80 FR 55746 - Pennsylvania Regulatory Program
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement Federal Register Volume 80, Issue 180 (September 17, 2015)
Office of Surface Mining Reclamation and Enforcement
Federal Register Volume 80, Issue 180 (September 17, 2015)
| Page Range | 55746-55751 | |
| FR Document | 2015-23118 |
[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)] [Rules and Regulations] [Pages 55746-55751] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-23118] [[Page 55746]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [SATS No. PA-159-FOR; Docket No. OSM-2010-0017; S1D1S SS08011000 SX064A000 156S180110; S2D2S SS08011000 SX064A000 15XS501520] Pennsylvania Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) is removing a required amendment to the Pennsylvania regulatory program (the Pennsylvania program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). OSMRE has determined that the information submitted by Pennsylvania satisfies a previously required amendment regarding bonding in Pennsylvania. Therefore, OSMRE is removing the previously required amendment from the Pennsylvania program as Pennsylvania has demonstrated that its program is being administered in a manner consistent with SMCRA and the corresponding Federal regulations. DATES: Effective September 17, 2015. FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field Division; Telephone: (412) 937-2827, Email: [email protected]. SUPPLEMENTARY INFORMATION: I. Background on the Pennsylvania Program II. Description of the Submission III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. 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 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 this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this 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, effective July 31, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and the 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. Description of the Submission OSMRE published a final rule in the August 10, 2010, Federal Register (75 FR 48526), herein referred to as the 2010 final rule, requiring Pennsylvania ``to ensure that its program provides suitable, enforceable funding mechanisms that are sufficient to guarantee coverage of the full cost of land reclamation at all sites originally permitted and bonded under the [alternative bonding system (ABS)].'' This was codified in the Federal regulations at 30 CFR 938.16(h). OSMRE approved several changes in the 2010 final rule. However, OSMRE concluded that two sites, originally permitted and bonded under the ABS, held insufficient bonds after the conversion to a full cost bonding system to guarantee that the land would be reclaimed in the event forfeiture occurred. The two sites at issue are anthracite operations that were permitted by Lehigh Coal & Navigation (LCN) and Coal Contractors Inc. (CCI). Before the 2010 final rule was published, Pennsylvania had indicated that these two sites were bonded in an amount that was less than the full cost needed to complete reclamation in the event that forfeiture occurred. Although Pennsylvania contended that these sites were not reclamation liabilities, as the bond deficiency at both sites was being addressed through other means, OSMRE determined that Pennsylvania's approach to resolving this issue did not provide the same level of financial assurance as that guaranteed by posting a full cost bond. As a result, OSMRE revised 30 CFR 938.16(h), and required that Pennsylvania demonstrate that sufficient funds existed to ensure the land reclamation would be completed at the LCN and CCI sites. In response to OSMRE's 2010 final rule, Pennsylvania submitted information which it believed demonstrated that it is able to guarantee sufficient funds to cover the full reclamation costs at the LCN and CCI sites. After providing three submissions, Pennsylvania requests the removal of the required amendment. Each submission is discussed below. Submission No. 1: By letter dated October 1, 2010 (Administrative Record No. PA 802.72), Pennsylvania sent us a response as required by 30 CFR 938.16(h). We announced receipt of this submission in the February 7, 2011, Federal Register (76 FR 6587). 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 submission. OSMRE received comments, but did not hold a public hearing or meeting because neither was requested. The public comment period ended on March 9, 2011. In the first submission, Pennsylvania provided information that it believed demonstrated that available funds were more than sufficient to guarantee coverage of the full cost of land reclamation at the two sites. The information submitted to support Pennsylvania's contention included a demonstration of available funding, the Coal Contractors 2009 Annual Bond Review, LCN's annual bond review, updated estimates for the ABS bond forfeiture discharge treatment sites, and updated land reclamation estimates. Based on this information, Pennsylvania requested the removal of the previously required amendment. At the time of this submission, the following conditions existed: LCN Land Reclamation Estimate: $11,230,429 Current Bonds Available: $7,759,000 Additional Reclamation Funding Needed: $3,471,429 CCI Land Reclamation Estimate: $2,863,982 Current Bonds Available: $804,625 Additional Reclamation Funding Needed: $2,059,357 The submission indicated a balance of $19,496,955 in the Surface Mining Conservation and Reclamation Fund (SMCR Fund) that was available for ABS land and discharge treatment for ABS legacy sites. Projected expenses at the time for ABS land reclamation and discharge treatment (design and construction) was $12,877,636, leaving a balance of $6,619,319 available to address the reclamation funding needs of $5,530,786 for the LCN and CCI sites, if forfeited. Pennsylvania also stated that in the unlikely event that both of these sites would require expenditure of funds for land reclamation, then at least some of the cost for the design and construction of the ABS bond forfeiture discharge treatment facilities would be paid for using the Reclamation Fee Operation and Maintenance account (RFO&M account). There was approximately $1 [[Page 55747]] million of immediately available funds in this account that could be used for this purpose exclusively. Pennsylvania believed that this demonstration of available funding warranted removal of the required amendment. Submission No. 2: On June 13, 2011 (Administrative Record No. PA 802.80), we received additional information from Pennsylvania regarding recent developments with the LCN site. The permit had been transferred to BET Associates IV, LLC (BET), resulting in the posting of a full cost bond in an amount to cover the land reclamation obligation. We announced this submission in the October 17, 2011, Federal Register (76 FR 64048). 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 submission. OSMRE received comments, but did not hold a public hearing or meeting because neither was requested. The public comment period ended on November 1, 2011. Included in the second submission was the mining permit, Part C (Authorization to Mine), and the calculation sheet documenting the bond amount. At the time of this submission, the following conditions existed: LCN Land Reclamation Estimate: $10,523,000 Current Bonds Available: $10,523,000 Additional Reclamation Funding Needed: $0 Submission No. 3: On November 6, 2012, we received additional information from Pennsylvania regarding recent developments involving the CCI permit bonding status (Administrative Record No. PA 802.85). We announced receipt of this submission in the February 19, 2013, Federal Register (78 FR 11617). 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 submission. OSMRE received comments, but did not hold a public hearing or meeting because neither was requested. The public comment period ended on March 6, 2013. The third submission included a letter to the operator regarding the annual bond review, along with the supporting documentation supporting the review, which included the annual bond calculation summary. At the time of this submission, the following conditions existed: CCI Land Reclamation Estimate: $403,691 Current Bonds Available: $804,625 Additional Reclamation Funding Needed: $0 After three submissions, Pennsylvania believed it had provided sufficient information as required by OSMRE to satisfy the 30 CFR 938.16(h) requirements. As a result, Pennsylvania requested that OSMRE remove the previously required amendment. III. OSMRE's Findings Discussed below are our findings concerning this request to remove a previously required amendment to the Pennsylvania program pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. After reviewing the information submitted, OSMRE is removing the previously required amendment that was codified at 30 CFR 938.16(h). OSMRE finds that Pennsylvania demonstrated through its bonding calculations and reclamation estimates that sufficient funds are available to guarantee coverage of the reclamation needs at the LCN and CCI sites, in satisfaction of the previously required amendment. Therefore, we are approving this request to remove paragraph (h) of 30 CFR 938.16. IV. Summary and Disposition of Comments Public Comments We asked for public comments on each of the three submissions. No requests for public meetings were received. On March 5, 2013, we received comments from a group of citizen organizations collectively known as ``the Federation,'' which represents six organizations: (1) Citizens for Pennsylvania's Future (PennFUTURE), (2) Pennsylvania Federation of Sportsmen's Clubs, Inc., (3) Sierra Club, (4) Pennsylvania Council of Trout Unlimited, (5) Center for Coalfield Justice, and (6) Mountain Watershed Association. PennFUTURE serves as legal counsel for these organizations with respect to alleged inadequacies of Pennsylvania's bonding program and continues to serve in that capacity by responding to related matters, such as this program amendment. PennFUTURE provided comments on Pennsylvania's initial submission, which we responded to in the 2010 final rule (Administrative Record No. PA 802.43). In addition to the March 5, 2013, comments (Administrative Record No. PA 802.88) on the latest submission from Pennsylvania, PennFUTURE also submitted comments on March 9, 2011 (Administrative Record No. PA 802.79), regarding the initial October 1, 2010, submission and on November 1, 2011 (Administrative Record No. PA 802.83), regarding Pennsylvania's first supplemental submission dated June 13, 2011 (Administrative Record No. PA 802.80), concerning the LCN site. PennFUTURE originally contended that the program amendment submission was deficient for various reasons. As noted in our findings, however, subsequent events occurred after the original submission, which affected the financial solvency and prior bond deficiency at the two sites. Since the comments submitted by PennFUTURE have largely restated its earlier comments, OSMRE is addressing those comments still applicable. We are addressing the March 5, 2013, comments first and they are as follows: A. The CCI Site PennFUTURE submitted previous comments regarding the adequacy of this site. However, subsequent to the receipt of those comments, PennFUTURE now agrees that, as a result of the reclamation work performed at the CCI site since Submission No. 1, the site finally appears to have an enforceable, full cost reclamation guarantee in place considering the current bond amount and the estimated cost to complete reclamation of the site. Since the most recent bond calculation summary submitted (revised summary for 2011) was prepared, PennFUTURE recommends that OSMRE review CCI's annual bond calculation summary for 2012 to confirm that the site is adequately bonded. OSMRE's Response: On August 20, 2013, Pennsylvania advised OSMRE that the CCI site had been backfilled and graded, with five acres to be seeded in the fall of 2013. There has been no corresponding bond reduction. The amount remains $804,625, which is sufficient to complete reclamation (Administrative Record No. PA 802.65). B. The LCN Site/Perpetual Post-Mining Discharge and Land Reclamation Bond According to PennFUTURE, Pennsylvania has not demonstrated that an enforceable, full cost land reclamation guarantee exists for the LCN site because there is no fully funded guarantee of perpetual treatment for the LCN site's post-mining discharge. PennFUTURE asserts that the perpetual post-mining discharge from the LCN site puts the adequacy of the treatment trust for that discharge directly at issue in this program amendment proceeding. As a result, PennFUTURE contends that OSMRE must decide a number of issues concerning Pennsylvania's implementation of treatment trusts raised in PennFUTURE's February 27, [[Page 55748]] 2009, comments on Pennsylvania's August 1, 2008, proposed ABS program amendment (Administrative Record No. PA 802.60). PennFUTURE states that $8,423,000 is needed for land reclamation only and does not apply to discharges. The perpetual post-mining discharge from the LCN site puts the adequacy of the treatment trust for that discharge directly at issue in this proceeding. In order to demonstrate that the surety reclamation bond for the LCN site fully guarantees all land reclamation at the site and will not be used to address mine drainage treatment liability, Pennsylvania must demonstrate that the treatment trust for the LCN site is both adequate in amount and fully funded, which it has failed to do as explained below. PennFUTURE states that its November 1, 2011, comments on Pennsylvania's first supplemental program amendment submission included the May 5, 2011, Post-Mining Treatment Trust Consent Order and Agreement between Pennsylvania and BET (BET Trust CO&A), which established a payment schedule for funding a perpetual treatment trust. PennFUTURE states that its comments showed that Pennsylvania had failed to demonstrate that the surety bond posted by BET fully guarantees all outstanding land reclamation at the LCN site because it had failed to demonstrate that an adequate and fully funded trust is in place that guarantees perpetual treatment of the post-mining discharge from the LCN site. PennFUTURE's earlier comment letter concluded: ``Under Pennsylvania's approved regulatory program, surety bonds cover all varieties of potential reclamation liabilities at a permitted coal mine. Thus, until a fully funded treatment trust is in place that fully guarantees perpetual treatment of the post-mining discharge from the LCN site, the $8,423,000 surety bond posted by BET is stretched too thin, covering an estimated $8,423,000 in land reclamation liability plus perhaps an equivalent amount in mine drainage treatment liability. As a result, the surety bond currently does not provide fully, dollar- for-dollar coverage of the potential land reclamation liabilities at the LCN site. [Pennsylvania] therefore has not carried its burden of demonstrating that the combination of BET's surety bond and the transferred [Land Reclamation Financial Guarantees (LRFG)] `are sufficient to guarantee coverage of the full cost of land reclamation' at the LCN site.'' PennFUTURE states that for any primacy mine with a post-mining discharge, like the LCN site, the conventional reclamation bond covers both the outstanding land reclamation obligation and the outstanding discharge treatment obligation, unless and until the mine operator posts a treatment trust or other financial guarantee that is both: (1) Adequate in amount to provide perpetual treatment and (2) fully funded. It follows that in order to find that the surety bond posted by BET for the LCN site is unencumbered by any potential mine drainage treatment liability, and therefore, is adequate to fully guarantee the outstanding land reclamation liability, OSMRE must find that the treatment trust for the LCN site is both (1) adequate in amount to provide perpetual treatment and (2) fully funded. PennFUTURE goes on to comment about the calculation and assumptions used to estimate the valuing of trust assets to derive a treatment trust amount that results in financial solvency. These issues were raised in detail in their 2009 comments on Pennsylvania's initial submission. PennFUTURE further asserts that the current program amendment presents, concretely for one specific mine, the issues OSMRE declined to address in the abstract, for a range of potential future scenarios, in ruling on the ABS program amendment in the 2010 final rule. PennFUTURE references several developments relevant to the adequacy and funding status of the LCN site treatment trust since the submission of their last comment letter on November 1, 2011. The developments include the LCN site's pollutant discharge limits and PennFUTURE's submission of comment letters detailing the reasons why the pollutant loads and effluent limitations Pennsylvania proposed for relocating discharge from the LCN site are excessive. PennFUTURE further states that correcting those errors and reducing the allowable pollutant loads and applicable effluent limitations will increase the estimated costs of treating the discharge from the LCN site and thus, the required amount of the treatment trust. Additionally, PennFUTURE also references the completion of a 2012 OSMRE report documenting a review of the Al Hamilton Treatment Trust Fund. While this report is not directly related to the LCN site, PennFUTURE provides it as an example of perceived trust inadequacies. This report documents that when the trust was established in 2003, roughly half of its assets were coal reserves that now appear to be valueless, leaving the primary portion of the trust at only a fraction of the value required to provide adequate and perpetual treatment of the dozens of mine discharges it covers. In reference to OSMRE's Al Hamilton Trust Fund Report attached in its letter dated March 5, 2013, PennFUTURE stated that the fractional funding of the trust has forced Pennsylvania ``to triage and prioritize the systems needing attention, to spread out the expenditures to reduce the financial stress,'' leaving some discharges wholly or partially untreated and others lacking adequate treatment. PennFUTURE states that the harsh lessons provided by this example are that something appearing to have great value today may, in fact, be worthless when needed in the future, and that for a financial mechanism that is required to provide a rock-solid, perpetual guarantee, only money in the bank qualifies as money in the bank. In light of this concern, no discharge treatment trust should be considered fully funded--that is, to provide the iron-clad reclamation guarantee required by law--unless the primary portion of the trust consists of cash or assets that are easily and immediately convertible to cash. PennFUTURE states that when Pennsylvania enters into a CO&A with a mine operator establishing a payment schedule for funding a treatment trust, it typically does not immediately consider the trust fully funded based on the operator's documented payment obligation. To the contrary, it is only when the mine operator makes the final payment and the trustee has the cash in hand that Pennsylvania changes the designation from ``payment plan'' to ``fully funded''. According to PennFUTURE, the inability to market the Al Hamilton Treatment Trust's coal reserves shows that any trust asset that is not easily and immediately convertible to cash is something like a payment plan--it may or may not deliver the expected value when the time comes. Just as a payment plan trust is not considered fully funded until the last payment is delivered, PennFUTURE states that any trust containing an asset like coal reserves may not be considered fully funded until the asset actually delivers its estimated value by being converted to cash. OSMRE's Response: Pennsylvania's regulations require adjustment of the reclamation fee, which is deposited into the RFO&M account, to cover any increased costs of water treatment for all ABS forfeited sites in any given year. Pennsylvania's annual adjustments to the reclamation fee amount will be evaluated by OSMRE through its oversight authority. In short, the [[Page 55749]] regulations create the mandate to fully fund discharge treatment costs for all existing and potential ABS legacy sites in perpetuity. Therefore, should the LCN site-specific bond be forfeited, the entire amount of that bond will be used for land reclamation and treatment costs and will be covered by the treatment trust and supplemented, if necessary, by the adjustable reclamation fee. As noted above, sufficient funds exist in the site-specific bond to cover land reclamation costs. In an email dated June 18, 2013, Pennsylvania, at our request, provided the 2012 annual bond calculation, which indicated a reclamation obligation of $10,448,389 as well as a surplus of $74,611 at the LCN site (Administrative Record No. PA 802.89). Pennsylvania has demonstrated that its program provides suitable, enforceable funding mechanisms sufficient to guarantee the full cost of land reclamation at all sites originally permitted and bonded under the ABS, in accordance with 30 CFR 938.16(h). Therefore, the previously required amendment can be removed. C. The LCN Site's Trust Fund Adequacy PennFUTURE asserts that OSMRE cannot find that the land reclamation at the LCN site is fully guaranteed unless it also finds that perpetual treatment of the mine drainage discharge from the LCN site is fully guaranteed. PennFUTURE states that in addition to being fully funded, a treatment trust must be adequate in amount to provide the firm guarantee of perpetual treatment required by law. Thus, in order to find that the treatment of the discharge from the LCN site is fully guaranteed (which, as explained above, is a prerequisite to finding that the reclamation of the land at the LCN site is fully guaranteed), OSMRE must determine whether Pennsylvania, in calculating the amount of the BET/LCN site trust, applied assumptions and methods that yield a dollar figure that is sufficient to provide the required firm guarantee of perpetual treatment. PennFUTURE claims that the first complication is that Pennsylvania cannot, at this point, accurately project the treatment costs because it has yet to set the effluent limit targets that such treatment will be required to meet, much less to approve the installation of the new treatment system(s) that will be designed to meet them. PennFUTURE additionally asserts that the BET Trust CO&A estimated the present discounted value for perpetual operation and maintenance of the Mine's ``New Treatment System(s)'' at $13.8 million a year before Pennsylvania produced a draft of the National Pollutant Discharge Elimination System (NPDES) permit revision that would govern the new system's discharge. However, according to PennFUTURE, the effluent limitations in the final revision of the NPDES permit must be more stringent than those proposed in Pennsylvania's draft of the permit. The second complication, according to PennFUTURE, is that the requirement that the amount of the trust be sufficient to provide a firm guarantee of perpetual treatment forces OSMRE to address all of the issues concerning the inadequacy of Pennsylvania treatment trusts raised in our coalition's February 27, 2009, comments on the 2008 ABS program amendment. PennFUTURE claims that OSMRE declined to address those issues in the abstract across a multitude of potential scenarios in its 2010 final rule on the ABS program amendment. 75 FR 48526. Now, however, the abstract has been made concrete and the programmatic concern has been reduced to a single, specific case. In short, PennFUTURE believes that the issues are squarely and concretely presented and OSMRE must decide them in order to rule on the adequacy of the reclamation guarantee for the LCN site. PennFUTURE incorporates by reference all earlier comments concerning the deficiencies of Pennsylvania's trust fund calculations, along with the many exhibits supporting those comments. Issues addressed in those earlier comments included trust fund volatility, trust investment portfolio composition, treatment trust portfolio rates of return, and the 75-year recapitalization cost calculation. OSMRE's Response: As we addressed in our response above, Pennsylvania's regulations require adjustment of the reclamation fee to fully fund discharge treatment costs for all ABS forfeited sites. In the event that the LCN site-specific bond is forfeited, the entire bond amount will be used for land reclamation and treatment costs will be covered by the treatment trust and supplemented by the adjustable reclamation fee, if necessary. In an email dated June 18, 2013, Pennsylvania, at our request, indicated that the 2012 bond calculation amount for the LCN site is $10,448,389. Further, documentation was provided that indicated a surplus of $74,611 at the site (Administrative Record No. PA 802.89). Thus, Pennsylvania has demonstrated that its program provides suitable, enforceable funding mechanisms sufficient to guarantee the full cost of land reclamation at all sites originally permitted and bonded under the ABS, in accordance with 30 CFR 938.16(h). Therefore, the previously required amendment can be removed. As we addressed in our findings above, Pennsylvania's submissions satisfy the requirements set forth in the previously required amendment and demonstrate the existence of sufficient funds to guarantee coverage of the full cost of land reclamation at both the LCN and CCI sites. Therefore, OSMRE is removing the previously required amendment, at subsection (h) of 30 CFR 938.16. Federal Agency Comments On October 5, 2010, under the Federal regulations at 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 802.73). We received a response of no comment from the Mine Safety and Health Administration on October 18, 2010 (Administrative Record No. PA 802.74). No other comments were received, with the exception noted below. 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, we received comments from EPA on November 12, 2010, regarding the submission (Administrative Record No. PA 802.76). EPA concluded that the submission was limited to land reclamation. EPA, however, mentioned that well-funded bonding programs are necessary to provide for post- mining treatment, prevent perpetual post-mining drainage problems, as well as protect the hydrologic balance and ensure compliance with water quality standards. In response to EPA's comments, OSMRE agrees that an adequately funded bonding program is crucial to prevent post-mining pollutional discharges. V. OSMRE's Decision Based on the above findings, we are removing the previously required amendment at 30 CFR 938.16(h). To implement this decision, we are amending the Federal regulations, at 30 [[Page 55750]] CFR part 938, that codify decisions concerning the Pennsylvania program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630--Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866--Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866. Executive Order 12988--Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132--Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to ``establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.'' Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be ``in accordance with'' the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations ``consistent with'' regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175--Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands. Executive Order 13211--Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior certifies that 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 counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: May 22, 2015. Thomas D. Shope, Regional Director, Appalachian Region. Editorial Note: This document was received for publication by the Office of Federal Register on September 10, 2015. For the reasons set out in the preamble, 30 CFR part 938 is amended as follows: [[Page 55751]] PART 938--PENNSYLVANIA 0 1. The authority citation for Part 938 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. Sec. 938.16 [Amended] 0 2. Section 938.16 is amended by removing and reserving paragraph (h). [FR Doc. 2015-23118 Filed 9-16-15; 8:45 am] BILLING CODE 4310-05-P
![55746 Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations
DEPARTMENT OF THE INTERIOR 1982. You can find background Submission No. 1: By letter dated
information on the Pennsylvania October 1, 2010 (Administrative Record
Office of Surface Mining Reclamation program, including the Secretary’s No. PA 802.72), Pennsylvania sent us a
and Enforcement findings, the disposition of comments, response as required by 30 CFR
and the conditions of approval of the 938.16(h). We announced receipt of this
30 CFR Part 938 Pennsylvania program in the July 30, submission in the February 7, 2011,
[SATS No. PA–159–FOR; Docket No. OSM–
1982, Federal Register (47 FR 33050). Federal Register (76 FR 6587). In the
2010–0017; S1D1S SS08011000 SX064A000 You can also find later actions same document, we opened the public
156S180110; S2D2S SS08011000 concerning the Pennsylvania program comment period and provided an
SX064A000 15XS501520] and program amendments at 30 CFR opportunity for a public hearing or
938.11, 938.12, 938.13, 938.15, and meeting on the adequacy of the
Pennsylvania Regulatory Program 938.16. submission. OSMRE received
AGENCY: Office of Surface Mining II. Description of the Submission comments, but did not hold a public
Reclamation and Enforcement, Interior. hearing or meeting because neither was
OSMRE published a final rule in the requested. The public comment period
ACTION: Final rule. August 10, 2010, Federal Register (75 ended on March 9, 2011.
FR 48526), herein referred to as the 2010 In the first submission, Pennsylvania
SUMMARY: The Office of Surface Mining final rule, requiring Pennsylvania ‘‘to
Reclamation and Enforcement (OSMRE) provided information that it believed
ensure that its program provides demonstrated that available funds were
is removing a required amendment to suitable, enforceable funding
the Pennsylvania regulatory program more than sufficient to guarantee
mechanisms that are sufficient to coverage of the full cost of land
(the Pennsylvania program) under the guarantee coverage of the full cost of
Surface Mining Control and reclamation at the two sites. The
land reclamation at all sites originally information submitted to support
Reclamation Act of 1977 (SMCRA or the permitted and bonded under the
Act). OSMRE has determined that the Pennsylvania’s contention included a
[alternative bonding system (ABS)].’’ demonstration of available funding, the
information submitted by Pennsylvania This was codified in the Federal
satisfies a previously required Coal Contractors 2009 Annual Bond
regulations at 30 CFR 938.16(h). OSMRE Review, LCN’s annual bond review,
amendment regarding bonding in approved several changes in the 2010
Pennsylvania. Therefore, OSMRE is updated estimates for the ABS bond
final rule. However, OSMRE concluded forfeiture discharge treatment sites, and
removing the previously required that two sites, originally permitted and
amendment from the Pennsylvania updated land reclamation estimates.
bonded under the ABS, held insufficient Based on this information, Pennsylvania
program as Pennsylvania has bonds after the conversion to a full cost
demonstrated that its program is being requested the removal of the previously
bonding system to guarantee that the required amendment.
administered in a manner consistent land would be reclaimed in the event
with SMCRA and the corresponding At the time of this submission, the
forfeiture occurred. following conditions existed:
Federal regulations. The two sites at issue are anthracite
operations that were permitted by LCN Land Reclamation Estimate:
DATES: Effective September 17, 2015.
Lehigh Coal & Navigation (LCN) and $11,230,429
FOR FURTHER INFORMATION CONTACT: Ben Current Bonds Available: $7,759,000
Owens, Chief, Pittsburgh Field Division; Coal Contractors Inc. (CCI). Before the
2010 final rule was published, Additional Reclamation Funding
Telephone: (412) 937–2827, Email: Needed: $3,471,429
bowens@osmre.gov. Pennsylvania had indicated that these
two sites were bonded in an amount CCI Land Reclamation Estimate:
SUPPLEMENTARY INFORMATION: $2,863,982
that was less than the full cost needed
I. Background on the Pennsylvania Program Current Bonds Available: $804,625
II. Description of the Submission to complete reclamation in the event
that forfeiture occurred. Although Additional Reclamation Funding
III. OSMRE’s Findings
IV. Summary and Disposition of Comments Pennsylvania contended that these sites Needed: $2,059,357
V. OSMRE’s Decision were not reclamation liabilities, as the The submission indicated a balance of
VI. Procedural Determinations bond deficiency at both sites was being $19,496,955 in the Surface Mining
addressed through other means, OSMRE Conservation and Reclamation Fund
I. Background on the Pennsylvania (SMCR Fund) that was available for ABS
determined that Pennsylvania’s
Program land and discharge treatment for ABS
approach to resolving this issue did not
Section 503(a) of the Act permits a provide the same level of financial legacy sites. Projected expenses at the
State to assume primacy for the assurance as that guaranteed by posting time for ABS land reclamation and
regulation of surface coal mining and a full cost bond. As a result, OSMRE discharge treatment (design and
reclamation operations on non-Federal revised 30 CFR 938.16(h), and required construction) was $12,877,636, leaving a
and non-Indian lands within its borders that Pennsylvania demonstrate that balance of $6,619,319 available to
by demonstrating that its program sufficient funds existed to ensure the address the reclamation funding needs
includes, among other things, ‘‘a State land reclamation would be completed at of $5,530,786 for the LCN and CCI sites,
law which provides for the regulation of the LCN and CCI sites. if forfeited.
surface coal mining and reclamation In response to OSMRE’s 2010 final Pennsylvania also stated that in the
operations in accordance with the rule, Pennsylvania submitted unlikely event that both of these sites
requirements of this Act . . .; and rules information which it believed would require expenditure of funds for
and regulations consistent with demonstrated that it is able to guarantee land reclamation, then at least some of
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regulations issued by the Secretary sufficient funds to cover the full the cost for the design and construction
pursuant to this Act.’’ See 30 U.S.C. reclamation costs at the LCN and CCI of the ABS bond forfeiture discharge
1253(a)(1) and (7). On the basis of these sites. After providing three submissions, treatment facilities would be paid for
criteria, the Secretary of the Interior Pennsylvania requests the removal of using the Reclamation Fee Operation
conditionally approved the the required amendment. Each and Maintenance account (RFO&M
Pennsylvania program, effective July 31, submission is discussed below. account). There was approximately $1
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![55748 Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations
2009, comments on Pennsylvania’s discharge, like the LCN site, the the trust at only a fraction of the value
August 1, 2008, proposed ABS program conventional reclamation bond covers required to provide adequate and
amendment (Administrative Record No. both the outstanding land reclamation perpetual treatment of the dozens of
PA 802.60). obligation and the outstanding mine discharges it covers. In reference
PennFUTURE states that $8,423,000 is discharge treatment obligation, unless to OSMRE’s Al Hamilton Trust Fund
needed for land reclamation only and and until the mine operator posts a Report attached in its letter dated March
does not apply to discharges. The treatment trust or other financial 5, 2013, PennFUTURE stated that the
perpetual post-mining discharge from guarantee that is both: (1) Adequate in fractional funding of the trust has forced
the LCN site puts the adequacy of the amount to provide perpetual treatment Pennsylvania ‘‘to triage and prioritize
treatment trust for that discharge and (2) fully funded. It follows that in the systems needing attention, to spread
directly at issue in this proceeding. In order to find that the surety bond posted out the expenditures to reduce the
order to demonstrate that the surety by BET for the LCN site is financial stress,’’ leaving some
reclamation bond for the LCN site fully unencumbered by any potential mine discharges wholly or partially untreated
guarantees all land reclamation at the drainage treatment liability, and and others lacking adequate treatment.
site and will not be used to address therefore, is adequate to fully guarantee PennFUTURE states that the harsh
mine drainage treatment liability, the outstanding land reclamation lessons provided by this example are
Pennsylvania must demonstrate that the liability, OSMRE must find that the that something appearing to have great
treatment trust for the LCN site is both treatment trust for the LCN site is both value today may, in fact, be worthless
adequate in amount and fully funded, (1) adequate in amount to provide when needed in the future, and that for
which it has failed to do as explained perpetual treatment and (2) fully a financial mechanism that is required
below. funded. PennFUTURE goes on to to provide a rock-solid, perpetual
PennFUTURE states that its comment about the calculation and guarantee, only money in the bank
November 1, 2011, comments on assumptions used to estimate the qualifies as money in the bank. In light
Pennsylvania’s first supplemental valuing of trust assets to derive a of this concern, no discharge treatment
program amendment submission treatment trust amount that results in trust should be considered fully
included the May 5, 2011, Post-Mining financial solvency. These issues were funded—that is, to provide the iron-clad
Treatment Trust Consent Order and raised in detail in their 2009 comments reclamation guarantee required by law—
Agreement between Pennsylvania and on Pennsylvania’s initial submission. unless the primary portion of the trust
BET (BET Trust CO&A), which PennFUTURE further asserts that the consists of cash or assets that are easily
established a payment schedule for current program amendment presents, and immediately convertible to cash.
funding a perpetual treatment trust. concretely for one specific mine, the PennFUTURE states that when
PennFUTURE states that its Pennsylvania enters into a CO&A with
issues OSMRE declined to address in
comments showed that Pennsylvania a mine operator establishing a payment
the abstract, for a range of potential
had failed to demonstrate that the surety schedule for funding a treatment trust,
future scenarios, in ruling on the ABS
bond posted by BET fully guarantees all it typically does not immediately
outstanding land reclamation at the LCN program amendment in the 2010 final
consider the trust fully funded based on
site because it had failed to demonstrate rule.
the operator’s documented payment
that an adequate and fully funded trust PennFUTURE references several obligation. To the contrary, it is only
is in place that guarantees perpetual developments relevant to the adequacy when the mine operator makes the final
treatment of the post-mining discharge and funding status of the LCN site payment and the trustee has the cash in
from the LCN site. PennFUTURE’s treatment trust since the submission of hand that Pennsylvania changes the
earlier comment letter concluded: their last comment letter on November designation from ‘‘payment plan’’ to
‘‘Under Pennsylvania’s approved 1, 2011. The developments include the ‘‘fully funded’’.
regulatory program, surety bonds cover LCN site’s pollutant discharge limits According to PennFUTURE, the
all varieties of potential reclamation and PennFUTURE’s submission of inability to market the Al Hamilton
liabilities at a permitted coal mine. comment letters detailing the reasons Treatment Trust’s coal reserves shows
Thus, until a fully funded treatment why the pollutant loads and effluent that any trust asset that is not easily and
trust is in place that fully guarantees limitations Pennsylvania proposed for immediately convertible to cash is
perpetual treatment of the post-mining relocating discharge from the LCN site something like a payment plan—it may
discharge from the LCN site, the are excessive. PennFUTURE further or may not deliver the expected value
$8,423,000 surety bond posted by BET states that correcting those errors and when the time comes. Just as a payment
is stretched too thin, covering an reducing the allowable pollutant loads plan trust is not considered fully funded
estimated $8,423,000 in land and applicable effluent limitations will until the last payment is delivered,
reclamation liability plus perhaps an increase the estimated costs of treating PennFUTURE states that any trust
equivalent amount in mine drainage the discharge from the LCN site and containing an asset like coal reserves
treatment liability. As a result, the thus, the required amount of the may not be considered fully funded
surety bond currently does not provide treatment trust. Additionally, until the asset actually delivers its
fully, dollar-for-dollar coverage of the PennFUTURE also references the estimated value by being converted to
potential land reclamation liabilities at completion of a 2012 OSMRE report cash.
the LCN site. [Pennsylvania] therefore documenting a review of the Al OSMRE’s Response: Pennsylvania’s
has not carried its burden of Hamilton Treatment Trust Fund. While regulations require adjustment of the
demonstrating that the combination of this report is not directly related to the reclamation fee, which is deposited into
BET’s surety bond and the transferred LCN site, PennFUTURE provides it as the RFO&M account, to cover any
tkelley on DSK3SPTVN1PROD with RULES
[Land Reclamation Financial Guarantees an example of perceived trust increased costs of water treatment for all
(LRFG)] ‘are sufficient to guarantee inadequacies. This report documents ABS forfeited sites in any given year.
coverage of the full cost of land that when the trust was established in Pennsylvania’s annual adjustments to
reclamation’ at the LCN site.’’ 2003, roughly half of its assets were coal the reclamation fee amount will be
PennFUTURE states that for any reserves that now appear to be evaluated by OSMRE through its
primacy mine with a post-mining valueless, leaving the primary portion of oversight authority. In short, the
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![Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 / Rules and Regulations 55751
PART 938—PENNSYLVANIA Treasury Offset Program, a centralized what is specifically required by statute
offset program operated by Treasury’s and regulation. Because identification of
■ 1. The authority citation for Part 938 Bureau of the Fiscal Service (‘‘Fiscal the debt is already required, Fiscal
continues to read as follows: Service’’). Service has not incorporated this
Authority: 30 U.S.C. 1201 et seq. On January 28, 2011, Fiscal Service suggestion.
(then, the Financial Management
§ 938.16 [Amended] Service) published an interim rule with 2. Reasonable Efforts
■ 2. Section 938.16 is amended by request for comments at 76 FR 5070, The commenter suggested that this
removing and reserving paragraph (h). implementing this new authority. rule provide specific actions that states
Specifically, this rule amended Fiscal should take and state what
[FR Doc. 2015–23118 Filed 9–16–15; 8:45 am]
Service regulations to include documentation they should retain to
BILLING CODE 4310–05–P
unemployment compensation debts demonstrate that they have made
among the types of state debts that may reasonable efforts to collect a debt prior
be collected by tax refund offset. to pursuing Federal tax refund offset.
DEPARTMENT OF THE TREASURY The rule provides detail on what a
II. Summary of Comments Received reasonable effort includes—namely,
Fiscal Service and Treasury’s Responses making written demand on the debtor
Treasury sought comments on all for payment and following state law and
31 CFR Part 285 aspects of the proposed rule. Treasury procedure. In addition, the rule was
RIN 1530–AA02 received comments from one private designed to provide flexibility because
company that provides worldwide tax what constitutes a reasonable effort may
Offset of Tax Refund Payments To services. The following is a discussion differ based on the specific
Collect Certain Debts Owed to States of the substantive issues raised in the circumstances. Therefore, Fiscal Service
comments. believes that providing specific actions
AGENCY: Bureau of the Fiscal Service,
Fiscal Service, Treasury. 1. Notice that states should take is unnecessary
and not practicable and has not adopted
ACTION: Final rule. The commenter suggested that the this suggestion.
rule provide guidelines to the states
SUMMARY: This final rule adopts the 3. Central Repository for Information
regarding how to notify debtor
interim rule, published in the Federal
populations who may be affected by this The commenter suggested that debtors
Register on January 28, 2011,
rule. While this comment is outside the be able to obtain information through a
concerning the collection of delinquent
scope of this rule, Fiscal Service notes centralized location within the Treasury
State unemployment compensation
that this rule requires debtor-specific Offset Program Web site and through an
debts through the offset of
pre-offset notification (see 31 CFR automated telephone system on why
overpayments of Federal taxes.
285.8(c)(3)(i)). The commenter also their payment was offset and on state
DATES: This rule is effective September suggested that Fiscal Service mandate appeals processes. While this suggestion
17, 2015. that states provide a pre-offset notice by is outside the scope of this rule, Fiscal
ADDRESSES: In accordance with the U.S. certified mail, return receipt requested. Service notes that debtors currently may
government’s eRulemaking Initiative, In the 2010 Act, Congress explicitly access certain offset information
the Bureau of the Fiscal Service removed this requirement in the case of through an automated telephone system.
publishes rulemaking information on unemployment compensation debt. Fiscal Service further notes that it is
http://www.regulations.gov. Fiscal Service is unaware of any exploring other self-service options that
FOR FURTHER INFORMATION CONTACT: evidence that certified mail is more would permit debtors to obtain
Thomas Kobielus, Manager, Treasury likely to reach the debtor than is regular information about their own debts.
Offset Program Debt Policy Branch, first class mail, and notes that the cost
Treasury Offset Program Division, Debt of sending a notice by certified mail, 4. Other Concerns
Collection Program Management return receipt requested, is high relative The commenter suggested that the
Directorate, Debt Management Services, to sending a notice by regular first class description of the required appeal
Bureau of the Fiscal Service, at (202) mail. Therefore, Fiscal Service has not process contain more detail. Fiscal
874–6810, or Michelle M. Cordeiro, adopted this suggestion. As required by Service is not aware of any additional
Attorney, Office of Chief Counsel, statute, however, notice must be sent by detail that needs to be included and,
Bureau of the Fiscal Service, at (202) certified mail, return receipt requested therefore, has not made any changes to
874–6680. prior to pursuing Federal tax refund the rule based on this suggestion.
SUPPLEMENTARY INFORMATION: offset to collect delinquent state income The commenter also suggested that
tax obligations. Fiscal Service consider extending the
I. Background The commenter also suggested that period of dispute to 90 days because
This rule implements the authority Fiscal Service mandate that the notice to debtors are unlikely to have retained
added by the SSI Extension for Elderly the debtor include certain details about records for long periods of time. Fiscal
and Disabled Refugees Act of 2008 the debt. Fiscal Service notes that, prior Service notes that several other
(‘‘2008 Act’’), as amended by the Claims to submitting a debt to the Treasury delinquent debt collection tools provide
Resolution Act of 2010 (‘‘2010 Act’’), to Offset Program for tax refund offset a due process period of 60 days or
offset overpayments of Federal taxes purposes, a state is required to certify to fewer, including the offset of Federal
(referred to as ‘‘tax refund offset’’) to Fiscal Service that it has provided the nontax payments to collect Federal
tkelley on DSK3SPTVN1PROD with RULES
collect delinquent state unemployment debtor with sufficient due process, nontax debts (31 CFR 285.5(d)(6)(ii)(A));
compensation debts. The Department of including identification of the debt the the offset of Federal nontax payments to
the Treasury (‘‘Treasury’’) has state seeks to collect by offset. The collect state debts (31 CFR 285.6(e)(2));
incorporated the procedures necessary information that must be provided may the offset of Federal tax payments to
to collect state unemployment differ with the specific circumstances, collect Federal nontax debts (31 CFR
compensation debts as part of the and states may provide notice beyond 285.2(d)(1)(ii)(B)); and the
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Document Created: 2015-12-15 09:34:22
Document Modified: 2015-12-15 09:34:22
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective September 17, 2015. | |
| Contact | Ben Owens, Chief, Pittsburgh Field Division; Telephone: (412) 937-2827, Email: [email protected] | |
| FR Citation | 80 FR 55746 | |
| CFR Associated | Intergovernmental Relations; Surface Mining and Underground Mining |
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