[Federal Register Volume 89, Number 153 (Thursday, August 8, 2024)]
[Rules and Regulations]
[Pages 64790-64797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17336]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-167-FOR; Docket ID: OSM-2017-0009; S1D1S SS08011000 
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]


Pennsylvania Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Pennsylvania regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The amendment authorizes and implements a land 
reclamation financial guarantee program as a new alternative bonding 
option for operators that meet certain requirements. The amendment also 
authorizes and implements a bioenergy crop bonding program to provide 
financial guarantees to remining operators that grow bioenergy crops as 
a postmining land use. Finally, the amendment standardizes certain 
terms and corrects citations in statutory and regulatory provisions 
affected by the addition of a new section to the Pennsylvania 
regulatory program or changed for other reasons.

DATES: This rule is effective September 9, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Field Office 
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation 
and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: 
(412) 937-2827, Email: [email protected], Fax: (412) 937-2177.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

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 approved State program includes, among other things, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
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 of the Pennsylvania 
program in the July 30, 1982, Federal Register (47 FR 33050). You can 
also find later actions concerning the Pennsylvania program and program 
amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

II. Submission of the Amendment

    By letter dated July 26, 2017 (Administrative Record No. PA 
900.00), the Pennsylvania Department of Environmental Protection 
(PADEP) sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). The amendment included the following proposed changes to the 
Pennsylvania Surface Mining Control and Reclamation Act (PASMCRA), 52 
P.S. 1396.1-1396.19b, title 25 of the Pennsylvania Code, and 
Pennsylvania's approved program.

Statutory Changes

Mining Permit and Bioenergy Crop Bonding, Act 95 of 2012, House Bill 
608
    Pennsylvania adopted an amendment to PASMCRA (52 P.S. 1396.1-
1396.19b), Act 95, entitled Mining Permit and Bioenergy Crop Bonding, 
on July 5, 2012, Public Law 918, No. 95, and designated it as becoming 
effective on September 3, 2012 (pending OSMRE approval). In addition to 
standardizing references to ``department'' and ``secretary'' throughout 
PASMCRA, Act 95 amended section 4(a) to ``encourage and promote'' the 
use of bioenergy crops for revegetation during reclamation of remined 
lands. See 52 P.S. 1396.4(a)(2)(c) (referring to remined lands as 
``areas previously disturbed by mining activities that were not 
reclaimed to the standards of this act''). In addition, the provisions 
added section 4.14 to PASMCRA, 52 P.S. 1396.4(n), which provides for 
sum-certain financial guarantees to qualifying operators for stage III 
reclamation liability at remining sites, among other things.
Mining Permit, Reclamation Plan, and Bond and Land Reclamation 
Financial Guarantees, Act 157 of 2012, House Bill 1813
    Pennsylvania adopted an amendment to PASMCRA (52 P.S. 1396.1-
1396.19b), Act 157, entitled Mining Permit, Reclamation Plan, and Bond 
and Land Reclamation Financial Guarantees, on October 24, 2012, Public 
Law 1276, No. 157, and designated it as becoming effective on December 
23, 2012 (pending OSMRE approval). Act 157 amended section 4 of PASMCRA 
and added section 19.2 (52 P.S. 1396.19b). In conjunction, these 
provisions authorize and direct PADEP to establish a program to provide 
``land reclamation financial guarantees'' (LRFGs) to qualified 
operators to ensure reclamation of certain mining lands. An LRFG is a 
form of bond or collateral that may be available to qualified surface 
coal mining operators engaged in surface mining activities. 
Pennsylvania provides the financial guarantee to qualified operators to 
satisfy, in part, the required bond obligation.
    The LRFG program provides for the assessment and collection of 
premiums from operators for such guarantees in an amount sufficient to 
assure the financial stability of the financial guarantee program and 
to cover Pennsylvania's cost to administer the program. This program 
replaces Pennsylvania's Conversion Assistance Program (CAP) of 2001. 
The CAP was a temporary program intended to assist existing mine 
operations in transitioning to Pennsylvania's newly established full 
cost bonding requirements. The statutory provisions address site and 
operator eligibility, establish an account for a new program in the 
Surface Mining Conservation and Reclamation Fund (referred to as the 
LRFG Account), and

[[Page 64791]]

authorize the transfer of funds from the CAP to the LRFG Account. In 
addition, these provisions authorize PADEP to transfer funds from the 
LRFG Account into the Remining Financial Assurance Fund, established 
under 52 P.S. 1396.18, or into the Reclamation Fee Operation and 
Maintenance Trust Account (hereafter the ``Trust Account''), 
established under 25 Pa. Code 86.17 and 86.187, as well as to allocate 
interest earned on the account. These provisions also set conditions 
for management of the account and dissolution of the program.

Regulatory Changes

    On April 21, 2015, the Pennsylvania Environmental Quality Board 
adopted changes to mining regulations in title 25 of the Pennsylvania 
Code, changes that were designated as becoming effective on August 22, 
2015. In particular, the Board adopted sections 86.162b and 86.162c and 
made various amendments to chapters 77, 86 to 90, and 211. The 
additional sections in chapter 86 implemented the statutory changes in 
Act 95 and Act 157. The amendments in chapters 77, 86 to 90, and 211 
also corrected citations affected by addition of section 19.2 to 
PASMCRA, corrected additional citations changed for other reasons, and 
made other non-substantive changes.
    We announced receipt of the proposed amendment in the April 3, 
2019, Federal Register (84 FR 12983). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. We did not hold a 
public hearing or meeting because one was not requested, and we 
received no public comments. The public comment period ended on May 3, 
2019.

III. OSMRE's Findings

    We are approving the amendment to the Pennsylvania regulatory 
program under SMCRA and the Federal regulations at 30 CFR 732.15 and 
732.17, as described in our findings below. The full text of the 
amendment is available at www.regulations.gov.

Finding 1: Section 4(d) of PASMCRA

    Pennsylvania, through Act 157, revised section 4(d) of PASMCRA to 
add LRFGs to the list of available forms of reclamation bond set out in 
section 4(d). The revised provision requires that LRFGs be consistent 
with section 19.2 of PASMCRA and regulations implementing the LRFG 
program, which are described in Finding 2 and Finding 4.
    OSMRE Finding: We have determined that the change to this section 
is no less stringent than section 509(a) of SMCRA, 30 U.S.C. 1259(a), 
which requires that performance bonds be sufficient to assure 
completion of reclamation, and that it is no less effective than the 
Federal regulation at 30 CFR 800.11(e), which governs OSMRE approval of 
alternative bonding systems. The LRFG program as referenced in section 
4(d), described at section 19.2 of PASMCRA, and implemented by the 
proposed regulations at 25 Pa. Code 86.162b, is an alternative bonding 
system. For reasons discussed in Finding 2 and Finding 4, this system 
meets the requirements of 30 CFR 800.11(e)(1) and (2) that alternative 
bonding systems assure financial solvency and include a substantial 
incentive for operators to fulfill their reclamation plans.

Finding 2: Section 19.2 of PASMCRA

    Pennsylvania, through Act 157, added section 19.2 to PASMCRA. See 
52 P.S. 1396.19b. Section 19.2 made LRFGs an acceptable form of bond or 
collateral, available to certain operators for use in combination with 
surety bonds, as further discussed below. Pennsylvania provides the 
financial guarantee to qualified operators to satisfy, in part, the 
required bond obligations. In addition, section 19.2 directed the 
Environmental Quality Board to promulgate regulations implementing the 
LRFG program, and the Board did so on April 21, 2015.
    As discussed in Finding 4, the implementing regulations at 25 Pa. 
Code 86.162b provide, among other things, that qualifying for an LRFG 
requires an operator to have possessed a coal mining license in 
Pennsylvania for at least five years and have a surety bond or letter 
of acceptance for a surety bond covering at least 50 per cent of the 
reclamation liability for the site. In addition, the implementing 
regulations provide for the assessment and collection of premiums from 
operators for such guarantees in an amount sufficient to assure the 
financial stability of the program and to cover Pennsylvania's cost to 
administer it. These premiums are paid on an annual basis and are 
additional to the one-time, acreage-based reclamation fees that 
operators pay into the Trust Account upon permit issuance.
    This program replaces the CAP, which replaced a predecessor program 
(alternative bonding system) in 2001, a change that was accompanied by 
``conversion'' of all surface coal mine sites to full-cost bonding. The 
CAP program was created to serve as a bridge to the new full-cost 
bonding program. Section 19.2 replaces the CAP through terms that 
address site and operator eligibility, establishment of an account for 
the financial guarantees (specifically, the LRFG Account), transfer of 
funds from the CAP program to the LRFG Account, and transfer of funds 
from the LRFG Account into either the Remining Financial Assurance Fund 
or the Trust Account. In addition, these provisions address allocation 
of interest earned in the account, conditions for dissolution of the 
program, and management of the account.
    OSMRE Finding: We have determined that the provisions of section 
19.2 are no less stringent than section 509(a) of SMCRA, 30 U.S.C. 
1259(a), and no less effective than the Federal regulation at 30 CFR 
800.11(e). Under section 800.11(e), OSMRE may approve alternative 
bonding systems if they assure financial solvency and include a 
substantial economic incentive for operator compliance with reclamation 
standards. We find that section 19.2 does so.
    Pennsylvania's implementing regulations include several provisions 
intended to assure financial solvency, as discussed below. In addition, 
subsection 19.2(b)(1) directs Pennsylvania to assess and collect 
premiums annually from operators who choose to obtain the financial 
guarantees. This subsection also directs Pennsylvania to establish, by 
regulation, an annual premium amount sufficient to assure the stability 
of the fund. Subsection 19.2(b)(3)(i) adds to the overall solvency of 
the account by transferring funds from the previous financial guarantee 
program (the CAP), and subsection 19.2(b)(7) authorizes the 
appropriation of up to $2 million annually to supplement the program.
    Pennsylvania also proposes to limit solvency risk by screening 
potential financial guarantee recipients according to the provisions in 
subsection 19.2(c), including site conditions, operator financial 
stability, operator compliance history, and the availability of coal 
reserves at the site. Pennsylvania proposes to track and respond to the 
changing financial outlook of the account through regulations 
establishing underwriting methods for insuring the account against 
declared forfeitures, subsection 19.2(d)(2), and by allowing the 
guarantee program to cease immediately if 25 percent or more of the 
outstanding bond amounts in the program are declared forfeit, 
subsection 19.2(e)(1). These measures, along with further limitations 
described in the amendment's implementing regulations at 25 Pa. Code 
86.162b (discussed and approved in Finding 4 below) and 86.162c 
(discussed and approved in

[[Page 64792]]

Finding 9 below), aid in assuring that Pennsylvania will maintain 
sufficient funds to complete reclamation activities at any site where 
the operator forfeits the bond, as required by 30 CFR 800.11(e)(1).
    For these reasons, we have determined the LRFG program proposed in 
section 19.2 is no less stringent than SMCRA and no less effective than 
the applicable Federal regulations. Accordingly, we are approving 
section 19.2 of PASMCRA.

Finding 3: 25 Pa. Code 86.17(e)(2). Permit and Reclamation Fees

    Pennsylvania revised this subsection of chapter 86 of its 
administrative code to add additional reporting requirements to the 
annual fiscal-year report to the legislature on the revenue and 
expenditures of the Reclamation Fee Operation and Maintenance Trust 
Account. In addition to items previously required when the Trust 
Account was originally established under 25 Pa. Code 86.17 and 86.187, 
information about the need for supplemental funding would now be 
required in the annual report. The revised subsection also requires 
PADEP to provide an estimate of the per-acre charge to be assessed in 
the next calendar year on operators seeking permits. This one-time 
reclamation fee is paid by operators and credited to the Trust Account. 
PADEP calculates the per-acre fee based on projected revenues and 
expenditures for the upcoming year.
    OSMRE Finding: We have determined that this change is no less 
effective than the Federal regulation at 30 CFR 800.11(e)(1). The 
regulation requires that alternative bonding systems include measures 
to assure that the regulatory authority will have enough money to 
complete reclamation at bond forfeiture sites. This regulatory change 
requires Pennsylvania to add information to the annual program analysis 
about the funding mechanism of the Trust Account and whether the 
reclamation fee is expected to be sufficient to cover operation and 
maintenance costs for the next fiscal year. We agree with Pennsylvania 
that analysis of long-term operational and maintenance costs at bond-
forfeited legacy sites will help determine whether supplemental funding 
of the Trust Account is needed. The requirement that this additional 
information be included in the annual report will allow Pennsylvania to 
respond more effectively to changing conditions and supplement the 
account, as needed. These enhancements, in conjunction with other 
provisions in this chapter, satisfy the Federal regulatory requirement 
for States using alternative bonding systems to maintain sufficient 
funds to fulfill reclamation obligations at bond-forfeited sites. 
Therefore, we are approving the change to 25 Pa. Code 86.17(e)(1).

Finding 4: 25 Pa. Code 86.162b. LRFGs

    Pennsylvania added this section to chapter 86 to detail 
implementation of the LRFG program and a financial account to 
facilitate administration of these guarantees. The LRFG Account is a 
financial instrument used to underwrite LFRGs and financially assure 
qualified operators of their bonding obligations. The LFRG Account also 
serves to fund bioenergy crop bonding as authorized in section 86.162c 
(see Finding 9) and fund any remaining sum-certain financial guarantees 
from previous programs such as the CAP. Another use of the LRFG Account 
is to assure sufficient funds for reclamation liabilities are available 
should any bond forfeitures occur.
    Section 86.162b imposes several limits on Pennsylvania in issuing 
financial guarantees; it converts existing financial guarantees 
previously issued by Pennsylvania into LRFGs subject to outlined 
limits; and it requires Pennsylvania to prepare a report no less 
frequently than every five years that analyzes the revenue and expenses 
of the account and evaluates the limits on financial guarantees. 
Additionally, section 86.162b establishes eligibility requirements for 
recipients of financial guarantees; requires the operator to pay annual 
premiums to Pennsylvania of 1.5 percent of the total amount of the 
financial guarantee; requires additional bonds or financial assurance 
if a postmining pollutional discharge develops; establishes procedures 
for bond forfeiture from operators who choose to obtain the financial 
guarantees; and establishes procedures for discontinuing the financial 
guarantee program.
    OSMRE Finding: We have determined that section 86.162b is no less 
effective than the Federal regulations at 30 CFR 800.11(e). Subsections 
(a) through (d) of this section are a straightforward description of 
the LRFG Account as a mechanism for receiving and distributing funds 
associated with the financial guarantee program. Subsection (e) 
describes the uses of the monies in the account, including covering 
reclamation liabilities when bond forfeiture occurs and underwriting 
financial guarantees for bioenergy crop bonding under 25 Pa. Code 
86.162c. These provisions aid in achieving the objectives of 30 CFR 
800.11(e).
    Subsection (f) imposes several limits on Pennsylvania in issuing 
financial guarantees. Pennsylvania may not issue financial guarantees 
exceeding 50 percent of the required bond amount for the permit, and it 
may not issue guarantees to individual operators in excess of 30 
percent of the funds in the account. Pennsylvania also may not issue 
guarantees to any operators when the total amount of outstanding 
guarantees exceeds the amount of money in the account divided by the 
historical rate of bond forfeiture plus a safety margin. The total 
program limit on financial guarantee amounts aids in assuring solvency 
of the overall fund. The noted 50 percent limit also enhances solvency 
by ensuring that operators post traditional performance bonds for 50 
percent or more of the reclamation liabilities. These traditional 
performance bonds will provide a significant economic incentive for 
compliance with the reclamation plan. The program limits and financial 
incentives all help Pennsylvania in achieving the objectives of 30 CFR 
800.11(e)(1) and (2).
    Subsection (g) of this section converts existing financial 
guarantees previously issued by Pennsylvania into LRFGs. The LRFGs are 
subject to the operator, permit, and program limits described elsewhere 
in section 86.162b. The new alternative bonding system will be easier 
for Pennsylvania to manage by consolidating the previous financial 
guarantees under the LRFG program. Because Pennsylvania will subject 
these converted financial guarantees to the limits of subsection (f), 
the LRFG program will help to assure that the objectives of 30 CFR 
800.11(e)(1) and (2) are met, for the same reasons described 
previously.
    Subsection (h) of this section directs Pennsylvania to prepare a 
report no less frequently than every five years to analyze the revenue 
and expenses of the LRFG Account and evaluate the limits on financial 
guarantees. This report is independent of the annual Trust Account 
report previously discussed. Pennsylvania must submit the report to the 
Mining and Reclamation Advisory Board (tasked with advising 
Pennsylvania on all matters of surface mining and reclamation) and make 
the report available to the public. Subsection (h) requires that, if 
Pennsylvania changes the financial guarantee limits based on the 
report, it will publish a notice highlighting those changes in the 
Pennsylvania Bulletin. These reports and the analyses they require will 
strengthen Pennsylvania's capacity to assure the solvency of the 
alternative bonding system, as required by 30 CFR 800.11(e)(1), by 
revisiting the various program limits, as well as revenue and expenses, 
with the input of

[[Page 64793]]

both the Mining and Reclamation Advisory Board and the public.
    Subsections (i) and (j) of this section authorize Pennsylvania to 
transfer interest and payments from the LRFG Account to the Trust 
Account, as described at 25 Pa Code 86.17. No new alternative bonding 
system sites will come into existence because Pennsylvania has 
transitioned to full-cost bonding. The interest transfer is intended to 
transition existing alternative bonding system sites to a full funded 
status for their long-term treatment obligations. Pennsylvania may only 
use funds in the Trust Account for treating postmining pollutional 
discharges at alternative bonding system sites. The transfer of funds 
from one account to another does not affect the overall solvency of 
Pennsylvania's alternative bonding system. However, a check and balance 
on these transfers has been included in subsection (j), whereby PADEP 
must seek input from the Mining and Reclamation Advisory Board prior to 
any funds transfer into the Trust Account from the LRFG Account. 
Together these provisions will aid in achieving the objectives of 30 
CFR 800.11(e)(1).
    Subsection (k) establishes eligibility requirements for those who 
choose to obtain the financial guarantees. This subsection requires 
that operators hold valid coal mining leases, satisfy the requirements 
of subsections 86.37(a)(8) to 86.37(a)(8)(11) and 86.37(a)(8)(16) 
(relating to correction of previous violations), have a record of 
making timely payments on previous financial guarantees, and have not 
failed to maintain proper bonds within the previous three years. 
Operators obtaining financial guarantees for the first time must 
demonstrate experience in mining and reclamation by having coal mining 
licenses for at least five years. Operators must also submit either a 
surety bond for the remaining portion of the reclamation liability or a 
letter of acceptance from a surety company. These eligibility 
requirements reduce the chances of an operator forfeiting a bond by 
screening out inexperienced operators or operators with uncorrected 
violation histories. In doing so, this subsection helps assure solvency 
of the LRFG Account, furthering the objectives of 30 CFR 800.11(e)(1).
    Subsection (l) describes the requirements for applications for 
financial guarantees, which include descriptions of the environmental 
and safety hazards of the proposed site, the availability of coal 
reserves at the site, and any prior denials of surety coverage. These 
requirements will help Pennsylvania select sound investments for 
financial guarantees and help assure the solvency of the LRFG Account, 
furthering the objectives of 30 CFR 800.11(e)(1).
    Subsection (m) requires operators obtaining a financial guarantee 
to pay annual premiums to Pennsylvania of 1.5 percent of the total 
amount of the financial guarantee and imposes related requirements and 
limitations. This subsection authorizes Pennsylvania to use the annual 
premiums to fund reclamation activities if bond forfeitures occur or to 
transfer excess funds to the Trust Account. These provisions help 
assure the solvency of the LRFG Account, as required by 30 CFR 
800.11(e)(1).
    Subsection (n) authorizes Pennsylvania to adjust the payment 
percentage rate to assure the financial stability of the LRFG Account, 
after soliciting advice from the Mining and Reclamation Advisory Board. 
The annual premiums will supplement the funds in the Account from the 
transfer of Pennsylvania's previous financial guarantee program and the 
annual appropriations from the electricity tax. Together these 
provisions will aid in achieving the objectives of 30 CFR 800.11(e)(1).
    Subsection (o) requires Pennsylvania to reduce or release financial 
guarantees from the previous CAP before other obligations, followed by 
financial guarantees from the proposed LRFG program, and finally 
remaining performance bonds from the operator. By holding onto the 
remaining performance bonds until after releasing guarantees under the 
LRFG program, Pennsylvania will maintain the substantial economic 
incentive for the operator to fulfill its reclamation obligations as 
required in 30 CFR 800.11(e)(2).
    Subsection (p) requires that when a postmining pollutional 
discharge develops, the operator must provide Pennsylvania with a 
separate bond or financial assurance to cover long-term treatment 
costs. The requirement for separate bond mechanisms for long-term 
treatment of pollutional discharges is no less effective than the 
Federal regulations at 30 CFR 800.40(c)(3), which stipulate that no 
bond can be fully released until the operator meets all reclamation 
requirements. By helping to ensure coverage of all reclamation 
liability, including the often late-arising liability associated with 
discovery of pollutional discharges, it is also no less stringent than 
section 509(a) of SMCRA, 30 U.S.C. 1259(a), which requires a bond 
``sufficient to assure the completion of the reclamation plan if the 
work had to be performed by the regulatory authority . . . .''
    Subsections (q) through (s) establish the procedures for bond 
forfeiture under the LRFG program. In such cases, Pennsylvania will 
declare forfeiture of the financial guarantee and the operator's other 
performance bonds and use the money to complete reclamation of the 
site. The forfeiture declaration will not discharge the operator's 
obligation to meet other requirements under the Pennsylvania regulatory 
program. These procedures are identical to the Federal regulation at 30 
CFR 800.50 and are therefore as effective as those regulations.
    Subsection (t) provides that Pennsylvania may suspend issuance of 
financial guarantees when the number of participating permits declared 
forfeit equals the number of participating permits multiplied by the 
historical forfeiture rate, plus a margin of safety. This subsection 
also provides that Pennsylvania may resume the financial guarantee 
program after evaluating and approving adequate funding levels with 
advice from the Mining and Reclamation Advisory Board. Subsection (u) 
provides that Pennsylvania will discontinue issuance of financial 
guarantees if 25 percent or more of the outstanding bond obligations 
for LRFGs are declared forfeit under section 86.181. Subsection (v) 
provides that Pennsylvania will not approve additional financial 
guarantees after the program is discontinued and that outstanding 
financial guarantees will remain in effect until released. We have 
determined that subsections (t), (u), and (v) have no direct Federal 
counterpart, but because they operate as additional mechanisms to 
promote solvency of the LRFG Account, we deem them no less effective 
than the Federal regulations at 30 CFR 800.11(e). The ability to 
suspend or discontinue issuance of financial guarantees to protect the 
solvency of the fund is consistent with the Federal regulations at 30 
CFR 800.11(e)(1).
    Section 86.162b includes numerous provisions implementing the LRFG 
Account and ensuring orderly program administration. Subsections (a) 
through (v) detail these additions and, as described in this Finding, 
are consistent with SMCRA and achieve the objectives of 30 CFR 
800.11(e). For all these reasons, we are approving the addition of 
section 86.162b.

Finding 5: 25 Pa. Code 86.165. Failure To Maintain Proper Bond

    Pennsylvania revised this section to add a provision that if an 
operator fails to pay annual premiums for LRFGs as

[[Page 64794]]

required by section 86.162b, then Pennsylvania will issue a notice of 
violation. If the operator does not correct the violation within 15 
days of the notice, Pennsylvania will issue a cessation order.
    OSMRE Finding: We have determined that the provision in this 
section does not have a Federal counterpart. However, the provision 
aids Pennsylvania in assuring LRFG Account solvency, and we deem it no 
less effective than the Federal regulation at 30 CFR 800.11(e)(1). 
Therefore, we are approving the change to 25 Pa. Code 86.165(a).

Finding 6: 25 Pa. Code 86.187. Use of Money

    Pennsylvania revised this section to remove a reference to sum-
certain financial guarantees under the predecessor program and replace 
it with a reference to LRFGs as implemented by section 86.162b. This 
replacement allows Pennsylvania to deposit fees collected for the LRFGs 
into the Trust Account. In conjunction with section 86.162b, the 
changes in section 86.187 referencing the LFRG allow the transfer of 
fees from the CAP. This section also changes a citation to PASMCRA to 
reflect the addition of 52 P.S. 1396.19b and changes `monies' to 
`moneys.'
    OSMRE Finding: We have determined that the reference to the LRFGs 
does not have a direct Federal counterpart. However, it accommodates 
the change from the previous CAP to the new LRFG program approved in 
Finding 4 and provides an additional mechanism to ensure solvency, 
consistent with 30 CFR 800.11(e). The other changes are non-substantive 
and require no findings. Therefore, we are approving the changes to 25 
Pa. Code 86.187(a) and (a)(iii).

Provisions on Bioenergy Crop Bonding

Finding 7: Subsection 4(a)(2)(C) of PASMCRA

    Pennsylvania, through Act 95, revised section 4 of PASMCRA by 
adding a sentence at the end of subsection 4(a)(2)(C) directing PADEP 
to encourage and promote the use of various bioenergy crops, including 
switchgrass, camelina, and canola for the revegetation of surface 
mining sites and providing that Pennsylvania will consider such sites 
to have a postmining land use of cropland.
    OSMRE Finding: We have determined that these changes are no less 
stringent than SMCRA and no less effective than its implementing 
regulations. Section 515(b)(19) of SMCRA (30 U.S.C. 1265(b)(19)) states 
that all surface mining operations must establish a diverse, effective, 
and permanent vegetative cover of a native variety, except that 
introduced species may be used where desirable and necessary to achieve 
the approved postmining land use. Further, Section 515(b)(20) of SMCRA 
(30 U.S.C. 1265(b)(20)) states that when the regulatory authority 
approves an agricultural postmining land use, the authority may grant 
exceptions to the provisions of section 515(b)(19). Directing PADEP to 
encourage and promote the use of bioenergy fuels is consistent with 
these statutory provisions. We conclude that Pennsylvania's proposal to 
promote agricultural postmining land use in the form of bioenergy crops 
is no less stringent than SMCRA, and we are approving the changes to 
section 4(a)(2)(C) of PASMCRA.

Finding 8: Section 4.14 of PASMCRA

    Pennsylvania revised PASMCRA by adding section 4.14, which directs 
PADEP to make available sum-certain financial guarantees to cover Stage 
III reclamation liability for remining sites revegetated with bioenergy 
crops, to the extent that funds are available for the financial 
guarantees. Pennsylvania describes the implementation of the financial 
guarantees in additional statutory changes and in new chapters of the 
Pennsylvania Code.
    OSMRE Finding: We have determined that this section has no direct 
Federal counterpart but is no less effective than the Federal 
regulations at 30 CFR 800.13 (regarding the duration of performance 
bond liability), 800.30 (governing approval of replacement bonds), and 
816.116 (providing standards for successful revegetation). The 
effectiveness of this statutory provision is enhanced by its operating 
in conjunction with the proposed regulations in subsection 86.162c, 
which implement the bioenergy provisions of Act 95, as discussed in 
Finding 9. Therefore, we are approving the addition of section 4.14 of 
PASMCRA.

Finding 9: 25 Pa. Code 86.162c

    Pennsylvania added this section to chapter 86 of its administrative 
code, providing for the issuance of financial guarantees in the form of 
bioenergy crop bonding. Section 86.162c would provide operators at 
remining sites with an incentive to plant bioenergy crops, consistent 
with section 4.14 of PASMCRA. Pennsylvania releases bonds in three 
stages. Stage 1 release occurs after the site has been regraded to the 
approximate original contour and drainage control installation has 
occurred. Stage 2 release occurs after successful revegetation of the 
permit area. Stage 3 release occurs after final completion of the 
reclamation plan and a minimum of five years following Stage 2 bond 
release. The proposed bioenergy crop bond would release the operator's 
Stage 3 bonds and replace them with a financial guarantee.
    Paragraph (a) describes the eligibility requirements for the bond. 
Operators may apply for the bioenergy crop bonding at remining sites 
after Stage 2 bond release and after demonstrating successful growth of 
bioenergy crops including switchgrass, camelina, and canola. Operators 
may not apply for bioenergy crop bonding if water treatment liability 
has been triggered under Pennsylvania's regulations on remining areas 
with pollutional discharges.
    Paragraph (b) describes the application requirements for the bond. 
Applications must include verification that the permitted area has 
achieved Stage 2 bond release, demonstration that the operator is 
growing bioenergy crops at an acceptable yield, demonstration that 
temporary structures have been reclaimed, that there are no postmining 
pollutional discharges or that all liabilities for discharges are 
covered with a full-cost bond, and a statement that the operator 
intends to apply for release of bioenergy crop bonding in a timely 
manner.
    Paragraphs (c) through (f) establish the procedures for approving 
bioenergy crop bonding. Only after approval may Pennsylvania release 
the operator's existing Stage 3 bond. Bioenergy crop bonding cannot 
exceed five years and will expire within 120 days of the expiration of 
the liability period. If final bond release does not occur until after 
expiration of bioenergy crop bonding, replacement bioenergy crop 
bonding is required.
    OSMRE Finding: We have determined that this section has no direct 
Federal counterpart. However, after considering the probable effects of 
this section on the overall Pennsylvania program, we find that this 
section is no less effective than the Federal regulations, in 
particular, 30 CFR 800.11(e)(2) (requiring incentives for reclamation 
compliance), 800.13 (regarding the duration of performance bond 
liability), 800.30 (governing approval of replacement bonds), and 
816.116 (providing standards for successful revegetation).
    Subsection 86.162c implements the statutory provisions in section 
4.14 of PASMCR, which establishes bioenergy crop bonding as a financial 
incentive to encourage the growth of bioenergy crops at remining sites. 
To provide a

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substantial incentive, Pennsylvania is providing full-cost guarantees 
to replace the operator's Stage 3 liability. We conclude this incentive 
is no less effective than the Federal regulations at 30 CFR 
800.11(e)(2) requiring substantial incentives for reclamation 
compliance. Because the full cost of reclamation is covered by this 
guarantee, the bond replacement is no less effective than the Federal 
regulations at 30 CFR 800.30. Further, bioenergy crop bonding 
liabilities are funded by separate general appropriations. Therefore, 
forfeiture and reclamation costs at bioenergy crop bonding sites will 
not affect the overall funding levels of the Pennsylvania regulatory 
program. The requirement for Stage 2 bond release to occur before 
approving bioenergy crop bonding and the restriction against long-term 
pollutional discharges in the program further limit Pennsylvania's risk 
and ensure that the operator has already committed to bioenergy crop 
growth at the site.
    We conclude the minimum five-year liability period for bioenergy 
crop bonding is no less effective than 30 CFR 816.116(c)(2), which 
requires that sites which receive at least 26 inches of annual average 
precipitation have liability periods of five years, except in the case 
of remining sites, where the period of liability is two years. Further, 
subsection 816.116(b)(5) of the Federal regulations requires vegetation 
at remining sites to match or exceed the previous extent of ground 
cover and be adequate to control erosion. The density of vegetation in 
a cropland safely meets these standards. For these reasons, we are 
approving section 86.162c.

Minor Statutory and Regulatory Changes

    There were numerous non-substantive changes as to which OSMRE makes 
no findings. These changes may be found in PADEP's July 26, 2017, 
letter (Administrative Record No. PA 900.00) (pp. 3 to 29).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment and did not receive 
any during the comment period.

Federal Agency Comments

    On August 7, 2017, 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 900.01). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.). None of the revisions that Pennsylvania proposed 
to make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
August 7, 2017, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA on the amendment (Administrative Record No. PA 900.01). 
The EPA responded on December 11, 2017 (Administrative Record No. PA 
900.03) with no comments on the amendment.

State Historical 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 ACHP on amendments that may have an effect on historic 
properties. On August 7, 2017, we requested comments on the 
Pennsylvania amendment (Administrative Record No. 900.01). Neither the 
SHPO nor ACHP responded with any comments.

V. OSMRE's Decision

    Based on the above findings, we are approving the Pennsylvania 
amendment sent to us on July 26, 2017 (Administrative Record No. PA 
900.00). To implement this decision, we are amending the Federal 
regulations at 30 CFR part 938 that codify decisions concerning the 
Pennsylvania program. In accordance with the Administrative Procedure 
Act, this rule will take effect 30 days after the date of publication.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review. 13563--
Improving Regulation and Regulatory Review, 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs in the 
Office of Management and Budget (OMB) will review all significant 
rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program amendments is exempted from OMB 
review under Executive Order 12866, as amended by Executive Order 
14094. Executive Order 13563, which reaffirms and supplements Executive 
Order 12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3 of Executive Order 12988. The Department determined that 
this Federal Register notice meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
order did not extend to the language of the State regulatory program or 
to the program amendment that Pennsylvania drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Pennsylvania, through its approved 
regulatory program, implements and administers SMCRA and its 
implementing regulations at the State level. This rule approves an 
amendment to the Pennsylvania State program submitted and drafted by 
the State, and

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thus is consistent with the direction to provide maximum administrative 
discretion to States.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
The basis for this determination is that our decision on the 
Pennsylvania program does not include Indian lands, as defined by 
SMCRA, or regulation of activities on Indian lands. Indian lands are 
regulated independently under the applicable Federal program. The 
Department's consultation policy also acknowledges that our rules may 
have Tribal implications where the State proposing the amendment 
encompasses ancestral lands in areas with mineable coal. We are 
currently working to identify and engage appropriate Tribal 
stakeholders to devise a constructive approach for consulting on these 
amendments.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not 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 include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject 
of this rule, is based upon corresponding Federal regulations for which 
an economic analysis was prepared and certification made that such 
regulations would not have a significant economic effect upon a 
substantial number of small entities. 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 corresponding 
Federal regulations.

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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.

    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. 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.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
July 26, 2017........................  August 8, 2024.........  PASMCRA sec. 4(d), 19.2 Authorizing LRFG
                                                                 program; PASMCRA sec. 4(a)(2)(C), 4.14,
                                                                 authorizing bioenergy crop bonding; PASMCRA
                                                                 sec. 3 definitions, 18(a.1), 19, minor changes;
                                                                 25 Pa. Code 86.17(e)(2), 86.162b, 86.165(a) and
                                                                 (a)(iii), implementing the LRFG program; 25 Pa.
                                                                 Code 86.162c, implementing the bioenergy crop
                                                                 bonding program; 25 Pa. Code 86.1 definition of
                                                                 Acts, 86.6(a), 86.12(a)(3), 86.121, 86.155,
                                                                 86.159(k)(2)(A), 86.182(h)(2), 86.185, 86.232
                                                                 definition of coal mining laws, 86.252
                                                                 definition of Act, 86.358(a)(3), 87.1
                                                                 definition of SMCRA, 87.205(b), 88.482
                                                                 definition of operator, 88.505(b), 89.5
                                                                 definition of operator, and 90.305(b), citation
                                                                 changes and other minor changes.
----------------------------------------------------------------------------------------------------------------



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[FR Doc. 2024-17336 Filed 8-7-24; 8:45 am]
BILLING CODE 4310-05-P