Rule2024-17336
Pennsylvania Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 8, 2024
Effective
September 9, 2024
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 153 (Thursday, August 8, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="/cdn-cgi/l/email-protection#7a18150d1f14093a150917081f541d150c"><span class="__cf_email__" data-cfemail="72101d05171c01321d011f00175c151d04">[email protected]</span></a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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
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