive policy changes must be 
made 30 days in advance; the minimum bodily injury and property damage 
coverages are increased from $300,000 to $500,000 per person and $1 
million aggregate; and, that failure to maintain insurance will result 
in issuance of a notice of intent to suspend the license or permit, 
followed by 30 days opportunity to submit proof of coverage prior to 
suspension, rather than issuance of a notice of violation. The changes 
do not make this section any less effective than the Federal provisions 
of 30 CFR 800.60. Therefore, we are approving the changes to this 
section.
    25 Pa. Code 86.171. This section provides procedures for seeking 
bond release. Pennsylvania's change to this section requires operators 
to include in the advertisement of bond release application whether any 
postmining pollutional discharges have occurred and requires a 
description of the type of treatment provided for the discharges. 
Pennsylvania also changed this regulation to reflect the requirement in 
PASMCRA that a person other than the permittee may apply for bond 
release, and that PADEP may release the bond after such an application 
if all release requirements are met. The changes to the bond release 
advertisement will ensure that a complete description of the minesite 
is available to the public for comment. While the Federal regulations 
do not explicitly provide for the filing of release applications by 
persons other than the permittee, it is not unreasonable to allow such 
applications, and to grant the request where the permittee has met all 
of the criteria for bond release. Therefore, we have determined that 
these changes are no less effective than the Federal requirements at 30 
CFR 800.40 regarding bond release and we are approving them.
    25 Pa. Code 86.174. This regulation provides the standards for 
release of bonds. In Subsection (a), the word ``and'' was changed to 
``or,'' and consequently stated that Stage 1 bond release standards 
were met when, among other things, ``the entire permit area or a permit 
area has been backfilled or graded to the approximate original contour 
* * *.'' Because the Federal regulations at 30 CFR 800.40 require that 
backfilling and grading occur prior to the granting of a Stage 1 
release, OSM asked Pennsylvania to explain the reason for the change 
from ``and'' to ``or'' (Administrative Record No. PA 853.17). PADEP 
responded that the change was made in error, and that a corrective 
amendment was published in the January 17, 2004, Pennsylvania bulletin. 
The change to Subsection (d) merely clarifies the point that the bond 
release standards contained therein are in addition to the release 
standards contained in subsections (a), (b), and (c) of this section. 
We find that the change to Subsection (d) does not render 25 Pa. Code 
86.174 less effective than the Federal regulations at 30 CFR 800.40, 
and we are therefore approving it.
    25 Pa. Code 86.175. This regulation provides standards for release 
of bonds. Under Subsection (a), Pennsylvania has replaced a general 
reference to the provisions permittees must comply with to secure bond 
release with the specific sections of the regulations permittees must 
comply with. In Subsection (b)(3), Pennsylvania removed language that 
indicated amount of bonds remaining at Stage 3 may be released after 
final inspection and procedures of 25 Pa. Code 86.171 (relating to 
procedures for seeking release of bond) have been satisfied.
    We have found that Pennsylvania has clarified its program by adding 
the specific sections of the regulations for operator compliance to 
Subsection (a). Since the referenced regulatory sections are the 
approved Pennsylvania bond release provisions, the references to them 
do not render this section less effective than the Federal regulations 
and we are approving it. Additionally, we have found that the removal 
of the language from Subsection (b)(3) does not make the release of 
Stage 3 bonds less effective than the requirements at 30 CFR 
800.40(c)(3). Therefore, we are approving these changes.
    25 Pa. Code 86.182. This regulation provides procedures for bond

[[Page 25480]]

forfeitures. Pennsylvania added new subsections (a)(3) and (d) and 
renumbered some existing subsections. Pennsylvania added the new 
subsections to provide requirements for surety reclamation of 
forfeiture sites. Subsection (a)(3) requires that if forfeiture of the 
bond is necessary, PADEP must notify the surety to pay the amount of 
the forfeited bond to PADEP. The money is to be held in escrow with any 
interest accruing to PADEP pending resolution of any appeals. If a 
court decides the Commonwealth is not entitled to either a portion of, 
or the entire amount forfeited, the interest shall accrue 
proportionately to the surety in the amount determined to be improperly 
forfeited. Subsection (d) provides that a surety may reclaim the 
forfeited sites in lieu of paying the amount of the forfeited bond. 
This section provides time frames for the surety to notify PADEP of its 
intentions and requires the surety to enter into a consent order and 
agreement with PADEP if it approves the surety's proposal for 
reclamation.
    While the new Subsection (a)(3), requiring the return of funds to 
the surety in the event that a court decides that PADEP was not 
entitled to the entire amount of the bond, has no direct Federal 
counterpart, we find that it is consistent with the provision at 30 CFR 
800.50(d)(2) which requires the return of bond in excess of that needed 
for reclamation. The new Subsection (d) is no less effective than the 
Federal regulations governing surety reclamation at 30 CFR 
800.50(a)(2)(ii). Therefore, we are approving the amendments to Section 
86.182.
    25 Pa. Code 86.195. This section of the regulations provides for 
civil penalties against corporate officers. In Subsection (b), a cross 
reference was revised from 25 Pa. Code 87.14 to 25 Pa. Code 86.353 
(relating to identification of ownership). This change clarifies the 
intent of PADEP to serve notice of orders for failing to abate 
violations to each corporate officer listed in the surface mine 
operator's license application. We have determined that this section is 
no less effective than the requirements of 30 CFR 843.11(g) which 
provides for notification of corporate officers of the issuance of 
cessation orders. Therefore, we are approving this section.
    25 Pa. Code 86.251-253, 86.261-270, and 86.281-284. These 
regulations under Subchapter J, Remining and Reclamation Incentives, 
were added by Pennsylvania to provide incentives for active coal mine 
operators to conduct remining and reclamation of abandoned mine lands 
and bond forfeiture sites by assisting the operators in meeting their 
obligation to bond these activities. Sections 86.251-86.253 provide 
definitions of terms used in the programs, the qualifications for 
operators to participate in the program, and the qualifications for 
eligibility of projects.
    In 25 Pa. Code 86.261-86.270, Pennsylvania has established a 
Remining Operator Assistance Program (ROAP). While these sections were 
not part of Pennsylvania's original 1998 amendment submission, 
Pennsylvania requested that they be added in its letter to us of April 
13, 2004 (Administrative Record No. PA 853.24). In the ROAP, which is 
funded by Pennsylvania's Remining Environmental Enhancement Fund, 
Pennsylvania will assist operators in preparing applications for 
remining an area by paying consultants to describe existing resources 
that could be affected by the remining activities, determine the 
probable hydrologic consequences on the proposed remining area and the 
adjacent area, prepare a detailed description of the proposed remining 
activities, and collect and provide general hydrologic information on 
the watershed areas. The regulations provide for a description of 
program services, criteria for an operator's eligibility for 
participation in the program, PADEP responsibilities, criteria for 
operator's eligibility for assistance, requirements for applications 
for assistance, provisions for application approval, notice of approval 
or denial, requirements for data collection, public records, basic 
qualifications for consultants and laboratories, and circumstances 
under which an operator must reimburse Pennsylvania for the cost of the 
services performed. While these provisions have no Federal 
counterparts, we find that their addition to the Pennsylvania program 
should further the State's goal of promoting the remining and 
subsequent reclamation of previously mined, unreclaimed areas, and will 
not render the program inconsistent with SMCRA or the implementing 
Federal regulations.
    In 25 Pa. Code 86.281-86.284, Pennsylvania has established a 
Remining Financial Assurance Fund to financially assure bonding 
obligations for an operator engaged in remining. The section provides 
the requirements for an operator's participation, the limits of use of 
the fund, and the procedures to be followed in the event of bond 
forfeiture. Under this incentives program, PADEP will reserve a portion 
of the financial guarantees special account in the Remining Financial 
Assurance Fund as collateral for reclamation obligations on the 
remining area. The reserved amount will be the average cost per acre 
for PADEP to reclaim a mine site multiplied by the number of acres in 
the remining area. The special account is funded by an initial deposit 
of $5 million, as specified in Section 18(a.2) of PASMCRA, which is 
discussed above, and by annual payments from participating operators, 
as set forth in Section 86.283(a). Operators may not substitute these 
financial guarantees for existing collateral or surety bonds. Operators 
approved to participate in the financial guarantees program are not 
required to pay Pennsylvania's per acre reclamation fee required by 25 
Pa. Code 86.17(e) for the remining area. Released bond amounts from a 
financial guarantee may not be used to cover reclamation obligations on 
another section of a permit.
    We have found that these remining incentives are not inconsistent 
with the provisions of SMCRA. The basic Pennsylvania program 
requirement to secure a bond for surface and underground coal mining 
operations has not been altered by these incentives. As a result we are 
approving sections 86.251-86.253 (with the following explanation for 
the definition of ``remining area'' at 25 Pa. Code 86.252), 86.261-270, 
and 86.281-86.284, except for 25 Pa. Code 86.281(e).
    Pennsylvania defines ``remining area,'' at 25 Pa. Code 86.252, as 
``[a]n area of land on which remining will take place, including that 
amount of previously undisturbed area up to 300 feet from the edge of 
the unreclaimed area which must be affected to achieve a final grade 
compatible with adjacent areas. Additional undisturbed land may be 
within a remining area if the permittee demonstrates that a larger area 
is needed to accomplish backfilling and grading of the unreclaimed area 
or is needed for support activities for the remining activity. 
(Emphasis added) In its April 6, 2000 letter to PADEP, OSM stated this 
concern with the underlined language:

    As long as this definition applies only to the incentives 
provisions enacted at Section 4.12 of the statute, and 25 Pa. Code 
Sec. Sec.  86.251-86.284, it is not inconsistent with the Federal 
regulations at 30 CFR Sec.  816.102. However, it may be inconsistent 
with this Federal provision if it allows previously unmined areas to 
be backfilled and graded only in accordance with standards 
applicable to previously mined areas * * * What reclamation 
standards apply on the margin area? (Administrative Record No. PA 
853.17).

    PADEP responded to OSM's concerns by stating that the 300 feet or 
greater ``margin area'' is solely a financial

[[Page 25481]]

incentive for an applicant to consider remining an abandoned mine area. 
According to PADEP, all normal permitting requirements and performance 
standards, including backfilling, regrading and revegetation 
provisions, still apply to the ``margin area.'' With this clarification 
in hand, we find that the definition of ``remining area'' in 25 Pa. 
Code 86.252 does not render the Pennsylvania program less effective 
than the Federal regulations at 30 CFR 816.102, and we are therefore 
approving it.
    25 Pa. Code 86.281(e) provides that on declaration of forfeiture 
``additional funds from the Remining Financial Assurance Fund will be 
used to complete reclamation'' where the actual reclamation cost 
exceeds the financial guarantee amount reserved for a given permit. 
This appears to present, as part of a remining incentives program, a 
type of alternative bonding system (ABS). An ABS can be approved under 
30 CFR 800.11(e) if two objectives are met: (1) The ABS must assure 
that the regulatory authority will have available sufficient money to 
complete the reclamation plan for any areas which may be in default at 
any time, and (2) the ABS must provide a substantial economic incentive 
for the permittee to comply with all reclamation provisions. With 
regard to participation in the Remining Financial Assurance Fund as 
envisioned under 25 Pa. Code 86.281, Pennsylvania's regulations fail 
the second objective because the program does not provide any economic 
incentives for permittees to comply with all reclamation provisions. 
While the statute and regulations provide numerous qualifying criteria 
for operators to enter the program, once approved for the program there 
are no criteria for removal from the program nor any other incentive to 
ensure that operators comply with all reclamation provisions. As a 
result, this portion of 25 Pa. Code 86.281(e) is less effective than 
the Federal regulations regarding an ABS and we are not approving the 
last sentence which states, ``If the actual cost of reclamation by the 
Department exceeds the amount reserved, additional funds from the 
Remining Financial Assurance Fund will be used to complete 
reclamation.''
    With removal of the last sentence of 25 Pa. Code 86.281(e), the 
remainder of the regulation provides that on declaration of forfeiture, 
reserved funds will be used by PADEP to complete reclamation of the 
remining area in accordance with the procedures and criteria in 25 Pa. 
Code 86.187-86.190. The regulations at 25 Pa. Code 86.187-86.190 
provide procedures to be followed in the case of bond forfeiture and 
require, among other things, that moneys received from the forfeiture 
will be used only for reclamation and water supply restoration affected 
by the bonded operation. Thus, without the last sentence, 25 Pa. Code 
86.281(e) presents the Remining Financial Assurance Fund as a 
conventional bond. Our disapproval of the last sentence of 25 Pa. Code 
86.281(e) renders the remainder of the regulation no less effective 
than the Federal regulations regarding bonding and therefore, we are 
approving it.
    25 Pa. Code 86.291-86.295. These regulations contain the procedures 
for the use of an account in the Remining Financial Assurance Fund to 
financially assure bond obligations of an operator who has voluntarily 
completed a reclamation project approved by PADEP under the bond credit 
program. The regulations govern financial assurance for bond credit-
general (86.291), bond credit application procedures and requirements, 
and operator qualifications (86.292), bond credit issuance (86.293), 
bond credit uses and limitations (86.294), and forfeiture (86.295). A 
``bond credit'' will be issued to a qualified operator from the bond 
credit special account in the Remining Financial Assurance Fund. The 
credit amount reserved will be the lesser of the operator's or PADEP's 
cost of reclamation of the abandoned mine lands to be reclaimed under 
the agreement. The operator may apply the bond credit to an original or 
additional bond for a permit for surface or underground coal mining 
operations. Bond credits or parts thereof may be used on single or 
multiple permits, and may be used two times. However, the second use of 
the credit may not commence until the credit is released from its first 
use. Bond credits may not be used to bond water loss or long-term water 
treatment. Bond credits will be released prior to any other bond 
release on a permit area. Credits not used within 5 years of issuance 
will expire. Forfeited bond credit reserved amounts will be used to 
complete reclamation of the mine site. For a more detailed discussion 
of the ``bond credit'' concept, please see the finding for Section 4.13 
of PASMCRA. As we noted with our finding on the statute, there are no 
Federal counterparts to these regulations and we find that the 
allowance of financially guaranteed bond credits within a conventional 
bonding system does not render the Pennsylvania program less stringent 
than Section 509 of SMCRA, so long as all applicable bonding 
requirements contained in the State counterparts to Section 509 and the 
implementing Federal regulations at 30 CFR part 800 are met. Therefore, 
we are approving these regulations.
    25 Pa. Code 86.351-86.359 (formerly 87.12-87.21). These regulations 
were revised by Pennsylvania to require all coal mine operators to 
obtain a mine operator's license. In its program amendment submittal, 
Pennsylvania indicated that because of revisions to PASMCRA that 
require anyone mining coal to secure a license (formerly, only surface 
coal mine operators were required to be licensed), it moved the 
requirements for a mine operator's license from Chapter 87 Surface 
Mining of Coal to Chapter 86 Surface and Underground Coal Mining: 
General. Pennsylvania further noted that when moving these regulations 
to Chapter 86, it made minor changes in wording and punctuation for 
clarity. Most of these minor changes were necessary to render the 
licensing requirements applicable to all coal mining operations. In 
addition, the following substantive changes were made.
    25 Pa. Code 86.353 (formerly 87.14). This regulation was amended to 
delete the requirement that license applications provide information 
pertaining to ``persons owning or controlling the coal to be mined 
under the proposed permit under a lease, sublease or other contract, 
and having the right to receive the coal after mining or having 
authority to determine the manner in which the proposed surface mining 
activity is to be conducted.''
    25 Pa. Code 86.355 (formerly 87.17). The regulation was amended to 
require PADEP to deny a license, renewal or amendment to an applicant 
where:

[t]he applicant has a partner, associate, officer, parent 
corporation, subsidiary corporation, contractor or subcontractor 
which has shown a lack of ability or intention to comply with an 
adjudicated proceeding, cessation order, consent order and agreement 
or decree, or as indicated by a written notice from the Department 
of a declaration of forfeiture of a person's bonds.

    25 Pa. Code 86.358 (formerly 87.20). This regulation was amended by 
deleting failure to comply with a notice of violation as a basis upon 
which PADEP may suspend or revoke a license, and by adding failure to 
maintain public liability insurance as a permissible basis for license 
suspension or revocation.
    Finally, Section 86.359 (formerly 87.21) was amended to provide for 
varying licensing fee amounts, depending on the tonnage of marketable 
coal per year.

[[Page 25482]]

    As part of the license application, operators must provide 
information on: Identification of ownership, public liability 
insurance, and compliance information. These regulations provide the 
requirements for submitting a license application and criteria for 
approval of mining licenses. Section 86.355 was revised to make the 
criteria for approval of licenses applicable to license amendments.
    The Federal regulations do not require mine operators to be 
licensed. However, many of the reporting requirements of Pennsylvania's 
license application are required by the Federal regulations (e.g., 
ownership and compliance information and liability insurance 
requirements). As Pennsylvania noted, OSM had previously approved these 
requirements when they were part of Chapter 87. By moving these 
requirements to Chapter 86, with only minor changes, Pennsylvania has 
made it clear that these requirements apply to all those who mine coal 
in the State. As such, the revisions do not render these regulations 
inconsistent with SMCRA or the implementing regulations; therefore, we 
are approving them.
    25 Pa. Code Chapter 87.1 and 88.1 Definitions of ``de minimis cost 
increase,'' ``water supply,'' and ``water supply survey.'' Pennsylvania 
has added these definitions to its program. The term ``de minimis cost 
increase'' was added to define requirements of 25 Pa. Code 87.119 
related to water supply replacement for water supplies affected by 
surface coal mining activities and to 25 Pa. Code 88.1 related to water 
supply replacement for water supplies affected by anthracite coal 
mining operations (both underground and surface). This definition is 
the same as the definition of ``de minimis cost increase'' found at 25 
Pa. Code 89.5. When we considered the water supply replacement 
requirements for 25 Pa. Code Chapter 89 relating to water supplies 
affected by underground mining activities, we determined that the 
definition of ``de minimis cost increase'' was not as effective as the 
Federal regulation at 30 CFR 701.5 (definition of the term, 
``replacement of water supply''); because the intent of the Federal 
regulations was to insure that the owner or user of the water supply 
was made whole and that no additional costs were passed on to the water 
supply user. For additional rationale on why we did not approve the 
definition of ``de minimis cost increase'' as it applies to underground 
mining, the December 27, 2001, Federal Register (66 FR 67010, 67029) is 
incorporated by reference. Because the term ``replacement of water 
supply'' at 30 CFR 701.5 applies to water supplies affected by both 
surface and underground coal mining operations, including anthracite 
coal mining operations, we are not approving the definition of ``de 
minimis cost increase'' at 25 Pa. Code 87.1 and 88., as it applies to 
operations subject to SMCRA, for the same reasons that we did not 
approve the definition at 25 Pa. Code 89.5.
    Pennsylvania also added and defined the term, ``water supply'' in 
this amendment to 25 Pa. Code 87.119 related to water supply 
replacement for water supplies affected by surface mining activities 
and to 25 Pa. Code 88.1 related to water supply replacement for water 
supplies affected by anthracite coal mining operations. Pennsylvania 
defined ``water supply'' as an existing or currently designated or 
currently planned source of water or facility or system for the supply 
of water for human consumption or for agricultural, commercial, 
industrial or other uses. Section 717(b) of SMCRA requires an operator 
to replace the water supply of owners who obtain all or part of their 
supply of water for domestic, agricultural, industrial, or other 
legitimate use from an underground or surface source when the supply 
has been affected by surface coal mine operations. As noted above, 
Pennsylvania's anthracite definitions do not distinguish between 
surface and underground coal mining activities. For underground coal 
mining activities, Section 720(b) of SMCRA is more limited than 717(b) 
of SMCRA in that it only requires the replacement of drinking, domestic 
or residential water. Pennsylvania's definition of water supply is as 
inclusive in the types of water supplies that are protected as those in 
717(b) and 720(b) of SMCRA. As a result, we are approving this 
definition in both sections.
    Pennsylvania also defined the term, ``water supply survey.'' Water 
supply survey is defined as the collection of reasonably available 
information for a water supply to establish certain physical 
characteristics of the supply. Pennsylvania only uses this term in its 
regulations at 25 Pa. Code 87.119 and 88.107 with regard to those 
circumstances that operators can rebut the presumption of liability for 
pollution as established in Subsection (b) of those regulations. The 
Federal regulations do not define the term, ``water supply survey.'' 
Since Pennsylvania only uses the term in conjunction with an operator's 
ability to rebut the presumption of liability of pollution, and as we 
stated earlier, rebutting the presumption of liability does not relieve 
operators of liability for replacement or restoration of water supplies 
that were impacted by their mining operations, use of the term does not 
make Pennsylvania's program less effective than the Federal regulations 
and we are approving this definition.
    Finally, in the amendment submission of December 18, 1998, 
Pennsylvania proposed to delete the definition of the term, ``dry 
weather flow'' from 25 Pa. Code 87.1, 88.1, 89.5, and 90.1. However, in 
a letter dated December 23, 2003 (Administrative Record No. PA 853.23), 
Pennsylvania revised the proposed amendment to retain the definition of 
``dry weather flow'' at 25 Pa. Code 87.1 as well as at 25 Pa. Code 
Sections 88.1, 89.5 and 90.1. As a result of Pennsylvania's December 
23, 2003, letter, this rulemaking does not address this definition.
    25 Pa. Code 87.11. Pennsylvania deleted this section which provided 
definitions of the terms, ``owned or controlled or owns or controls,'' 
``principal shareholder,'' and ``surface mining.'' These terms were 
defined in this section for use in Pennsylvania's licensing procedures. 
The definitions of the terms ``owned or controlled or owns or 
controls'' and ``principal shareholder'' are in the regulations at 25 
Pa. Code 86.1. There were some differences in the definitions of 
``owned or controlled or owns or controls'' between 25 Pa. Code 87.11 
and 25 Pa. Code 86.1. We approved the differences to the definition in 
the November 3, 2000, Federal Register (65 FR 66170). Since these terms 
appear elsewhere in the Pennsylvania program and OSM does not require 
the licensing of operators, we are approving their removal from 25 Pa. 
Code 87.11.
    The definition of ``surface mining'' at 25 Pa. Code 87.11 does not 
appear elsewhere in the Pennsylvania program. However it was defined in 
this section only for Pennsylvania's use in licensing procedures. Since 
OSM does not require licensing of operators, we are approving the 
removal of this definition from the program.
    25 Pa. Code 87.12-87.15 and 87.17-87.21. Pennsylvania has deleted 
these regulations which provide the requirements for obtaining a mining 
license from 25 Pa. Code Chapter 87 and moved them to 25 Pa. Code 
Chapter 86 (please see our findings for 25 Pa. Code 86.351-86.359 
above). We are approving the deletion of these regulations from Chapter 
87 for the reasons noted in our findings for 25 Pa. Code 86.351-86.359 
above.
    25 Pa. Code 87.16. In this amendment, Pennsylvania deleted this 
provision which was in place as part of the

[[Page 25483]]

requirements for obtaining a mine operator's license. The compliance 
information provisions of this section are located in 25 Pa. Code 
86.63. Since these provisions appear elsewhere in the Pennsylvania 
program and OSM does not require the licensing of operators, we are 
approving the deletion of 25 Pa. Code 87.16.
    25 Pa. Code 87.102, 87.103, 88.92, 88.93, 88.187, 88.188, 88.292, 
88.293, 89.52, 89.53, 90.102 and 90.103. In the original amendment, 
Pennsylvania proposed to delete these sections from the approved 
program. However, in a letter dated December 23, 2003 (Administrative 
Record No. PA 853.23), Pennsylvania revised its proposed amendment to 
retain these regulations. Therefore, these sections are not addressed 
in this rulemaking.
    25 Pa. Code 87.119, 88.107. Pennsylvania substantially modified 
these sections which provide for the replacement of water supplies 
affected by surface coal mining activities or government financed 
reclamation. Subsection (a) provides for water supply replacement 
obligations and indicates that a water supply affected by the operator 
of any mine or a person engaged in government financed reclamation must 
restore or replace the affected supply with an alternate source 
adequate in water quantity and quality for the purpose served by the 
water supply. Under the Federal regulations at 30 CFR 701.5 defining 
the term, ``replacement of water supply,'' an operator must restore or 
replace an affected water supply, on both a temporary and permanent 
basis with one that is equivalent to premining quantity and quality. 
While Pennsylvania's proposed regulation under Subsection (a) does not 
expressly include temporary replacement of water supplies, it does not 
preclude Pennsylvania from requiring temporary replacement where a 
permanent replacement cannot be readily implemented. To the extent the 
proposed provision would not require temporary replacement of water 
supplies when needed, it is less effective than the Federal rules and 
is not approved. Also, the phrase ``adequate in water quantity and 
quality for the purpose served by the water supply'' differs from the 
Federal phrase ``equivalent to premining quantity and quality.'' To the 
extent the proposed provision would allow the replaced water supply to 
be of a lesser quality and/or quantity than the premining quality and 
quantity, it is less effective than the Federal requirements. 
Therefore, we are not approving Subsection (a) for water supplies 
affected by surface coal mining activities to the extent that it would 
allow the replaced water supply to be of a lesser quantity and quality 
than the premining water supply or would not require temporary 
replacement of water supplies where needed. Otherwise, it is approved.
    Subsection (a)(1) requires that a restored or replaced water supply 
meet the criteria listed in subsections (1)(i) through (iv), which 
talks about reliability, cost, maintenance and control. Subsection (i) 
requires the restored or replaced water supply to be as reliable as the 
previous water supply. Subsection (ii) requires the restored or 
replaced water supply to be as permanent as the previous water supply 
and Subsection (iii) requires the supply to not require excessive 
maintenance. Subsection (iv) requires that the supply provide the owner 
and the user with as much control and accessibility as exercised over 
the previous water supply. This subsection also provides that the use 
of a public water supply as a replacement water supply provides as much 
control and accessibility as the previous supply. We are approving 25 
Pa. Code 87.119(a)(1)(i) through (iv) and 88.107(a)(1)(i) through (iv). 
There are no direct corresponding Federal regulations to these 
sections. We find that these sections are no less effective than the 
requirements found in the definition of the term ``replacement of water 
supply'' in the Federal regulations at 30 CFR 701.5 because they help 
return the water supply to its premining status.
    Subsection (a)(1)(v) provides that to be adequate a restored or 
replaced water supply must not result in more than a de minimis cost 
increase to operate and maintain. As noted earlier in this rulemaking 
(see our finding for 25 Pa. Code 87.1 and 88.1, definition of ``de 
minimis cost increase''), the Director has not approved a ``de minimis 
cost increase.'' Accordingly, we are not approving Subsection (a)(1)(v) 
for the reasons noted above in 25 Pa. Code 87.1 and 88.1, the 
definition of the term ``de minimis cost increase.'' This disapproval 
is only to the extent the rule applies to surface coal mining 
operations.
    Similarly, Subsection (a)(2) provides that operators are only 
required to provide for the permanent payment of increased operating 
and maintenance costs if those costs represent more than a de minimis 
cost increase. We are not approving this section to the extent that it 
limits an operator's obligations by use of the term ``de minimis cost 
increase.''
    Subsection (a)(3) provides that the requirement to restore or 
replace an affected water supply may be waived. The Federal regulations 
regarding restoration or replacement of water supplies at 30 CFR 701.5, 
the definition of the term, ``replacement of water supply,'' indicates 
that replacement requirements may be satisfied by demonstrating that a 
suitable alternative water source is available and could feasibly be 
developed. However this satisfaction of a water supply replacement 
requirement is acceptable only if the affected water supply is not 
needed for the land use in existence at the time it was affected by 
surface mining and the supply is not needed to achieve the postmining 
land use. Pennsylvania's regulation at 25 Pa. Code 87.119(a)(3) allows 
a waiver from the restoration or replacement obligations without 
requiring a demonstration that a suitable alternative water source is 
available and could feasibly be developed. Additionally, this section 
could allow a waiver for water supply replacement under circumstances 
other than those described in the Federal definition of the term, 
``replacement of water supply,'' (i.e., the water supply is not needed 
for the land use in existence at the time it was affected by surface 
mining and the supply is not needed to achieve the postmining land 
use). Therefore, we are not approving 25 Pa. Code 87.119(a)(3) and 
88.107(a)(3) to the extent they would allow a waiver from the 
requirements for replacing a water supply outside the requirements of 
30 CFR 701.5 regarding the definition of the term, ``replacement of 
water supply.''
    Subsections (b), (c) and (d) provide for the presumption of 
liability for pollution. Essentially, Subsection (b) provides that a 
surface mine operator or mine owner is responsible without proof of 
fault, negligence or causation for all pollution, except bacterial 
contamination, and diminution of public or private water supplies 
within 1000 linear feet of the boundaries of the areas bonded and 
affected by coal mining operations except for haul and access roads. 
The operator or owner must affirmatively prove these defenses by a 
preponderance of the evidence. Subsection (c) only allows for five 
defenses to the presumption: (1) The mine operator or owner was denied 
access to conduct a pre-mining water supply survey; (2) the water 
supply is not within 1,000 linear feet of the coal mining operations, 
support areas [excluding haul and access roads] and overburden removal/
storage areas or areas affected by surface mining activities but not 
bonded; (3) a pre-permit water supply survey, that is documented in the 
permit application,

[[Page 25484]]

which shows that the pollution/diminutation [sic] existed prior to the 
surface mining activities; (4) the pollution/diminution occurred as a 
result of some cause other than surface mining activities; and (5) the 
mine operator or owner was denied access to determine the cause of the 
pollution/diminution. Subsection (d) requires the mine operator or 
owner to notify Pennsylvania of the possible defenses, providing all 
information including proof of service to the landowner or water supply 
company that denying access for a survey could rebut the presumption.
    In its amendment submission, Pennsylvania indicated that with or 
without the rebuttable presumption of liability, a mine operator is 
liable for replacing or restoring a water supply contaminated or 
diminished by the operator's surface mining activities. The Federal 
regulations do not provide for a similar presumption and do not 
prohibit Pennsylvania from enacting a rebuttable presumption for water. 
These subsections are not inconsistent with the requirements of SMCRA 
and the Federal regulations because they do not eliminate an operator's 
responsibility under Section 717(b) of SMCRA. If all the pollution or 
diminution existed prior to the start of the coal mining operations, 
then the supply was not affected by the coal mining operations. If 
additional pollution or diminution occurred after the start of the coal 
mining operations, then the operator would become liable for the damage 
caused to the water supply by the coal mining operations. The 
presumptions and the defenses to rebut the presumptions, do not relieve 
the regulatory authority of its initial burden. If the evidence 
demonstrates that a water supply is affected within the presumption 
area, then the operator has the burden to rebut the presumption with 
one of the five defenses. The ultimate burden remains with the 
regulatory authority. Therefore, we are approving subsections (b), (c), 
and (d).
    Subsection (e) allows Pennsylvania to use money from the Surface 
Mining Conservation and Reclamation Fund for the immediate replacement 
of a water supply used for potable or domestic purposes when that 
supply is required to protect public health or safety. This section is 
the implementing regulation for Section 4.2(f)(3) of PASMCRA that we 
discussed above. We are approving this provision for the same reason 
that we are approving Section 4.2(f)(3) of PASMCRA.
    Subsection (f) provides that PADEP will recover costs associated 
with restoration or replacement water supplies from the operator or 
mine owner. There is no similar provision in the Federal regulations. 
We have found that this section is not inconsistent with the 
requirements of SMCRA and the Federal regulations because under SMCRA 
an operator is responsible for replacing a water supply that was 
affected by the mining operations; this is just another means to 
achieving that purpose. Thus we are approving this subsection.
    Subsection (g) provides for operator cost recovery. This section 
provides that if an operator successfully appeals a PADEP order, the 
operator may recover reasonable costs incurred in the appeal. 
Subsection (g) is the implementing regulation for Section 4.2(f)(5) of 
PASMCRA. Section 4.2(f)(5) of PASMCRA was repealed by Pennsylvania in 
House Bill 393 (see 66 FR 57662, 57664 [November 16, 2001] for OSM's 
approval of Pennsylvania's repeal of this section). Because the 
regulations at 25 Pa. Code 87.119(g) and 88.107(g) implement the 
section of the statute that was repealed, there is no statutory 
authority for Subsection (g) of the regulation. Therefore, we are not 
approving the regulations at 25 Pa. Code 87.119(g) and 88.107(g).
    Subsection (h) provides that nothing in this section prevents 
anyone who claims water pollution or diminution of a water supply from 
pursuing any other remedy that may be provided for in law or equity. 
There is no Federal counterpart to this provision. Nonetheless, 
landowners or water supply users have the full protection of Chapters 
87 and 88 even while pursuing other avenues of redress. Since all the 
protections of Chapter 87 and 88 remain available, we have determined 
that this provision is not inconsistent with the requirements of SMCRA 
or the Federal regulations and we are approving it.
    Subsection (i) provides that an order issued under this section 
which is appealed will not be used to block issuance of new permits or 
the release of bonds when a stage of reclamation work is completed. 
This subsection is the implementing regulation for Section 4.2(f)(4) of 
PASMCRA that we discussed above. Please see our findings regarding that 
section of the statute. We are approving 25 Pa. Code 87.119(i) and 
88.107(i) to the extent noted in our discussion on Section 4.2(f)(4) 
and not approving these regulations to the extent noted in that same 
discussion.
    Subsection (j) provides that nothing in this section limits PADEP's 
authority under Section 4.2(f)(1) of PASMCRA. Section 4.2(f)(1) 
provides for the replacement of water supplies. Subsection (j) is not 
inconsistent with SMCRA or the Federal regulations and we are approving 
it.
    Subsection (k) provides that a surface mining operation conducted 
under a permit issued before February 16, 1993, is not subject to 
subsections (b)-(i) but is subject to subsections (a) and (j). Because 
subsections (a) and (j) require the replacement of water supplies, we 
have determined that Subsection (k) is no less effective than the 
Federal regulations and we are approving it to the extent noted in our 
discussions of subsections (a) and (j).
    25 Pa. Code 87.147(b)(1), 88.121(b) and 88.209(b). These 
subsections are the implementing regulations for the amended language 
of Section 4(a)(2)(C) of PASCMRA that we discussed above. As with that 
section, these regulations are no less effective than the ground cover 
revegetation requirements of the Federal regulations at 30 CFR 
816.116(a) and (b)(5). Therefore, we are approving these provisions.
    25 Pa. Code 87.202, the definition of the term, ``best professional 
judgment,'' 25 Pa. Code 87.207(b), 25 Pa. Code 88.502, the definition 
of the term, ``baseline pollution load,'' and 25 Pa. Code 87.207(b). 
These were all proposed for removal. However, in its December 23, 2003 
letter, Pennsylvania informed us that it wishes to retain these 
provisions as part of the approved program. Accordingly, they are not a 
part of this rulemaking.

IV. Summary and Disposition of Comments

Public Comments

    We first asked for public comments on the amendment in the March 
12, 1999, Federal Register (64 FR 12269) (Administrative Record No. PA 
853.07). We reopened the comment period in the July 8, 1999, Federal 
Register (64 FR 36828) and again in the November 24, 2004 Federal 
Register (69 FR 68285). We received public comments from: Amerikohl 
Mining, Inc., dated March 29, 1999 (Administrative Record No. PA 
853.08); the Pennsylvania Coal Association (PCA), dated April 9, 1999 
(Administrative Record No. PA 853.09); Schmid & Company Inc. (Schmid), 
Consulting Ecologists, dated April 9, 1999 (Administrative Record No. 
PA 853.10); and Citizens for Pennsylvania's Future (PennFuture), dated 
January 18, 2005 (Administrative Record No. 853.31).
    Amerikohl Mining indicated that it was writing in support of the 
referenced amendment and further indicated that adoption of the 
proposed changes is a practical attempt to encourage significant 
amounts of abandoned mine

[[Page 25485]]

reclamation and coal recovery which would otherwise not happen.
    We appreciate Amerikohl's comments and believe our approval of this 
amendment will lead to benefits such as those described by Amerikohl.
    PCA indicated that it supports the amendment and believes the 
legislative and regulatory changes are important to the continued 
efforts to enhance remining opportunities and to encourage the 
reclamation of abandoned mine lands by industry. Additionally, PCA 
indicated that the water supply protection and replacement regulations 
are important for clear and consistent regulatory interpretation and 
enforcement.
    We appreciate PCA's comments with regard to enhancing remining of 
abandoned mine lands. We believe our approval of this portion of the 
amendment will lead to additional reclamation of abandoned mine lands. 
With regard to PCA's comments concerning water supply replacement, we 
have determined that portions of Pennsylvania's submission as noted 
previously are not consistent with SMCRA and the Federal regulations. 
As a result, we have not approved portions of the water supply 
replacement regulations for supplies affected by surface mining 
operations. We have determined that changes noted above for the 
regulations concerning water supplies affected by surface coal mining 
will make Pennsylvania's program consistent and will lead to PCA's 
goals of consistent regulatory interpretation and enforcement.
    Schmid provided numerous comments on various sections of the 
amendment. The comments are listed by the sections of PASMCRA and the 
implementing regulations that were the subject of the comments.
    25 Pa. Code 86.174(a). Schmid indicates that Stage 1 reclamation 
standards are assumed to have been met when, among other things, 
drainage controls have been installed. Schmid suggests that this 
standard should be expanded to require some period of follow up (6 
months to a year) to ensure that the installed controls are working 
effectively.
    The only change to this section proposed by Pennsylvania was to 
replace a roman numeral I with the Arabic 1 (regarding Stage 1) in 
Subsection (a) and to insert the word ``additional'' at the beginning 
of Subsection (d). Neither of these changes substantively modifies this 
section which was previously approved by OSM. Therefore, Schmid's 
comment is not responsive to the amendment. Moreover, since we had 
previously determined that this section was no less effective than the 
Federal regulations and since the amendment did not substantively 
modify this section, we do not have a reason to require Pennsylvania to 
make the suggested change.
    25 Pa. Code 86.251. Schmid indicates that this section is a very 
positive and commendable addition to Pennsylvania's program.
    We appreciate Schmid's comment in this regard.
    25 Pa. Code 87.1 and 88.1. Schmid commented that the definition of 
``reasonably available information'' in terms of its input to a water 
supply survey is too subjective. Schmid questions what constitutes an 
extraordinary effort or an excessive sum of money.
    As we noted above, Pennsylvania only uses the term ``water supply 
survey'' in its regulations at 25 Pa. Code 87.119 and 88.107 with 
regard to those circumstances that operators can rebut the presumption 
of liability for pollution as established in Subsection (b) of those 
regulations. The Federal regulations do not define the term, ``water 
supply survey.'' Since Pennsylvania only uses the term in conjunction 
with an operator's ability to rebut the presumption of liability of 
pollution, and rebutting the presumption of liability does not relieve 
operators of liability for the replacement or restoration of water 
supplies that were impacted by their mining operations, use of the term 
does not make Pennsylvania's program less effective than the Federal 
regulations.
    Also under 25 Pa. Code 87.1, 88.1, 89.5, and 90.1, Schmid noted 
that the definition of dry weather flow is proposed for deletion 
because water discharges are believed to be more appropriately 
regulated by State and Federal water quality laws and by EPA 
regulations. Schmid agrees in part but is not confident that the two-
step review process will work. Additionally, Schmid is not convinced 
that the mining agencies are doing a competent job of applying and 
enforcing water quality controls. Schmid would prefer to see all of the 
regulatory requirements imposed by a single regulatory entity that 
should be willing to accept and carry out all of its responsibilities.
    In its December 23, 2003, letter to us, Pennsylvania indicated that 
it wished to retain the definitions of both dry weather flow and best 
professional judgment. OSM had previously approved the inclusion of 
this definition in Pennsylvania's approved program. Because 
Pennsylvania has rescinded its desire to remove those definitions from 
the approved program, it is no longer a part of the amendment and 
Schmid's comment is no longer responsive to the amendment as revised.
    25 Pa. Code 87.102, 88.92, 88.187, 89.52, 90.102. Schmid indicated 
that these sections are proposed to be deleted because water discharges 
are believed to be more appropriately regulated by State and Federal 
water quality laws and by EPA regulations. Schmid also referenced its 
previous comments regarding the definition of dry weather flow.
    As we noted in the November 24, 2004, proposed rule in which we 
reopened the public comment period for this amendment, Pennsylvania 
informed us in a December 23, 2003, letter (Administrative Record No. 
PA 853.23) that it wished to retain 25 Pa. Code 87.102, 88.92, 88.187, 
89.52, and 90.102 as part of its approved program (69 FR at 68286-7). 
We have accepted Pennsylvania's request and therefore, Schmid's comment 
is no longer responsive to the amendment as revised.
    25 Pa. Code 87.119, 88.107, and 88.292. Schmid noted that the new 
provisions presume a mine operator is responsible for impacts to water 
supplies located within 1,000 feet of the areas bonded and affected by 
surface mining. Schmid was concerned that these areas could not be 
accurately delineated and indicated that if a water supply is impacted 
by a mining activity, even if it is outside the 1,000 foot zone, it is 
within an area affected by the mining.
    The Federal regulations require replacement or restoration of water 
supplies affected by surface mining activities regardless of the 
distance from the water supply to the mine. Pennsylvania's regulations 
require the same thing. However, Pennsylvania's regulations are more 
stringent than the Federal regulations in that they provide for a 
presumption of liability for restoration or replacement if the supply 
falls within the 1,000 foot zone described above. The Federal 
regulations do not have a presumption of liability with regard to water 
supplies. We have determined that this provision is not inconsistent 
with SMCRA and the Federal regulations and we have approved it.
    25 Pa. Code 87.147(b) and 88.121(b). Schmid commented on the 
portion of 25 Pa. Code 87.147(b) which indicates that introduced 
species may be used in the revegetation process when desirable and 
necessary to achieve the postmining land use. Schmid indicated that 
PADEP should not be encouraging the use of nonnative, alien or 
introduced species. Schmid suggests that this section should

[[Page 25486]]

instead indicate that native species are to be used in the revegetation 
process to achieve postmining land uses, except in exceptional 
circumstances as determined by PADEP.
    The Federal regulations at 30 CFR 816.111, like Pennsylvania's 
regulation at 25 Pa. Code 87.147(b), provide that introduced species 
may be used for establishing revegetation on disturbed areas where 
desirable and necessary to achieve the post mining land use. We have 
determined that Pennsylvania's regulation is no less effective than the 
Federal requirement and we are approving it.
    Schmid also commented on the proposal that states that plants used 
for revegetation should be capable of self-regeneration and plant 
succession. Schmid supports this provision, but noted that to determine 
whether the plants in the revegetated area are capable of self-
regeneration and plant succession could take several years. Schmid 
believes that it would be appropriate to impose a monitoring 
requirement to ensure that the goal of a diverse, effective, and 
permanent vegetative cover is achieved.
    The Pennsylvania program contains monitoring requirements, such as 
those recommended by Schmid, in its bond release requirements at 25 Pa. 
Code 86.151 and 86.175. The regulations at 25 Pa. Code 86.151 provide 
that liability under bonds posted for a surface mine continue for five 
years after completion of augmented seeding, fertilization, irrigation 
or other work necessary to achieve permanent vegetation of the site. 
The regulations at 25 Pa Code 86.175 provide that Stage 3 bonds cannot 
be released until that liability period has expired. Pennsylvania 
conducts periodic inspections of reclaimed sites to monitor the 
vegetation success and also conducts bond release inspections prior to 
any final bond release. Therefore, Schmid's concerns are addressed by 
the approved program.
    Section 4(a) of PASMCRA. Schmid indicated that the amendment 
requires that the permit application fee not exceed the cost of 
reviewing, administering, and enforcing such permit. Schmid commented 
that the environmental review of permit applications and the 
enforcement of environmental permit requirements have been woefully 
inadequate and that PADEP typically responds to this complaint by 
pointing to a lack of staff and resources. Schmid suggests that the 
application fees be raised as they have been too small for too long.
    The only change that Pennsylvania made to Section 4(a) of PASMCRA 
is to change the word ``minerals'' to ``coal'' in the first sentence. 
The sentence now requires a person who wishes to mine coal by the 
surface mining method to apply for a permit. While Schmid correctly 
notes that Section 4(a) of PASMCRA requires that permit fees not exceed 
the cost of reviewing, administering and enforcing a permit, this 
portion of PASMCRA was not the subject of the amendment and therefore, 
Schmid's comment is not responsive to the amendment. Schmid submitted 
the same comments for Subsection 4(a)(2). However, the only amendment 
to that subsection establishes a ground cover standard for previously 
mined areas proposed to be remined. Schmid's comment is not responsive 
to the amended portion of Subsection 4(a)(2).
    Section 4(g)(1) of PASMCRA. Schmid suggested that phase 1 bond 
release not occur until the operator has demonstrated, through follow-
up monitoring for at least six months, that pollution treatment 
provisions are being effective.
    As we noted in our finding on Section 4(g)(1), this provision has 
no precise Federal counterpart. However, we found it to be consistent 
with Section 519(b) of SMCRA, which requires the regulatory authority 
to evaluate ``whether pollution of surface and subsurface water is 
occurring, the probability of continuance of such pollution, and the 
estimated cost of abating such pollution.'' Therefore, we approved the 
change to Section 4(g)(1).
    Section 4(g)(2) of PASMCRA. Schmid indicates that this section 
proposes that no bond be released so long as the lands are contributing 
suspended solids to streamflow or runoff outside the permit area in 
excess of the requirements of law or until soil productivity for prime 
farmlands has returned. Schmid commented that for Pennsylvania to 
determine whether either of these conditions exists suggests that 
monitoring is being done, but none is mentioned. Schmid indicated that 
monitoring for suspended solids and soil productivity should be 
required as a prerequisite to bond release. Further, Schmid recommends 
that there not be an either/or situation (either no suspended solids in 
the water or the return of productive soil); the word ``or'' should be 
changed to ``and.'' Schmid also noted that this section proposes that a 
portion of a bond may be released as long as provisions for sound 
future maintenance by the operator or landowner have been made with 
PADEP. Schmid commented that the type of provisions that qualify as 
sound future management should be defined.
    The only change that Pennsylvania made to Section 4(g)(2) of 
PASMCRA was to preface the requirements for bond release of this 
section with the phrase ``At Stage 2.'' Our review of this section 
found that the addition of this phrase clarified that the bond release 
requirements of this section only apply to Stage 2. The actual 
requirements for bond release were not changed. Therefore, Schmid's 
comments questioning the requirements for release is not responsive to 
this amendment.
    Section 4(g)(3) of PASMCRA. Schmid noted that this section requires 
that the remainder of the bond be released when the operator has made 
provisions for the sound future treatment of pollutional discharges, if 
any. Schmid commented that the type of provisions that qualify as sound 
future treatment of pollutional discharges should be specified.
    Pennsylvania noted in the amendment submission that this portion of 
PASMCRA allows bond release on the remaining area in a situation where 
there is a postmining discharge associated with the permit and the 
permittee provides financial assurance for long-term treatment of the 
discharge to include areas used for water treatment. Pennsylvania also 
noted that in practice this involves replacing a reclamation bond with 
a financial assurance instrument that guarantees continued treatment of 
the postmining discharge. Finally, Pennsylvania noted that replacement 
of all or part of a reclamation bond can take place only when the 
permittee meets the appropriate standards for bond release at a stage 
of reclamation.
    In its comments submitted as part of the amendment, Pennsylvania 
made it clear that all bond release requirements must be met before any 
replacement of bonds with a financial assurance instrument can take 
place. Finally, Pennsylvania noted that replacement of a standard bond 
with a financial assurance for the cost of long term treatment is in 
practical terms a bond adjustment. Since all bond release standards 
will be met, and since one such standard is compliance with applicable 
water pollution requirements, Pennsylvania has effectively defined the 
term ``sound future treatment of pollutional discharges.'' Therefore, 
Pennsylvania has addressed the subject of Schmid's concerns.
    Sections 4(g.1), (g.2), and (g.3) of PASMCRA. Schmid submitted 
several comments on these sections. However, as noted above, 
Pennsylvania requested that we remove these sections from this program 
amendment, because its definition of ``minimal impact

[[Page 25487]]

postmining discharges'' and the regulations for postmining discharges 
were not included in the proposed program amendment. Since we are 
granting that request, and taking no further action in this rulemaking 
with respect to proposed sections 4(g.1), (g.2), and (g.3), Schmid's 
comments on these sections likewise need not be addressed in this 
rulemaking.
    Section 4.2(f)(2). Schmid had several concerns with the presumption 
of liability provisions of this section. Schmid was concerned about 
delineating the areas bonded and affected by mining. Schmid was also 
concerned because the presumption applies to areas that are not 
permitted and bonded. Finally, Schmid indicated that the five defenses 
for presumption of liability can exonerate an operator of liability for 
water supply replacement.
    The areas bonded and affected are determined through the mining 
permit maps and visual observation if the operator has affected areas 
beyond those delineated on the permit maps. The presumption of 
liability extends beyond all areas affected even if they are not 
permitted. While the Federal regulations do not provide for presumption 
of liability with regard to water supply diminution or contamination, 
there is nothing in the regulations prohibiting a State from enacting 
such presumption.
    The regulations for presumption of liability for water supply 
replacement apply only to the presumption that an operator caused the 
water supply problems. These regulations do not release the operator 
from liability to replace water supplies damaged by their mining 
activities. If the operator prevails on one or more of the five 
defenses from presumption, it simply means that PADEP must investigate 
the causes of the water supply problems. The operator has only rebutted 
the presumption that he caused the problems. If PADEP finds, through 
its investigation, that the operator is responsible for the water 
supply problems, even after a successful presumption rebuttal, the 
liability for restoration or replacement remains with the operator.
    Section 4.2(i) and 18(a). Schmid agreed with Pennsylvania's 
provisions regarding authority for entering property and the incentives 
for remining previously affected areas. We appreciate Schmid's comments 
with regard to these provisions.
    Section 18(a.1)(1). Schmid indicated that the title Secretary of 
Environmental Resources should be changed to the Secretary of 
Environmental Protection.
    Pennsylvania is aware of the need to change the title. In this 
case, use of the incorrect title does not make this provision any less 
effective than the Federal regulations. Therefore, we did not require 
Pennsylvania to make the change to the statute.
    In its letter of January 18, 2005, PennFuture asked that we reopen 
the comment period for two weeks or in the alternative consider 
comments attached to the letter. The comments attached to the letter 
were comments that PennFuture submitted to OSM on October 15, 2002, in 
response to an OSM advance notice of proposed rulemaking. We decided to 
accept the comments attached to PennFuture's January 18, 2005, letter.
    PennFuture's first comment concerned the substitution of 
alternative financial guarantees for traditional SMCRA bonds and how 
their use would affect termination of jurisdiction. PennFuture was 
concerned that use of a financial guarantee (such as a trust fund 
established to treat acid mine drainage) would lead to bond release and 
therefore termination of the regulatory authority's jurisdiction over a 
minesite. PennFuture commented that the Federal regulations allow 
release of a bond upon its replacement with another bond that provides 
equivalent coverage, but this substitution does not constitute a bond 
release. PennFuture also notes that an existing bond could be released 
upon establishment of a trust fund or other adequate financial 
guarantee of perpetual treatment, but that the substitute guarantee 
must be treated as the equivalent of a performance bond under Section 
509 of SMCRA. Section 509 does not permit bond release and the 
termination of jurisdiction over a site where mine drainage treatment 
operations are occurring.
    The provision at 25 Pa. Code 86.152(j), which we are approving in 
this rulemaking, provides that no bond release relieves the operator of 
the ``responsibility to treat discharges of mine drainage emanating 
from or hydrologically connected to the site, to the standards in the 
permit, the act, the Clean Streams Law, the Federal Water Pollution 
Control Act and the rules and regulations thereunder.'' Further, there 
is no bond release for that portion of the permit required for water 
treatment operations. Therefore, water treatment operations remain 
surface mining activities covered by the regulatory program. Thus, 
jurisdiction is not terminated.
    We agree with PennFuture that bonds can be released upon 
establishment of a trust fund or other financial guarantee if those 
instruments are treated as the equivalent of a performance bond under 
Section 509 of SMCRA. Pennsylvania regulations at 25 Pa. Code 86.158(f) 
provide for the use of trust funds as collateral bonds and as we noted 
in our discussion of that section, these provisions make Pennsylvania's 
regulations regarding trust funds no less effective than any other form 
of collateral bond.
    PennFuture's next comment concerned the form or characteristics of 
alternative financial guarantees. PennFuture indicated that an NPDES 
permit alone (as allegedly suggested by some Pennsylvania regulatory 
officials) would not suffice as an enforcement mechanism that could 
lead to bond release under the Federal termination of jurisdiction 
rule. PennFuture further indicated that alternative financial 
mechanisms must be sufficient to cover treatment costs as well as 
related expenses.
    As we noted earlier, Pennsylvania's regulations have established 
annuities or trust funds as collateral bonds as noted in 25 Pa. Code 
86.158(f). Those regulations provide that trust funds are established 
to guarantee that money is available for PADEP to pay for the treatment 
of postmining pollutional discharges. Through these regulations, 
Pennsylvania has satisfied PennFuture's concerns by requiring a form of 
collateral bond for treatment of discharges that will guarantee 
sufficient funds for treatment.
    PennFuture also commented that both PADEP and citizens of 
Pennsylvania should be named beneficiaries of the proceeds from 
financial assurance mechanisms.
    Pennsylvania's regulation at 25 Pa. Code 86.158(f)(2), that we 
approved in this rulemaking, provides that collateral bonds in the form 
of annuities or trust funds must, among other things, provide that 
PADEP is irrevocably established as the beneficiary of the trust fund 
or of the proceeds from the annuity. Because PADEP is a government 
entity serving the citizens of Pennsylvania, this provision satisfies 
PennFuture's concerns.
    PennFuture commented that alternative bonding systems could be 
established to ensure treatment of discharges. While new Section 4(d.2) 
of PASMCRA allows PADEP to ``establish alternative financial assurance 
mechanisms which shall achieve the objectives and purposes of the 
bonding program,'' the only such ``alternatives'' contained in this 
amendment are site-specific trust funds, and life insurance policies. 
Neither of these mechanisms constitutes a true ``alternative bonding 
system,'' but rather both are additional forms of collateral bonds that 
can be used in Pennsylvania's conventional

[[Page 25488]]

bonding system. Therefore, this comment is not responsive to the 
amendment.
    PennFuture commented that alternative financial mechanisms for 
treatment of discharges will not work if there are insufficient funds 
in those instruments. As we noted above, the Pennsylvania regulations 
require that sufficient funds be placed in the alternative financial 
mechanisms to guarantee that sufficient funds are in place for 
treatment of discharges.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Pennsylvania program 
(Administrative Record No. PA 853.02). We received a letter dated 
January 19, 1999, from the U.S. Department of Agriculture, Natural 
Resources Conservation Service (NRCS) (Administrative Record No. PA 
853.04) with two comments. The first comment indicated that the 
proposed re-establishment of vegetative cover appears to be adequately 
covered. NRCS recommended that a provision be made to insure erosion 
and sedimentation is adequately controlled during stabilization and 
afterwards if such a provision is not covered elsewhere in the existing 
program.
    In our review of Pennsylvania's program, we found that NRCS's first 
comment has been addressed. The comment appears to be directed to 
Pennsylvania's changes to its regulations at 25 Pa. Code 87.147 and 
88.121. In both cases, Pennsylvania added language that allows a 
reduced vegetative cover for reclamation of areas that were previously 
mined and not reclaimed to the standards of PASMCRA and the regulations 
at 25 Pa. Code Chapter 87. As noted above, we have determined that 
Pennsylvania's revised regulation is no less effective than the 
requirements of the Federal regulations at 30 CFR 816.116(a) and 
(b)(5). The revised language requires the vegetative cover to be 
adequate to control erosion and achieve the approved postmining land 
use. In addition, Pennsylvania's regulation at 25 Pa. Code 87.106 
provides for the construction of sediment control measures to prevent 
runoff outside the affected area and to minimize erosion to the extent 
possible. Therefore, these provisions respond to NRCS's concerns that 
erosion and sedimentation are adequately controlled.
    In its second comment, NRCS requested that the definition of the 
term ``water supply'' include agricultural use if it is not already 
covered. We have determined that Pennsylvania's program for the 
replacement of water supplies affected by surface mines includes those 
water supplies used for agricultural purposes. Our review of 
Pennsylvania's regulations found that the term ``water supply,'' as 
defined at 25 Pa. Code 87.1 and 88.1, includes an existing or currently 
designated or currently planned source of water or facility or system 
for the supply of water for agricultural uses, among others.
    We received letters from the U.S. Department of Labor, Mine Safety 
and Health Administration's (MSHA) New Stanton Office dated January 20, 
1999 (Administrative Record No. PA 853.05), and its Wilkes-Barre Office 
dated January 26, 1999 (Administrative Record No. PA 853.06). Both 
offices indicated that they did not identify any conflicts with 
existing MSHA regulations.
    In response to the request for comments we made in the November 24, 
2004, Federal Register Notice, MSHA's Arlington, Virginia, Office wrote 
us a letter dated December 20, 2004 (Administrative Record No. PA 
853.28) which indicated that if the amendment were adopted, it would 
have no impact on the activities of the agency. We also received a 
letter from MSHA's Wilkes-Barre, Pennsylvania, Office dated January 7, 
2005 (Administrative Record No. PA 853.30), in which MSHA indicated 
that it did not have any comments or concerns with the amendment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to 
solicit comments and 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.) or the Clean 
Air Act (42 U.S.C. 7401 et seq.).
    On December 22, 1998, we asked for concurrence on the amendment 
(Administrative Record No. PA 853.02). EPA responded in a letter dated 
May 25, 2000 (Administrative Record No. PA 853.19), by indicating that 
it determined that the proposed amendment complies with the Clean Water 
Act with one exception; deletion of 25 Pa. Code sections 87.102, 88.92, 
88.292, 89.52, and 90.102 that require compliance with 40 CFR part 424, 
Federal effluent standards for the coal mining industry. EPA noted that 
while comments in the amendment made it clear that Pennsylvania intends 
to continue to require compliance with Federal standards, a statement 
to that effect must be included in the text of the amendment itself. 
EPA provided its concurrence under the condition that either the 
sections requiring compliance with 40 CFR part 434 effluent standards 
not be deleted, or the 40 CFR part 434 effluent standards be included 
in the text of the amendment by reference.
    As we noted in the November 24, 2004, proposed rule in which we 
reopened the public comment period for this amendment, Pennsylvania 
informed us in a December 23, 2003, letter (Administrative Record No. 
PA 853.23), that it wished to retain as part of its approved program 
the above referenced regulations which provide effluent limits. We have 
accepted Pennsylvania's request and therefore, the conditions of EPA's 
concurrence have been met.
    EPA had two other comments regarding the amendment. The first 
comment involved the deletion of remining standards for treatment of 
preexisting discharges. EPA noted that the amendment deletes the 
requirement for applying best professional judgment (BPJ) treatment to 
preexisting discharges from abandoned mines during remining. EPA 
indicated that although Pennsylvania requires compliance with BPJ 
requirements under Section 301(p) of the Clean Water Act, it recommends 
that Pennsylvania retain the BPJ requirements in its mining regulations 
in order to provide guidance to remining applicants.
    In its letter to us dated December 23, 2003, Pennsylvania revised 
the proposed amendment to retain, as part of its approved program, the 
regulations dealing with BPJ. Therefore, EPA's concerns in this regard 
have been addressed.
    EPA's second comment involved Stage 3 bond release criteria. EPA 
noted that the proposed revisions in Sections 4(g.1) and (g.2) of 
PASMCRA specify the conditions for allowing Stage 3 bond release for 
reclaimed mines that have minimal-impact post mining discharges. EPA 
indicated that although the terms ``minimal impact post mining 
discharges'' and ``substantially improved water quality'' are somewhat 
vague, it does not object to the proposed revisions for Stage 3 release 
as long as the discharges comply with applicable National Pollutant 
Discharge Elimination System (NPDES) regulations and water quality 
standards for the receiving stream. EPA further noted that prior to 
final bond release, groundwater discharges from underground mines and 
surface water discharges from surface or underground mines are required 
to meet 40 CFR part

[[Page 25489]]

434 limit. Discharges for ground water seeps from surface mines may be 
addressed by BPJ rather than 40 CFR part 434 requirements in accordance 
with the January 28, 1992, guidance memorandum from EPA's NPDES Program 
Branch. EPA concluded by noting that determination of BPJ limits must 
be based on criteria established in 40 CFR 125.3(d) and more stringent 
limits may be necessary to comply with water quality standards. After 
reclamation and final bond release, recurrence of pollutants to waters 
of the U.S. through seeps or surface runoff may considered as point 
sources, subject to NPDES permitting and compliance with BPJ limits and 
water quality standards.
    As we noted above, in its letter of December 23, 2003, Pennsylvania 
removed Sections 4(g.1)-(g.3) from its amendment because its definition 
of ``minimal impact postmining discharges'' and the regulations for 
postmining discharges were not included in the proposed program 
amendment. Since Pennsylvania has removed these provisions from the 
amendment, there is no further action required on our part. 
Pennsylvania's removal of these sections addresses EPA's concerns.
    In response to our request for comments in the November 24, 2004, 
Federal Register Notice, EPA wrote us a letter dated December 27, 2004 
(Administrative Record No. PA 853.27) indicating that it was pleased 
that Pennsylvania had decided to retain the language regarding effluent 
limits for discharges from areas disturbed by coal mining activities 
that originally was proposed to be removed from the Pennsylvania 
program. EPA further indicated that it did not have any other comments.
    We appreciate EPA's review of the amendment.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and the ACHP on amendments that may have an effect on historic 
properties. On December 22, 1998, we requested comments on 
Pennsylvania's amendment (Administrative Record No. PA 853.02). The 
Pennsylvania Historical and Museum Commission (PHMC) responded on 
January 14, 1999 (Administrative Record No. PA 853.03). PHMC indicated 
that it is primarily concerned with surface mining and reclamation 
projects that might impact cultural resources. PHMC noted that most 
reclamation projects impact areas already disturbed by mining 
activities and thus, this amendment to Pennsylvania's program will 
generally have little impact on important cultural resources. However, 
PHMC noted that there is potential for historic mining or industrial 
structures (e.g., coke ovens, etc.) to be impacted by such work.
    PHMC further indicated that the definition of the term ``remining 
area'' at 25 Pa. Code 86.252 includes a statement that additional 
undisturbed land may be within a remining area if the permittee 
demonstrates that a larger area is needed to accomplished backfilling 
and grading of the unreclaimed area or is needed for support activities 
for the remining activity. PHMC is concerned that the ability of a 
reclamation project to include previously undisturbed land suggests 
that there could be impacts to cultural resources not identified during 
the original mining operation. PHMC suggests that an addition be made 
to 25 Pa. Code 86.252 to indicate that cultural resources on previously 
mined and on undisturbed property within the project area must be 
identified and evaluated as part of the reclamation plan.
    We have determined that PHMC's concerns have been addressed through 
areas of the approved Pennsylvania program. The Pennsylvania program 
provides that permittees must identify archaeological, cultural and 
historic resources in their permit applications. For surface mines, 
this requirement is found at 25 Pa. Code 87.42(2), for anthracite mines 
at 25 Pa. Code 88.22(2), for underground mines at 25 Pa. Code 89.38(a), 
and for coal refuse disposal at 25 Pa. Code 90.11(a)(3). The areas 
discussed under Pennsylvania's definition of ``remining area'' must be 
permitted and therefore, must be evaluated for the presence of 
archaeological, cultural and historic resources as noted in the above 
noted sections of the approved program. As a result, we have determined 
that there is no need for Pennsylvania to revise its definition of 
``remining area.''

V. OSM's Decision

    Based on the above findings we approve, with certain exceptions, 
the amendment Pennsylvania sent us on December 22, 1998, and as revised 
on December 23, 2003, and April 13, 2004. We are not approving the 
following sections to the extent noted:
    4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to the 
extent that it would allow Phase 3 bond release.
    4.12(b) of PASMCRA. We are not approving Subsection (b) to the 
extent that it creates an alternative bonding system.
    In 25 Pa. Code Chapter 86.281(e), the last sentence which states, 
``If the actual cost of reclamation by PADEP exceeds the amount 
reserved, additional funds from the Remining Financial Assurance Fund 
will be used to complete reclamation'' is not approved.
    25 Pa. Code Chapter 87.1 and 88.1. Definition of ``de minimis cost 
increase.'' The definition is not approved as it applies to coal mining 
activities.
    25 Pa. Code 87.119, 88.107. We are not approving Subsection (a) to 
the extent that it would allow the replaced water supply to be of a 
lesser quantity and quality than the premining water supply or not 
provide for temporary replacement of water supplies. We are not 
approving Subsection (a)(1)(v) to the extent it would pass on operating 
and maintenance costs of a replacement water supply in excess of the 
operating and maintenance costs of the premining water supply to the 
landowner or water supply user. We are not approving Section (a)(2) to 
the extent that an operator is not required to provide for all 
increased operating and maintenance costs of a restored or replaced 
water supply. Finally, we are not approving Subsection (a)(3) to the 
extent it would allow a waiver from the requirements for replacing a 
water supply outside the requirements of 30 CFR 701.5 regarding the 
definition of the term, ``replacement of water supply.'' We are 
approving 87.119 (a), (a)(1)(v), (a)(2) and (a)(3) and 88.107(a), 
(a)(1)(v), (a)(2) and (a)(3) to the extent it applies to government 
financed reclamation.
    25 Pa. Code 87.119(g) and 88.107(g). These sections are not 
approved.
    25 Pa. Code 87.119(i) and 88.107(i). We are not approving 
Subsection (i) to the extent that it would allow Phase 3 bond release.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR 938.12, 938.15 and 938.16 which codify decisions concerning 
the Pennsylvania program. We find that good cause exists under 5 U.S.C. 
553(d)(3) to make this final rule effective immediately. Section 503(a) 
of SMCRA requires that the State's program demonstrate that the State 
has the capability of carrying out the provisions of the Act and 
meeting its purposes. Making this regulation effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

VI. Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly,

[[Page 25490]]

30 CFR 732.17(a) requires that any change of an approved State program 
must be submitted to OSM for review as a program amendment. The Federal 
regulations at 30 CFR 732.17(g) prohibit any changes to approved State 
programs that are not approved by OSM. In the oversight of the 
Pennsylvania program, we will recognize only the statutes, regulations, 
and other materials we have approved, together with any consistent 
implementing policies, directives, and other materials. We will require 
Pennsylvania to enforce only approved provisions.

VII. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the counterpart Federal regulations. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by Section 3 of Executive Order 12988 and has determined that 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 regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under Sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and Section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
Pennsylvania does not regulate any Native Tribal lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies that a portion of the 
provisions in 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.) because they are based upon counterpart 
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. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied upon the data and assumptions 
for the counterpart Federal regulations. The Department of the Interior 
also certifies that the provisions in this rule that are not based upon 
counterpart Federal regulations 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.). This determination is based on 
the fact that the provisions are administrative and procedural in 
nature and are not expected to have a substantive effect on the 
regulated industry.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that a portion 
of the State provisions are based upon counterpart Federal regulations 
for which an analysis was prepared and a determination made that the 
Federal regulation was not considered a major rule. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are

[[Page 25491]]

administrative and procedural in nature and are not expected to have a 
substantive effect on the regulated industry.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 14, 2005.
Brent Wahlquist,
Regional Director, Appalachian Region.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.

0
2. Amend Section 938.12 to add paragraph (c) to read as follows:


Sec.  938.12  State statutory, regulatory, and proposed program 
amendment provisions not approved.

* * * * *
    (c) We are not approving the following portions of provisions of 
the proposed program amendment that Pennsylvania submitted on December 
18, 1998:
    (1) 4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to 
the extent that it would allow Phase 3 bond release.
    (2) 4.12(b) of PASMCRA. We are not approving Subsection (b) to the 
extent that it creates an alternative bonding system.
    (3) 25 Pa. Code 86.281(e). The last sentence which states, ``If the 
actual cost of reclamation by the Department exceeds the amount 
reserved, additional funds from the Remining Financial Assurance Fund 
will be used to complete reclamation'' is not approved.
    (4) 25 Pa. Code 87.1 and 88.1, Definition of ``de minimis cost 
increase.'' The definition is not approved as it applies to coal mining 
activities.
    (5) 25 Pa. Code 87.119 and 88.107. With regard to coal mining 
activities, we are not approving Subsection (a) to the extent that it 
would allow the replaced water supply to be of a lesser quantity and 
quality than the premining water supply or does not provide for 
temporary replacement of water supplies. We are not approving 
Subsection (a)(1)(v) to the extent it would pass on operating and 
maintenance costs of a replacement water supply in excess of the 
operating and maintenance costs of the premining water supply to the 
landowner or water supply user. We are not approving Section (a)(2) to 
the extent that an operator is not required to provide for all 
increased operating and maintenance costs of a restored or replaced 
water supply. Finally, we are not approving Subsection (a)(3) to the 
extent it would allow a waiver from the requirements for replacing a 
water supply outside the requirements of 30 CFR 701.5 regarding the 
definition of the term, ``replacement of water supply.''
    (6) 25 Pa. Code 87.119(g) and 88.107(g). These sections are not 
approved.
    (7) 25 Pa. Code 87.119(i) and 88.107(i). We are not approving 
Subsection (i) to the extent that it would allow Phase 3 bond release.

0
3. 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
------------------------------------------------------------------------
 
                              * * * * * * *
December 18, 1998.............  May 13, 2005.....  In PASMCRA, Section 3
                                                    Definition of
                                                    ``Total Project
                                                    Costs;'' Sections
                                                    3.1; 4(a), (d),
                                                    (d.2), (g), and (h);
                                                    4.2(f) (partial
                                                    approval); 4.2(i);
                                                    4.6(i) and (j); 4.7;
                                                    4.10; 4.11; 4.12
                                                    (partial approval);
                                                    4.13; 18(a), (a.1),
                                                    (a.2), and (a.3);
                                                    18(f), (g)(4) and
                                                    (5); 18.7; 18.9;
                                                    18.10.
                                                   25 Pa. Code 86.142
                                                    Definitions of
                                                    ``Annuity,''
                                                    ``Trustee,'' and
                                                    ``Trust Fund;'' 25
                                                    Pa. Code 86.151(b),
                                                    (c), and (j);
                                                    86.152(a) and (b);
                                                    86.156(b);
                                                    86.157(3), (4), (5),
                                                    (6), (7), and (8);
                                                    86.158(c)(6), (e),
                                                    (f), and (g);
                                                    86.161(3); 86.168;
                                                    86.171(a), (b)(6)
                                                    and (7), (f)(4),
                                                    (g), and (h);
                                                    86.174(a) and (d);
                                                    86.175(a) and
                                                    (b)(3); 86.182(a)(3)
                                                    and (4), (d), (e),
                                                    (f), (g); 86.195(b),
                                                    86.251-253; 86.261-
                                                    86.270; 86.281(a)-
                                                    (d); 86.281(e)
                                                    (partial approval);
                                                    86.282-284; 86.291-
                                                    295; 86.351-359.
                                                   25 Pa. Code 87.1
                                                    Definitions of
                                                    ``Water Supply,''
                                                    ``Water Supply
                                                    Survey''; deletion
                                                    of 87.11-21; 87.119
                                                    (partial approval);
                                                    87.147(b).
                                                   25 Pa. Code 88.1
                                                    Definitions of
                                                    ``Water Supply,''
                                                    ``Water Supply
                                                    Survey''; 88.107
                                                    (partial approval);
                                                    88.121(b);
                                                    88.209(b).
------------------------------------------------------------------------

[FR Doc. 05-9570 Filed 5-12-05; 8:45 am]
BILLING CODE 4310-05-P