Pennsylvania Regulatory Program

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Part 938</CFR> <DEPDOC>[SATS No. PA-167-FOR; Docket ID: OSM-2017-0009; S1D1S SS08011000 SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]</DEPDOC> <SUBJECT>Pennsylvania Regulatory Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective September 9, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">bowens@osmre.gov,</E> Fax: (412) 937-2177. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background on the Pennsylvania Program</FP> <FP SOURCE="FP-2">II. Submission of the Amendment</FP> <FP SOURCE="FP-2">III. OSMRE's Findings</FP> <FP SOURCE="FP-2">IV. Summary and Disposition of Comments</FP> <FP SOURCE="FP-2">V. OSMRE's Decision</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the Pennsylvania Program</HD> 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. <E T="03">See</E> 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, <E T="04">Federal Register</E> (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. <HD SOURCE="HD1">II. Submission of the Amendment</HD> 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 <E T="03">et seq.</E> ). 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. <HD SOURCE="HD2">Statutory Changes</HD> <HD SOURCE="HD3">Mining Permit and Bioenergy Crop Bonding, Act 95 of 2012, House Bill 608</HD> 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. <E T="03">See</E> 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. <HD SOURCE="HD3">Mining Permit, Reclamation Plan, and Bond and Land Reclamation Financial Guarantees, Act 157 of 2012, House Bill 1813</HD> 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 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. <HD SOURCE="HD2">Regulatory Changes</HD> 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, <E T="04">Federal Register</E> (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. <HD SOURCE="HD1">III. OSMRE's Findings</HD> 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 <E T="03">www.regulations.gov.</E> <HD SOURCE="HD2">Finding 1: Section 4(d) of PASMCRA</HD> 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 <E T="03">Finding 2</E> and <E T="03">Finding 4.</E> <E T="03">OSMRE Finding:</E> 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 <E T="03">Finding 2</E> and <E T="03">Finding 4,</E> 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. <HD SOURCE="HD2">Finding 2: Section 19.2 of PASMCRA</HD> Pennsylvania, through Act 157, added section 19.2 to PASMCRA. <E T="03">See</E> 52 P.S. 1396.19b. Section 19.2 made LRFGs an acceptable form ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 51k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━