Pennsylvania Regulatory Program, 25472-25491 [05-9570]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25472-25491]
From the Federal Register Online via the Government Printing 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: grieger@osmre.gov.

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