Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2005 

operated by the State. In addition, the 

real-time information program shall 

complement current transportation 

performance reporting systems by 

making it easier to gather or enhance 

required information. 

(b) Data quality. The States shall 

develop the methods by which data 

quality can be ensured to the data 

consumers. The criteria for defining the 

validity of traffic and travel conditions 

reporting from real-time information 

programs shall be defined by the States 

in collaboration with their partners for 

establishing the programs. 

(c) Participation. The establishment, 

or the enhancement, of a real-time 

information program should include 

participation from the following 

agencies: Highway agencies; public 

safety agencies (e.g. police, fire, 

emergency/medical); transit operators; 

and other operating agencies necessary 

to sustain mobility through the region 

and/or the metropolitan area. 

(d) Update of Regional ITS 

Architecture. All States and regions that 

have created a Regional ITS architecture 

in accordance with Section 940 in Title 

23 of the Code of Federal Regulations 

are required to complete an update of 

the Regional ITS architecture. The 

updated Regional ITS architecture shall 

explicitly address real-time highway 

and transit information needs and the 

methods needed to meet such needs. 

The updated Regional ITS architecture 

shall address coverage, monitoring 

systems, data fusion and archiving, and 

accessibility to highway and transit 

information for other States and for 

value added information product 

providers. The updated Regional ITS 

architecture shall feature the 

components and functionality of the 

real-time information program. 

(e) Effective date. Traffic and travel 

conditions reporting needs for all 

Interstate system highways shall be 

considered. Establishment of the realtime information program for traffic and 

travel conditions reporting along the 

Interstate system highways shall be 

completed no later than [date 2 years 

after date of publication of final rule]. 

§ 511.313 Metropolitan Area real-time 

information program supplement. 

(a) Applicability. Metropolitan Areas 

exceeding a population of 1,000,000 

inhabitants are subject to the provisions 

of this section. 

(b) Requirement. Metropolitan Areas 

shall establish a real-time information 

program for traffic and travel conditions 

reporting with the same provisions 

described in § 511.311. 

(c) Effective date. Traffic and travel 

conditions reporting needs and the 

impacts from congestion for all 

Metropolitan Area Interstate system 

highways shall be considered. 

Establishment of the real-time 

information program for traffic and 

travel conditions reporting along the 

Metropolitan Area Interstate system 

highways shall be completed no later 

than [date 2 years after date of 

publication of the final rule]. 

(d) Routes of significance. States shall 

designate metropolitan area, nonInterstate highways that are routes of 

significance that merit traffic and travel 

conditions reporting. States shall apply 

the existing practices and procedures 

that are used for compliance with 23 

CFR part 940, and with 23 CFR part 420. 

States shall select routes of significance 

based on various factors relating to 

roadway safety (e.g. crash rate, routes 

affected by environmental events), 

public safety (e.g. routes used for 

evacuations), economic productivity, 

severity of congestion, frequency of 

congestion, and utility of the highway to 

serve as a diversion route for congestion 

locations. States shall consider, in 

consultation with the FHWA, routes 

that are federally funded, State and 

locally funded, and privately funded 

when designating routes of significance. 

States shall consider toll facilities and 

other facilities that apply end user 

pricing mechanisms when designating 

routes of significance. Arterial highways 

and other highways that serve as 

diversion routes for congestion shall be 

considered for designating routes of 

significance. Establishment of the realtime information program for traffic and 

travel conditions reporting along the 

State-designated metropolitan area 

routes of significance shall be 

completed no later than [date 4 years 

after date of publication of the final 

rule]. 

§ 511.315 Program administration. 

(a) Prior to authorization of highway 

trust funds for construction or 

implementation of ITS projects, 

compliance with § 511.311 and 

§ 511.313 shall be demonstrated. 

(b) Compliance with this part will be 

monitored under Federal-aid oversight 

procedures as provided under 23 U.S.C. 

106 and 133, and 23 CFR 1.36. 

[FR Doc. E9–392 Filed 1–13–09; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[PA–153–FOR; Docket ID: OSM–2008–0021] 

Pennsylvania Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on the proposed amendment. 

SUMMARY: We are announcing receipt of 

an amendment to the Pennsylvania 

regulatory program (the ‘‘Pennsylvania 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). In response to a 

required program amendment codified 

in the Federal regulations and to a 

subsequent notification by letter, 

Pennsylvania has submitted changes to 

its regulations involving definitions; 

permit and reclamation fees; and the use 

of money and has provided additional 

descriptions, assurances, and 

supporting information to ensure that 

the reclamation of all sites that were 

bonded under its previous Alternative 

Bonding System (ABS) will be provided 

for under the approved Pennsylvania 

program and consistent with Federal 

regulations at 30 CFR Part 800. 

This document gives the times and 

locations that the Pennsylvania program 

and proposed amendment to that 

program are available for your 

inspection, the comment period during 

which you may submit written 

comments on the amendment, and the 

procedures that we will follow for the 

public hearing, if one is requested. 

DATES: We will accept written 

comments until 4 p.m., e.s.t. February 

13, 2009. If requested, we will hold a 

public hearing on February 9, 2009. 

We will accept requests to speak at a 

hearing until 4 p.m., e.s.t. on January 

29, 2009. 

ADDRESSES: You may submit comments, 

identified by PA–153–FOR; Docket ID: 

OSM–2008–0021 by either of the 

following two methods: 

Federal eRulemaking Portal: 

www.regulations.gov. The proposed rule 

has been assigned Docket ID: OSM– 

2008–0021. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to 

www.regulations.gov and do the 

following. Click on the ‘‘Advanced 

Docket Search’’ button on the right side 

of the screen. Type in the Docket ID 


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OSM–2008–0021 and click the 

‘‘Submit’’ button at the bottom of the 

page. The next screen will display the 

Docket Search Results for the 

rulemaking. If you click on OSM–2008– 

0021, you can view the proposed rule 

and submit a comment. You can also 

view supporting material and any 

comments submitted by others. 

Mail/Hand Delivery/Courier: Mr. 

George Rieger, Chief, Pittsburgh Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 4th and 

Market Sts., Suite 3C, Harrisburg, 

Pennsylvania 17101. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the ‘‘Public Comment Procedures’’ 

heading of the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: In addition to obtaining 

copies of documents at 

www.regulations.gov, information may 

also be obtained at the addresses listed 

below during normal business hours, 

Monday through Friday, excluding 

holidays. You may receive one free copy 

of the amendment by contacting OSM’s 

Pittsburgh Field Division Office. 

George Rieger, Chief, Pittsburgh Field 

Division, Harrisburg Office, Office of 

Surface Mining Reclamation and 

Enforcement, 4th and Market Sts., 

Suite 3C, Harrisburg, Pennsylvania 

17101, Telephone No. (717) 782– 

4036, E-mail: grieger@osmre.gov 

Joseph P. Pizarchik, Director, Bureau of 

Mining and Reclamation, 

Pennsylvania Department of 

Environmental Protection, Rachel 

Carson State Office Building, P.O. Box 

8461, Harrisburg, Pennsylvania 

17105–8461, Telephone: (717) 787– 

5015 E-mail: jpizarchik@state.pa.us. 

FOR FURTHER INFORMATION CONTACT: 

George Rieger, Telephone: (717) 782– 

4036. E-mail: grieger@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program 

II. Description of the Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Pennsylvania 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘* * * a 

State law which provides for the 

regulation of surface coal mining and 

reclamation operations in accordance 

with the requirements of the Act * * *; 

and rules and regulations consistent 

with regulations issued by the Secretary 

pursuant to the Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the 

Pennsylvania program on July 30, 1982. 

From 1982 until 2001, Pennsylvania’s 

bonding program for surface coal mines, 

coal refuse reprocessing operations, and 

coal preparation plants, was funded 

under an ABS, which included a central 

pool of money, the Surface Mining 

Conservation and Reclamation Fund 

(Fund), used for reclamation. This pool 

was funded in part by a per-acre 

reclamation fee paid by operators of 

permitted sites and supplemented by 

site bonds posted by those operators for 

each mine site. 

In 1991, our oversight activities 

determined that Pennsylvania’s ABS 

included unfunded reclamation 

liabilities for backfilling, grading, and 

revegetating mined land and we 

determined that the ABS was financially 

incapable of abating or treating 

pollutional discharges from bond 

forfeiture sites under its jurisdiction. As 

a result, on May 31, 1991, we imposed 

the required amendment codified at 30 

CFR 938.16(h). That amendment 

required Pennsylvania to demonstrate 

that the revenues generated by its 

collection of the reclamation fee would 

assure that its Fund could be operated 

in a manner that would meet the ABS 

requirements contained in 30 CFR 

800.11(e). This provision requires that 

an ABS assure that ‘‘the regulatory 

authority will have available sufficient 

money to complete the reclamation plan 

for any areas which may be in default 

at any time.’’ It also requires that the 

ABS ‘‘provide a substantial economic 

incentive for the permittee to comply 

with all reclamation provisions’’. 

Also, on October 1, 1991, OSM sent 

Pennsylvania a letter, pursuant to 30 

CFR Part 732, notifying the State that it 

must submit a program amendment that 

would address the aforementioned 

deficiencies in the ABS. This document 

is commonly referred to as a ‘‘732 

letter.’’ 

After a decade of trying to address the 

problems with the ABS, the 

Pennsylvania Department of 

Environmental Protection (PADEP) 

terminated the ABS in 2001 and began 

converting active surface coal mining 

permits to a conventional bonding 

system (CBS) or ‘‘full-cost’’ bonding 

program. This CBS requires a permittee 

to post a site-specific bond in an amount 

sufficient to cover the estimated costs to 

complete reclamation in the event of 

bond forfeiture. 

By letter dated June 12, 2003, OSM 

notified the PADEP that it concurred 

that the conversion to a CBS, as well as 

other additional measures taken by the 

State, were sufficient to remedy the 

deficiencies cited in the 732 letter, 

which it declared to be terminated. 

Then, on October 7, 2003, OSM 

published a final rule removing the 

required amendment at 30 CFR 

938.16(h) on the basis that the 

conversion from an ABS to a CBS 

rendered the requirement to comply 

with 30 CFR 800.11(e) moot. 68 FR 

57805. Subsequent to these OSM 

actions, a lawsuit was filed in the U.S. 

District Court for the Middle District 

Court of Pennsylvania, Pennsylvania 

Federation of Sportsmen’s Clubs Inc. et 

al. v. Norton, No. 1:03–CV–2220. The 

district court affirmed OSM’s decision 

in a Memorandum Opinion and Order 

dated February 1, 2006. Id. 

However, on August 2, 2007, the 

United States Court of Appeals for the 

Third Circuit reversed the district 

court’s decision and set aside OSM’s 

decision to remove the required 

amendment and the 732 letter. 

Pennsylvania Federation of Sportsmen’s 

Clubs v. Kempthorne, 497 F.3d 337 (3rd 

Cir. 2007). At issue, relevant to this 

notice, was whether OSM properly 

terminated the requirement that 

Pennsylvania demonstrate that its 

Surface Mining Conservation and 

Reclamation Fund was in compliance 

with 30 CFR 800.11(e). 

The Third Circuit concluded: ‘‘While 

it is true that the ‘ABS Fund’ continues 

to exist in name, it no longer operates 

as an ABS, that is, as a bond pool, to 

provide liability coverage for new and 

existing mining sites.’’ 497 F.3d at 349. 

However, the Court went on to 

‘‘conclude that 800.11(e) continues to 

apply to sites forfeited prior to the CBS 

conversion.’’ Id. at 353. In commenting 

further on 30 CFR 800.11(e), the Court 

stated that ‘‘[t]he plain language of this 

provision requires that Pennsylvania 

demonstrate adequate funding for mine 

discharge abatement and treatment at all 

ABS forfeiture sites.’’ Id. at 354. Finally, 

the court also concluded that ‘‘a plain 

reading of the words ‘any areas which 

may be in default at any time’ indicates 

that the obligations prescribed by 

Section 800.11(e) are not restricted to 

the immediate circumstances 

surrounding the approval of an ABS, but 

are instead ongoing in nature and apply 

at any time, so long as those mining 

areas originally bonded under the ABS, 

and not yet converted to CBS bonds, 

still exist.’’ Id. at 352. Pennsylvania 

believes the submission that is the 

subject of this rulemaking will comply 

with the Third Circuit’s mandate, and 

thus will satisfy the reinstated required 


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amendment and the October 1, 1991, 

732 letter. 

You can find additional background 

information on the Pennsylvania 

program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval in the July 

30, 1982, Federal Register, 47 FR 33050. 

You can also find later actions 

concerning Pennsylvania’s program and 

program amendments at 30 CFR 938.11, 

938.12, 938.13, 938.15 and 938.16. 

II. Description of the Amendment 

By letter dated August 1, 2008 

(Administrative Record Number PA 

802.43), Pennsylvania sent us a 

proposed program amendment that is 

intended to satisfy a required 

amendment that was imposed by OSM 

in a final rule published in the Federal 

Register on May 31, 1991, 56 FR 24687, 

and codified in the Federal Regulations 

at 30 CFR 938.16(h). This proposed 

program amendment is also intended to 

satisfy the 732 letter dated October 1, 

1991. Both the required amendment and 

the 732 letter are discussed in more 

detail in Section I. 

This Pennsylvania program 

amendment submission provides a 44- 

page detailed narrative of actions taken 

by PADEP subsequent to the OSM 1991 

required amendment and 732 letter to 

address bond program deficiencies. 

Pennsylvania requests that the changes 

described be included in its approved 

program. The program amendment 

under consideration consists of changes 

to Pennsylvania regulations as well as 

narrative demonstrations as identified 

below. Included in parentheses are the 

pages within the 44-page Pennsylvania 

narrative that are specific to each 

amendment: 

A. Regulatory Changes to Establish 

Legally Enforceable Means of Funding 

the O&M and Recapitalization Costs for 

the ABS Legacy Sites (summarized on 

pages 36–39; the actual text of these 

regulatory changes, along with brief 

summaries of them, are set forth below 

in Section A of Section Descriptions); 

B. The Conversion Assistance 

Program (pages 13–18); 

C. Trust Funds as an Alternative 

System and Other Equivalent 

Guarantee: Rationale for Approval 

(pages 26–31); 

D. Demonstration of Sufficient 

Funding for Outstanding Land 

Reclamation at Primacy ABS Forfeiture 

Sites (pages 31–33); and 

E. Demonstration of Sufficient 

Funding for Construction of All 

Necessary Discharge Treatment 

Facilities at the Primacy ABS Forfeiture 

Site (pages 33–34). 

Pennsylvania believes this State 

program amendment includes 

provisions that will cover the costs of all 

reclamation for sites bonded under the 

ABS that have had their bonds forfeited, 

as well as potential reclamation costs for 

sites bonded under the ABS and not yet 

forfeited, but for which conventional, 

full cost bonds or other sufficient 

financial assurance mechanisms have 

not been posted. These sites are the 

responsibility of the former ABS should 

they be forfeited prior to the posting of 

full-cost bonds or other adequate 

financial mechanisms. 

Section Descriptions 

A. Regulatory Changes To Establish 

Legally Enforceable Means of Funding 

the O&M and Recapitalization Costs for 

the ABS Legacy Sites 

Pennsylvania has completed final 

rulemaking to amend existing 

provisions of Chapter 86 relating to 

reclamation fees, definitions, and to the 

PADEP’s use of money for reclamation 

of forfeited surface coal mine sites. The 

revised regulatory language and the 

State’s summary of its rationale for these 

specific changes are identified below: 

Subchapter A. General Provisions: Revised 

Language to the Pennsylvania Code: 

Subchapter A. General Provisions 

Section 86.1 Definitions 

The following words and terms, when 

used in this chapter, have the following 

meanings, unless the context clearly 

indicates otherwise: 

ABS Legacy Sites—Mine sites, 

permitted under the primacy Alternate 

Bonding System, that have a postmining pollutional discharge where the 

operator has defaulted on its obligation 

to adequately treat the discharge and, 

either the bond posted for the site is 

insufficient to cover the cost of treating 

the discharge, or a trust to cover the 

costs of treating the discharge was not 

fully funded and is insufficient to cover 

the cost of treating the discharge. 

* * * * * 

Operational Area—The maximum 

portion of the permitted area that the 

permittee is authorized to disturb at any 

specific time during the permit term in 

accordance with the approved mining 

and reclamation plan, including all of 

the land affected by mining activities 

that is not planted, growing and 

stabilized. 

Operation and Maintenance Costs— 

Expenses associated with the day-to-day 

operation and maintenance of a 

conventional or a passive treatment 

facility, such as chemicals, electricity, 

labor, water sampling, sludge removal 

and disposal, maintenance of access 

roads, mowing, snow removal, 

inspecting facilities, repairing and 

maintaining all aspects of the treatment 

facility, equipment, and buildings. 

* * * * * 

Primacy Alternate Bonding System— 

Bonding system utilized by 

Pennsylvania from July 31, 1982 until 

August 4, 2001 for surface coal mines, 

coal refuse reprocessing facilities, and 

coal preparation plants in which a 

central pool of money to be used by the 

Department for reclamation of forfeited 

sites was funded in part through 

imposition of a per-acre reclamation fee 

paid by operators of permitted sites. 

* * * * * 

Recapitalization Costs—The costs 

associated with replacing discharge 

treatment facility components or the 

costs to install treatment systems with 

lower operation and maintenance costs 

than the system being replaced. 

Summary of Regulatory Changes— 

Section 86.1, Definitions 

a. Section 86.1 (Definition of ‘‘ABS 

Legacy Sites’’) 

The term ‘‘ABS legacy sites’’ has been 

added to the list of terms in Section 86.1 

because it is used throughout the 

amendments to Sections 86.17(e) and 

86.187. The term ‘‘ABS legacy sites’’ 

represents a certain class of surface coal 

mine sites which were permitted under 

the PADEP’s ABS. These sites have 

post-mining pollutional discharge(s), 

the operator has defaulted on its 

obligation to adequately treat the 

discharge(s), and the operator’s financial 

guarantee for reclamation is insufficient 

to cover the cost of treating the 

discharge in perpetuity. The PADEP’s 

means for addressing reclamation of the 

ABS legacy sites, including the cost of 

treating the discharges in perpetuity, is 

the subject of the ruling of the Third 

Circuit Court of Appeals in the 

Kempthorne case discussed above. The 

cost of treating the discharges at these 

sites is being addressed by the 

amendments to Sections 86.17(e) and 

86.187 as part of this final rulemaking. 

b. Section 86.1 (Definition of 

‘‘Operational Area’’) 

The term ‘‘Operational Area’’ is being 

added to Section 86.1 in order to help 

clarify the amendments to Section 

86.17(e) concerning the manner in 

which the reclamation fee is assessed in 

a CBS. 

c. Section 86.1 (Definition of ‘‘Operation 

and Maintenance Costs’’) 

The term ‘‘Operation and 

Maintenance Costs’’ is being added to 


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Section 86.1 in order to help clarify the 

amendments to Section 86.17(e) and 

Section 86.187 concerning how certain 

monies are to be used to treat discharges 

on a certain class of bond forfeiture 

sites—the ABS legacy sites. 

d. Section 86.1 (Definition of ‘‘Primacy 

Alternate Bonding System’’) 

The term ‘‘Primacy Alternate Bonding 

System’’ is being added to Section 86.1 

to accurately identify the class of mine 

sites being addressed by the 

amendments to Section 86.17(e) and 

Section 86.187. The ABS legacy sites, 

which are the focus of the Kempthorne 

case, are a class of coal mine sites that 

were permitted under the ‘‘primacy 

alternate bonding system’’ and have 

certain additional characteristics 

described in the definition for ‘‘ABS 

legacy sites.’’ PADEP is proposing this 

definition because it believes that it is 

necessary to distinguish sites permitted 

under the ABS from those converted to, 

or originally permitted under, the CBS 

in order to accurately identify the ABS 

legacy sites. Pennsylvania also proposes 

this definition to distinguish further 

between the ‘‘primacy’’ ABS and the 

ABS that existed for surface coal mine 

sites prior to Pennsylvania obtaining 

primacy in July 1982, because the preprimacy ABS sites are not subject to the 

requirements of 30 CFR 800.11(e). 

e. Section 86.1 (Definition of 

‘‘Recapitalization Costs’’) 

The term ‘‘Recapitalization Costs’’ is 

being added to the list of terms in 

Section 86.1. Recapitalization costs are 

expressly included as part of the 

operation and maintenance costs for 

treating discharges at ABS legacy sites 

in changes being made to Section 

86.17(e) and Section 86.187. When 

calculating the costs to treat post-mining 

pollutional discharges at mine sites in 

perpetuity, the PADEP proposes to 

include an amount to cover the costs to 

replace discharge treatment facility 

components over time (as such 

components simply wear out or 

otherwise need to be replaced). This 

term is needed to assure that these 

specific equipment-replacement costs 

are identified as part of the ongoing 

costs for treating post-mining discharges 

at the ABS legacy sites. 

Subchapter B. Permits: Revised Language 

to the Pennsylvania Code: 

Subchapter B. Permits 

General Requirements for Permits and 

Permit Applications 

Section 86.17 Permit and Reclamation 

Fees 

* * * * * 

(e) In addition to the bond established 

under Sections 86.143, 86.145, 86.149 

and 86.150 (relating to Requirement to 

File a Bond; Department 

responsibilities; determination of bond 

amount; and minimum amount), and 

subject to the exception provided for in 

Section 86.283(c) (relating to 

procedures), the applicant for a permit 

or a permit amendment shall pay a peracre reclamation fee for surface mining 

activities except for the surface effects of 

underground mining. This reclamation 

fee will be assessed for each acre of the 

approved operational area and shall be 

paid by the applicant prior to the 

Department’s issuance of a surface 

mining permit. If a permit amendment 

results in an increase in the approved 

operational area, the reclamation fee 

will be assessed on the increased 

acreage and shall be paid by the 

operator prior to the Department’s 

issuance of the permit amendment. 

(1) The reclamation fee will be 

deposited into a separate subaccount 

within the Surface Mining Conservation 

and Reclamation Fund called the 

Reclamation Fee O&M Trust Account, as 

a supplement to bonds forfeited from 

ABS Legacy Sites. The reclamation fee 

will be used by the Department to pay 

the construction costs and operation 

and maintenance costs associated with 

treating post-mining pollutional 

discharges at ABS Legacy Sites, and 

such money may not be used for any 

other purpose. The interest earned on 

the monies in the Reclamation Fee O&M 

Trust Account will be deposited into the 

Reclamation Fee O&M Trust Account 

and will be used by the Department to 

pay the construction costs and operation 

and maintenance costs associated with 

treating post-mining pollutional 

discharges at ABS Legacy Sites. Such 

interest may not be used for any other 

purpose. For purposes of this section, 

operation and maintenance costs 

include recapitalization costs. 

(2) After the end of each fiscal year, 

the Department will prepare a fiscalyear report containing a financial 

analysis of the revenue and 

expenditures of the Reclamation Fee 

O&M Trust Account for the past fiscal 

year and the projected revenues and 

expenditures or the current fiscal year. 

Beginning with the report for fiscal year 

2008–09, the report will include the 

Department’s calculation of the required 

amount of the reclamation fee, and the 

proposed adjustment of the reclamation 

fee amount. The fiscal-year report will 

be submitted to the members of the 

Mining and Reclamation Advisory 

Board for their review and comment and 

will be published on the Department’s 

Web site. Notice of the report’s 

availability will be published in the 

Pennsylvania Bulletin. The Department 

will review the fiscal-year report at a 

meeting of the Mining and Reclamation 

Advisory Board. 

(3) The amount of the reclamation fee 

shall be $100 per acre until December 

31, 2009. Commencing January 1, 2010 

and continuing until either a permanent 

alternative funding source is established 

or the ABS Legacy Sites Trust Account 

is actuarially sound, the reclamation fee 

will be adjusted as necessary to ensure 

that there are sufficient revenues to 

maintain a balance in the Reclamation 

Fee O&M Trust Account of at least 

$3,000,000. 

(i) The reclamation fee will be used 

until the ABS Legacy Sites Trust 

Account is actuarially sound unless an 

alternative permanent funding source in 

lieu of the reclamation fee is used to 

fund the Reclamation Fee O&M Trust 

Account. 

(ii) Until the ABS Legacy Sites 

Account is actuarially sound, the 

alternative permanent funding source 

must provide sufficient revenues to 

maintain a balance in the Reclamation 

Fee O&M Trust Account of at least 

$3,000,000 and to pay the annual 

operation and maintenance costs for 

treating post-mining pollutional 

discharges at the ABS Legacy Sites. 

Funds that are not needed for annual 

operation and maintenance or to 

maintain the $3,000,000 balance may be 

deposited into the ABS Legacy Sites 

Trust Account. 

(4) Commencing January 1, 2010 and 

continuing until the ABS Legacy Sites 

Trust Account is actuarially sound, the 

amount of the reclamation fee will be 

annually calculated and, if necessary, 

will be adjusted in multiples of $50 

based on the following factors: 

(i) The current balance in the 

Reclamation Fee O&M Trust Account; 

(ii) The total amount of revenue into 

the Trust Account during the previous 

fiscal year from collection of the 

reclamation fee, the interest accrued by 

the Reclamation Fee O&M Trust 

Account, the deposits of civil penalties 

into the Trust Account and deposits 

from other sources of monies into the 

Trust Account; 

(iii) The amount of ongoing operation 

and maintenance costs incurred by the 

Reclamation Fee O&M Trust Account 

during previous fiscal years; 

(iv) The projected number of acres 

subject to the reclamation fee during the 

current fiscal year; 


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(v) The projected amount of revenue 

into the Reclamation Fee O&M Trust 

Account during the current fiscal year 

from projected interest accrued by the 

Trust Account, projected deposits of 

civil penalties, and projected deposits of 

monies from other sources; and 

(vi) The projected expenditures of the 

Reclamation Fee O&M Trust Account 

for operation and maintenance costs for 

the current fiscal year. 

(5) Following the Department’s review 

of its calculation of the required 

reclamation fee amount at a public 

meeting of the Mining and Reclamation 

Advisory Board pursuant to Subsection 

(2), the Department will publish the 

adjustment in the required amount of 

the reclamation fee in the Pennsylvania 

Bulletin. Adjustments to the amount of 

the reclamation fee will become 

effective upon publication in the 

Pennsylvania Bulletin. The 

Department’s determination of the 

required amount of the reclamation fee 

pursuant to Subsections (3) and (4) will 

be a final action of the Department 

appealable to the Environmental 

Hearing Board. 

(6) The Department will cease to 

assess and collect the reclamation fee 

when the ABS Legacy Sites Trust 

Account established pursuant to Section 

86.187(a) (relating to use of money) 

becomes actuarially sound. The ABS 

Legacy Sites Trust Account will become 

actuarially sound when the following 

conditions are met: 

(i) Financial guarantees sufficient to 

cover reclamation costs, including the 

costs to treat each discharge in 

perpetuity, have been approved by the 

Department for all mine sites permitted 

under the Primacy Alternate Bonding 

System; 

(ii) Construction of the necessary 

discharge treatment facilities has been 

completed at the ABS Legacy Sites; and 

(iii) The ABS Legacy Sites Trust 

Account, combined with the 

Reclamation Fee O&M Trust Account, 

contains funds which generate interest 

at a rate and in an amount sufficient to 

pay the annual operation and 

maintenance costs for treating postmining pollutional discharges at the 

ABS Legacy Sites. 

Summary of Regulatory Changes— 

Section 86.17, Permit and Reclamation 

Fees 

a. Section 86.17(e) Reclamation Fees 

This proposal revises the text of 

Section 86.17(e) to clarify the 

application of this subsection in the 

context of the CBS. The revisions 

provide that the reclamation fee is 

assessed for each acre of the approved 

operational area of the permit. The 

proposed revisions also clarify the 

manner in which the reclamation fee is 

assessed. Finally, minor editorial 

changes were made by adding 

references to Section 86.143 (relating to 

the requirement to file a bond) and to 

the exception for remining areas 

provided in Section 86.283(c). 

b. Section 86.17(e)(1) (Deposit and Use 

of Reclamation Fees) 

This provision, in conjunction with 

Section 86.187(a)(1), establishes a 

separate subaccount within the Surface 

Mining Conservation and Reclamation 

(SMCR) Fund called the Reclamation 

Fee O&M (operation and maintenance) 

Trust Account, and requires the PADEP 

to deposit all reclamation fees it collects 

into the Reclamation Fee O&M Trust 

Account. This subsection also requires 

that the PADEP use the reclamation fees 

only for the purpose of paying the costs 

associated with treating post-mining 

pollutional discharges at ABS legacy 

sites. In addition, this paragraph 

requires that all interest earned on the 

monies in the Reclamation Fee O&M 

Trust Account be deposited into the 

account and be used only to pay the 

costs associated with treating postmining pollutional discharges at ABS 

legacy sites. The name of this account 

reflects that it is a trust established by 

this rulemaking and that the funds 

contained in the account are held in 

trust by the Commonwealth for the 

benefit of the people to be used by the 

Commonwealth to treat post mining 

pollutional discharges at ABS legacy 

sites. The PADEP decided to make the 

reclamation fee an adjustable source of 

revenue that would be used to help 

cover the costs of treating discharges at 

the ABS legacy sites. 

c. Section 86.17(e)(2) (Preparation of 

Fiscal-Year Report on Reclamation Fee 

O&M Trust Account) 

This provision requires the PADEP to 

prepare a report at the end of each fiscal 

year, which will include a financial 

analysis and projections of the revenues 

and expenditures of the Reclamation 

Fee O&M Trust Account. The report 

must be made available for review by 

the Pennsylvania Mining and 

Reclamation Advisory Board (MRAB) 

and the general public. This provision 

establishes a process by which the 

MRAB and the general public can 

examine the PADEP’s expenditure of 

funds from the Reclamation Fee O&M 

Trust Account for the treatment of 

discharges at the ABS legacy sites, the 

amount of revenue deposited into the 

account during the prior fiscal year from 

the various dedicated revenue sources, 

the projected expenditures and 

projected revenue. Pennsylvania 

believes that this provision will assist 

OSM, the MRAB, affected persons in the 

industry, and interested members of the 

public, with their oversight of the 

PADEP’s compliance with the 

requirements of 30 CFR Section 

800.11(e) as applied to the ABS legacy 

sites, the Court ruling in Kempthorne, 

and the required program amendment at 

30 CFR Section 938.16(h). 

d. Section 86.17(e)(3) (Amount of the 

Reclamation Fee) 

The amount of the reclamation fee is 

currently set at $100 per acre. Section 

86.17(e)(3) requires the fee amount to be 

maintained at $100 per acre until 

December 31, 2009. After this initial 

period at $100 per acre, the reclamation 

fee will be adjusted annually based on 

criteria specified in Sections 86.17(e)(3) 

and (4). This section also includes 

provisions concerning the potential for 

a permanent alternative source of 

funding to be used in lieu of the 

reclamation fee—if that alternative 

funding source meets the conditions in 

Sections 86.17(e)(3)(i) and (ii). Section 

86.17(e)(3) provides that the PADEP will 

begin annually adjusting the amount of 

the reclamation fee as of January 1, 

2010, and will continue to do so, until 

either a permanent alternative funding 

source is established or the ABS Legacy 

Sites Trust Account becomes actuarially 

sound. (See the discussion of the ABS 

Legacy Sites Trust Account in 

subsection 4.g., below.) Section 

86.17(e)(3)(i) reiterates the commitment 

for annual adjustment of the 

reclamation fee until the ABS Legacy 

Sites Trust Account is actuarially 

sound, unless a permanent alternative 

funding source in place of the 

reclamation fee is used to fund the 

Reclamation Fee O&M Trust Account. 

Section 86.17(e)(3)(ii) establishes the 

conditions that a permanent alternative 

funding source must meet before the 

reclamation fee could be discontinued 

and the permanent alternative source 

used instead. The State indicates that 

such an alternative funding source must 

be permanent; must provide sufficient 

revenues to maintain a balance in the 

Reclamation Fee O&M Trust Account of 

at least $3,000,000; and must provide 

sufficient revenue to pay the annual 

operation and maintenance costs for all 

the ABS legacy sites. 

e. Section 86.17(e)(4) (Amount of the 

Reclamation Fee) 

The PADEP expects that the adjusted 

amount of the reclamation fee will 

become effective as of January 1, 2010, 

and will be similarly made effective on 


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that date each year thereafter. Section 

86.17(e)(3) sets the basic parameters for 

annually adjusting the amount of the 

reclamation fee, and Section 86.17(e)(4) 

lists the specific factors to be used in the 

PADEP’s calculation of the adjusted 

amount. Section 86.17(e)(3) requires 

that the reclamation fee be annually 

adjusted to ensure that there are 

sufficient revenues to maintain a 

balance of at least $3,000,000 in the 

Reclamation Fee O&M Trust Account. 

Following the close of the 

Commonwealth’s 2008–09 fiscal year (in 

June 2009), the PADEP must prepare its 

year-end financial analysis of the 

Reclamation Fee O&M Trust Account 

pursuant to Section 86.17(e)(2). The 

2008–09 fiscal-year report must include 

the PADEP’s calculation of the amount 

of the reclamation fee for the upcoming 

calendar year commencing on January 1, 

2010. Section 86.17(e)(4) prescribes the 

factors to be used for making the 

calculation—essentially an analysis of 

the revenues and expenditures for the 

past year and projected revenues and 

expenditures for the current fiscal year. 

Sections 86.17(e)(3) and (4) establish 

a mechanism for annually adjusting the 

amount of the reclamation fee. 

Pennsylvania indicates that the 

adjustment procedure is necessary to 

accommodate the fluctuations in the 

operation and maintenance costs for 

treating pollutional discharges at the 

ABS legacy sites that will occur over 

time. The PADEP believes that the 

adjustment procedure is also necessary 

in order to maintain a sufficient cushion 

in the Reclamation Fee O&M Trust 

Account to prevent pollution and assure 

that the PADEP has sufficient money at 

any time to treat the discharges at the 

ABS legacy sites, including any sites 

with discharges that were originally 

permitted under the ABS, and for which 

the bonds are subsequently forfeited 

before the posting of a full cost, 

conventional bond or other financial 

mechanism that is sufficient to cover the 

costs of discharge treatment, in 

accordance with 30 CFR Section 

800.11(e). 

f. Section 86.17(e)(5) (Publishing 

Amount of the Adjusted Reclamation 

Fee; Calculation Appealable) 

Section 86.17(e)(5) is added to 

prescribe a procedure for the PADEP to 

publish the amount of the adjusted 

reclamation fee. The PADEP must 

review its calculation of the adjusted 

reclamation fee amount at a public 

meeting of the MRAB (most likely in 

October of each year), where the 

members of the MRAB, affected persons 

in the industry, and the general public, 

will have an opportunity to comment on 

the PADEP’s financial report and its 

calculation of the adjusted amount of 

the fee. The PADEP will subsequently 

publish the adjusted amount of the 

reclamation fee in the Pennsylvania 

Bulletin, with the adjusted amount 

becoming effective upon publication. 

This provision also establishes that 

PADEP’s calculation of the adjusted 

reclamation fee is a final action 

appealable to the Environmental 

Hearing Board. According to 

Pennsylvania, section 86.17(e)(5) 

balances the PADEP’s need for a flexible 

mechanism to assure funding to treat 

discharges at the ABS legacy sites with 

the interests of the industry and the 

public in reviewing, commenting on, 

and challenging, before an independent 

forum, the PADEP’s administration of 

the Reclamation Fee O&M Trust 

Account and the calculation of the new 

reclamation fee. 

g. Section 86.17(e)(6) (Conditions for 

Ceasing Collection of Reclamation Fee) 

Section 86.17(e)(6) requires the 

PADEP to cease assessment and 

collection of the reclamation fee when 

the ABS Legacy Sites Trust Account, 

established pursuant to Section 

86.187(a)(i), is actuarially sound. The 

conditions which must be met for the 

ABS Legacy Account to become 

actuarially sound are prescribed here 

and in Section 86.187(a)(2)(ii). The 

PADEP’s current estimate of the annual 

operation and maintenance costs for 

treating the discharges at the ABS legacy 

sites is approximately $1,200,000. 

However, the ultimate annual amount 

for operation and maintenance costs 

vary considerably depending upon the 

number of additional underfunded sites 

which go into default and other relevant 

factors. When financial guarantees 

sufficient to cover reclamation costs 

have been approved for all mine sites 

permitted under the primacy ABS, no 

additional sites will need to be added to 

the class of ABS legacy sites. Once the 

PADEP completes construction of all 

necessary discharge treatment systems 

for all of the ABS legacy sites, the 

PADEP will ascertain the amount of 

annual operation and maintenance 

costs, including recapitalization costs, 

which will be necessary to treat the 

discharges at all of the ABS legacy sites. 

This provision allows the PADEP to 

cease collection of the reclamation fee 

when the ABS Legacy Account contains 

funds which generate interest at a rate 

sufficient to pay the annual operation 

and maintenance costs for treating postmining pollutional discharges at all the 

ABS legacy sites. At that point, the State 

believes that the PADEP will always 

have sufficient funds on hand in the 

ABS legacy sites Account to cover the 

costs of treating the discharges at all the 

ABS legacy sites, and that Pennsylvania 

will have met the requirements of 30 

CFR 800.11(e) without the need for 

additional revenue from the reclamation 

fee. 

Subchapter F. Bonding and Insurance 

Requirements: Revised Language to the 

Pennsylvania Code: 

Subchapter F. Bonding and Insurance 

Requirements 

Bond Forfeiture 

Section 86.187 Use of Money 

(a) Monies received from fees, fines, 

penalties, bond forfeitures and other 

monies received under authority of the 

Surface Mining Conservation and 

Reclamation Act (52 P.S. Sections 

1396.1–1396.31), and interest earned on 

the monies, will be deposited in the 

Fund. 

(1) Monies received from the 

reclamation fees required by Section 

86.17[(b)](E) (relating to permit and 

reclamation fees), and the interest 

accrued on these monies, will be 

deposited into a separate subaccount 

within the fund called the Reclamation 

Fee O&M Trust Account. 

(i) The Department will deposit into 

the Reclamation Fee O&M Trust 

Account, up to $500,000 in a fiscal year, 

the monies collected from civil 

penalties assessed by the Department 

pursuant to the Surface Mining 

Conservation and Reclamation Act (52 

P.S. Sections 1396.1–1396.31) less the 

percentage of those penalty monies due 

the Environmental Education Fund 

pursuant to 35 P.S. Section 7528. If the 

amount of penalty monies collected 

exceeds $500,000 during a fiscal year, 

the Department may deposit the amount 

collected in excess of $500,000 into the 

fund and use the excess amount in 

accordance with Subsection (3). 

(ii) The Department may deposit into 

the Reclamation Fee O&M Trust 

Account a portion, to be determined at 

the Department’s discretion, of the 

interest earned on other monies in the 

fund. 

(iii) The Department may deposit 

other monies into the Reclamation Fee 

O&M Trust Account, including 

appropriations, donations, or the fees 

collected for sum-certain financial 

guarantees needed to facilitate full-cost 

bonding in accordance with applicable 

law. 

(iv) The monies deposited in the 

Reclamation Fee O&M Trust Account 

will be used to pay construction costs 

and operation and maintenance costs 

associated with treating post-mining 


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pollutional discharges at ABS Legacy 

Sites, and such monies may not be used 

for any other purpose. For purposes of 

this section, operation and maintenance 

includes recapitalization costs. Monies 

in the Reclamation Fee O&M Trust 

Account will be held by the 

Commonwealth in trust for the benefit 

of all the people to protect their right to 

pure water and the preservation of the 

values of the environment. The State 

Treasurer will manage the investment of 

the funds in the Reclamation Fee O&M 

Trust Account with the advice of the 

Department. 

(2) Monies received from the 

forfeiture of bonds will be used only to 

reclaim land and restore water supplies 

affected by the surface mining 

operations upon which liability was 

charged on the bond, except as 

otherwise provided in this section and 

in Section 86.190 (relating to sites 

where reclamation is unreasonable, 

unnecessary or impossible; excess 

funds). Interest accrued on these monies 

will be used only to reclaim land and 

restore water supplies affected by 

surface mining operations for which the 

Department has forfeited bonds, as a 

supplement to bond forfeiture funds. 

(i) Monies received from bonds 

forfeited on ABS Legacy Sites, and the 

interest accrued on such monies, will be 

deposited into a separate subaccount in 

the Fund called the ABS Legacy Sites 

Trust Account, the Department may, 

upon review and recommendation of 

the Mining and Reclamation Advisory 

Board, transfer excess monies from the 

Reclamation Fee O&M Trust Account 

into the ABS Legacy Sites Trust 

Account. The Department may deposit 

other monies into the ABS Legacy Sites 

Trust Account, including 

appropriations, donations, or interest 

earned on other monies in the fund. 

(ii) Monies in the ABS Legacy Sites 

Trust Account, including the interest 

accrued by the Trust Account, will be 

used to pay the operation and 

maintenance costs associated with 

treating post-mining pollutional 

discharges at ABS Legacy Sites, and 

such monies may not be used for any 

other purpose. Monies in the ABS 

Legacy Sites Trust Account will be held 

by the Commonwealth in trust for the 

benefit of all the people to protect their 

right to pure water and the preservation 

of the values of the environment. The 

State Treasurer will manage the 

investment of the funds in the ABS 

Legacy Sites Trust Account with the 

advice of the Department. 

(iii) The Department may not make 

disbursements from the ABS Legacy 

Sites Trust Account until that Trust 

Account becomes actuarially sound. 

The ABS Legacy Sites Trust Account 

will become actuarially sound when the 

following conditions are met: 

(A) Financial guarantees sufficient to 

cover reclamation costs, including the 

costs to treat each discharge in 

perpetuity, have been approved by the 

Department for all mine sites permitted 

under the Primacy Alternate Bonding 

System; 

(B) Construction of the necessary 

discharge treatment facilities has been 

completed at the ABS Legacy Sites; and 

(C) The ABS Legacy Sites Trust 

Account, combined with the 

Reclamation Fee O&M Trust Account, 

contains funds which generate interest 

at a rate and in an amount sufficient to 

pay the annual operation and 

maintenance costs for treating postmining pollutional discharges at the 

ABS Legacy Sites. 

(iv) When the ABS Legacy Sites Trust 

Account becomes actuarially sound the 

Department will transfer the monies in 

the Reclamation Fee O&M Trust 

Account into the ABS Legacy Sites 

Trust Account and the Reclamation Fee 

O&M Trust Account will terminate. At 

that time, the reclamation fee or 

alternative permanent funding source, 

whichever is in place, will cease and the 

deposit of civil penalty monies pursuant 

to Section 86.187(a)(1)(i) will also cease. 

Summary of Regulatory Changes— 

Section 86.187, Use of Money 

a. Section 86.187(a)(1) (Deposit of 

Reclamation Fee Into Reclamation Fee 

O&M Trust Account) 

This provision, in conjunction with 

Section 86.17(e)(1), has been revised to 

establish a separate subaccount within 

the SMCR Fund called the Reclamation 

Fee O&M Trust Account, and to require 

that the reclamation fees collected by 

the PADEP pursuant to Section 86.17(e) 

must be deposited into the Reclamation 

Fee O&M Trust Account. The provision 

also directs that the interest accrued on 

collected reclamation fees must be 

deposited into the Reclamation Fee 

O&M Trust Account. Section 86.187 

(relating to use of money) specifies the 

purposes for which the PADEP must use 

monies from fees, fines, penalties, bond 

forfeitures and other monies received 

under the Pennsylvania Surface Mining 

Conservation and Reclamation Act 

(PASMCRA), as well as interest earned 

on these monies. Pennsylvania believes 

that the enforceable regulatory 

mechanism created by these revisions 

will enable its bonding program to meet 

the requirements of 30 CFR Section 

800.11(e). 

b. Section 86.187(a)(1)(i) (Deposit of 

Civil Penalties Into Reclamation Fee 

O&M Trust Account) 

Under Section 18(a) of PASMCRA, 

civil penalties collected pursuant to that 

statute may be used by the PADEP for 

reclamation of surface coal mine sites, 

restoration of water supplies affected by 

surface coal mining, or for any other 

conservation purposes provided by 

PASMCRA 52 P.S. Section 1396.18(a). 

The PADEP is thus authorized to use 

civil penalty monies, as a supplement to 

forfeited bonds, for purposes of 

reclaiming the ABS legacy sites 

including treatment of post-mining 

pollutional discharges at these sites. 

New Section 86.187(a)(1)(i) will require 

the PADEP to deposit into the 

Reclamation Fee O&M Trust Account 

the monies collected from civil 

penalties assessed pursuant to 

PASMCRA, and to use those monies 

deposited into the account to pay the 

costs associated with treating discharges 

at the ABS legacy sites. PADEP believes 

that, in order to comply with the Court’s 

ruling in Kempthorne, supra, it must 

identify and dedicate specified sources 

of revenue that combined will generate 

enough money to cover the costs for 

treating discharges at all the ABS legacy 

sites. This subsection identifies a source 

of revenue—civil penalties collected 

pursuant to PASMCRA—and requires 

the PADEP to use this source of revenue 

to fund the discharge-treatment costs of 

the ABS legacy sites. 

This provision recognizes that a 

percentage of the civil penalties 

collected must be allotted to the 

Environmental Education Fund by law. 

(See 35 P.S. Section 7528.) Section 

86.187(a)(1)(i) also caps the amount of 

civil penalties that must be deposited 

into the Reclamation Fee O&M Account 

during a single fiscal year at $500,000. 

If the PADEP collects more than 

$500,000 in civil penalties during a 

fiscal year, Section 86.187(a)(1)(i) gives 

the PADEP discretion to deposit the 

excess amount into the SMCR Fund 

where it may be used for the purposes 

described in Section 86.187(a)(3). 

c. Section 86.187(a)(1)(ii) (Deposit of 

Interest Earned on Other Monies in the 

SMCR Fund Into the Reclamation Fee 

O&M Trust Account) 

Similar to the deposit of civil 

penalties required by Section 

86.187(a)(1)(i), this section is being 

added to authorize the PADEP to 

deposit into the Reclamation Fee O&M 

Trust Account a portion of the interest 

that is earned on other monies in the 

SMCR Fund. The SMCR Fund includes 

monies from released bonds, license 


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fees, and other sources; these monies 

earn interest that may be used by the 

PADEP for the purposes specified by 

Section 18(a) of PASMCRA. See 52 P.S. 

Section 1396.18(a); 25 Pa. Code Section 

86.187(a). This provision gives the 

PADEP discretion as to the amount of 

the interest earned on other monies in 

the SMCR Fund which will be 

deposited into the Reclamation Fee 

O&M Trust Account during any given 

fiscal year. 

d. Section 86.187(a)(1)(iii) (Deposit of 

Other Monies Into the Reclamation Fee 

O&M Trust Account) 

Section 86.187(a)(1)(iii) will give the 

PADEP authority to deposit other 

monies from sources such as legislative 

appropriations or donations into the 

Reclamation Fee O&M Trust Account. In 

addition, in the event a change in the 

applicable law provides for it, this 

provision will give the PADEP authority 

to deposit into the Reclamation Fee 

O&M Trust Account the fees that will be 

collected for ‘‘sum-certain financial 

guarantees needed to facilitate full-cost 

bonding.’’ (These devices are also 

known as ‘‘conversion assistance 

financial guarantees’’ or ‘‘conversion 

assistance bonds,’’ and are described 

below in Section B.) 

e. Section 86.187(a)(1)(iv) (Restriction 

on Use of Monies in the Reclamation 

Fee O&M Trust Account) 

Section 86.187(a)(1)(iv) specifies that 

all monies deposited into the 

Reclamation Fee O&M Trust Account 

must be used to pay the costs associated 

with treating the post-mining 

pollutional discharges at the ABS legacy 

sites. This provision establishes that the 

monies held in the Reclamation Fee 

O&M Trust Account are being held by 

the State in trust for the benefit of all the 

people of the State in order to protect 

their rights under Article I, Section 27 

of the Pennsylvania Constitution. 

Pennsylvania believes that an 

actuarially sound account will satisfy 

the requirements of 30 CFR Section 

800.11(e). 

f. Section 86.187(a)(2) (Use of Monies 

Received From Forfeiture of Bonds) 

A minor editorial change is being 

made to this provision to clarify that 

monies received from the PADEP’s 

forfeiture of bonds on ABS legacy sites 

will be used to reclaim the land and 

restore water supplies affected by the 

surface mining operations upon which 

liability was charged on the bond, and, 

more specifically, in accordance with 

the provisions in Sections 86.187(a)(2)(i) 

and (ii), which are being added as part 

of this final rulemaking. 

g. Section 86.187(a)(2)(i) (Deposit of 

Monies From Bonds Forfeited on ABS 

Legacy Sites Into Separate Subaccount) 

Section 86.187(a)(2)(i) establishes a 

separate subaccount within the SMCR 

Fund called the ABS Legacy Sites Trust 

Account. The monies received from the 

bonds forfeited on ABS legacy sites, and 

all interest accrued on such monies, 

must be deposited into the ABS Legacy 

Sites Trust Account according to new 

Section 86.187(a)(2)(i). Section 

86.187(a)(2)(i) will also provide 

regulatory authorization for the PADEP 

to deposit monies from other sources, 

such as appropriations, donations, or 

interest earned on other monies in the 

SMCR Fund, into this account. Finally, 

Section 86.187(a)(2)(i) authorizes the 

PADEP to transfer ‘‘excess’’ monies from 

the Reclamation Fee O&M Trust 

Account into the ABS Legacy Sites 

Trust Account. This provision requires 

the PADEP to seek the MRAB’s review 

and recommendation prior to 

transferring any ‘‘excess’’ funds. 

Pennsylvania indicates that Section 

86.187(a)(2)(i) responds to the court 

ruling in the Kempthorne case regarding 

the obligation of the PADEP to meet the 

requirements of 30 CFR 800.11(e). 

Section 86.187(a)(2)(i) will establish a 

type of savings account for monies 

ultimately to be used to pay the annual 

operation and maintenance costs 

associated with all of the ABS legacy 

sites. The PADEP currently has 

approximately $4.8 million in forfeited 

bonds held for primacy ABS forfeited 

discharge sites; these funds will 

constitute the initial principal in the 

ABS Legacy Sites Trust Account. 

Section 86.187(a)(2)(iii), discussed 

below, prohibits the PADEP from 

making any disbursements from the 

ABS Legacy Sites Trust Account until 

the account becomes actuarially sound. 

The Reclamation Fee O&M Trust 

Account will be used to pay the ongoing 

operation and maintenance costs on a 

pay-as-you-go basis, while funds in the 

ABS Legacy Sites Trust Account 

accumulate from earned interest and 

other potential income sources. 

Pennsylvania believes that the 

amendments to Section 86.17(e) will 

enable the PADEP to annually replenish 

and maintain funds in the Reclamation 

Fee O&M Trust Account sufficient to 

cover the annual operation and 

maintenance costs for treating 

discharges at the ABS legacy sites. 

Pennsylvania indicates that the ABS 

Legacy Sites Trust Account will grow to 

the point that the interest earned on that 

account will be enough to cover all the 

annual operation and maintenance costs 

for the ABS legacy sites, without the 

need to generate any additional revenue 

from other sources such as the 

reclamation fee. 

h. Section 86.187(a)(2)(ii) (Restriction 

on Use of Monies in ABS Legacy Sites 

Trust Account) 

This provision requires that all 

monies deposited into the ABS Legacy 

Sites Trust Account be used only to pay 

the operation and maintenance costs for 

treating discharges at the ABS legacy 

sites. As in Section 86.187(a)(1)(iv), the 

PADEP is declaring that it is 

establishing the ABS Legacy Sites Trust 

as an account in the SMCR Fund. The 

PADEP has included language in 

Section 86.187(a)(2)(ii) that specifically 

establishes the trust called the ABS 

Legacy Sites Trust Account. This 

regulation states that all monies 

deposited in the ABS Legacy Sites Trust 

Account are held by the State in trust 

for the benefit of the people of the State 

to protect their rights under Article 1, 

Section 27 of the Pennsylvania 

Constitution. 

i. Section 86.187(a)(2)(iii), (A), (B), (C) 

(Restrictions on ABS Legacy Sites Trust 

Account) 

Section 86.187(a)(2)(iii) prohibits the 

PADEP from making any disbursements 

from the ABS Legacy Sites Trust 

Account until the account becomes 

actuarially sound. The conditions that 

must be met for the ABS Legacy Sites 

Trust Account to become actuarially 

sound are prescribed here. First, 

financial guarantees sufficient to cover 

all reclamation costs must have been 

approved by the PADEP for all mine 

sites permitted under the primacy ABS. 

Second, the PADEP must have 

completed construction of all necessary 

discharge treatment systems for all of 

the ABS legacy sites. Once the entire 

class of ABS legacy sites is known, and 

all necessary discharge treatment 

systems have been constructed for these 

sites, the PADEP will be able to 

ascertain the amount of annual 

operation and maintenance costs, 

including recapitalization costs, which 

will be necessary to treat all the 

discharges at all of the ABS legacy sites. 

Once this figure is known, the third 

condition precedent may be satisfied, 

i.e., the ABS Legacy Sites Trust Account 

and Reclamation O&M Trust Account 

must contain funds that generate 

interest at a rate and amount sufficient 

to pay the annual operation and 

maintenance costs for treating all postmining pollutional discharges at all the 

ABS legacy sites. Pennsylvania believes 

that, once the ABS Legacy Sites Trust 

Account becomes actuarially sound, the 

PADEP will always have sufficient 


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funds on hand in the Account to cover 

the costs of treating the discharges at all 

the ABS legacy sites, and 

Pennsylvania’s bonding program will 

meet the requirements of 30 CFR 

800.11(e) without the need for any 

revenue from the reclamation fee or the 

other revenue sources dedicated to the 

Reclamation Fee O&M Trust Account. 

j. Section 86.187(a)(2)(iv) (Transfer of 

Remaining Funds in Reclamation Fee 

O&M Trust Account to ABS Legacy 

Sites Trust Account) 

Section 86.187(a)(2)(iv) provides for 

termination of the Reclamation Fee 

O&M Trust Account when the ABS 

Legacy Sites Trust Account becomes 

actuarially sound. This provision 

authorizes the PADEP to transfer the 

remaining funds in the Reclamation Fee 

O&M Trust Account into the ABS 

Legacy Sites Trust Account when the 

latter account becomes actuarially 

sound. At that point, the Reclamation 

Fee O&M Trust Account will no longer 

be necessary and will terminate. In 

addition, the reclamation fee (or an 

alternative permanent funding source 

established in lieu of the reclamation 

fee) will no longer be needed and will 

cease to be collected, and the deposit of 

civil penalty monies into the 

Reclamation Fee O&M Trust Account 

pursuant to Section 86.186(a)(1)(i) will 

also cease. 

The remaining portions of this State 

program amendment, described in 

Sections B through E, below, do not 

consist of changes to Pennsylvania 

regulations. Rather, they are financial 

mechanisms PADEP has established that 

will, in the PADEP’s view, work in 

concert with the regulatory changes 

described above to bring Pennsylvania 

into compliance with the required 

amendment at 30 CFR 938.16(h), the 

1991, 732 letter, and, consequently, 

with the ABS standard of sufficiency set 

forth in 30 CFR 800.11(e). 

B. ABS Program Amendment—The 

Conversion Assistance Program 

Pennsylvania indicated that when 

implementing the revised CBS and 

converting the ABS permits to 

conventional bonding, it had serious 

concerns regarding the financial ability 

of existing permittees to post 

significantly increased bond amounts. 

To address these risks, the PADEP 

developed and implemented a 

conversion assistance program as part of 

the conversion of ABS active permits to 

a CBS. Using its authority under Section 

4(d.2) of the PASMCRA, 52 P.S. Section 

1396.4(d.2), Pennsylvania developed the 

conversion assistance program as an 

alternative financial assurance 

mechanism that, it contends, meets the 

purposes and objectives of the bonding 

program. In pertinent part, Section 

4(d.2) states that ‘‘[t]he department 

[PADEP] may establish alternative 

financial assurance mechanisms which 

shall achieve the objectives and 

purposes of the bonding program.’’ 

The Conversion Assistance program 

was developed in which the PADEP 

would essentially operate as a surety 

company. Funded with an initial 

general-revenue appropriation of 

$7,000,000, and supplemented by 

annual premiums, the PADEP issued a 

‘‘land reclamation financial guarantee’’ 

in a sum-certain amount to individual 

ABS permittees required to convert to a 

full-cost bond for land reclamation on 

an existing permit. The Land 

Reclamation Financial Guarantees 

(LRFG) were issued only to ABS 

permittees that were converting to a 

conventional bonding permit. 

Applicants who submitted applications 

after termination of the ABS are not 

eligible for the conversion assistance 

program. The PADEP indicates that, as 

of November 30, 1999, the forfeiture rate 

for primacy ABS permits was 10.4%. 

The PADEP concluded that, based on 

this historic rate, the $7,000,000 

principal would cover up to 

$70,000,000 in bond exposure. The 

PADEP determined that the $7,000,000, 

when combined with existing site 

bonds, would be sufficient to pay for all 

forfeitures that may occur. Additionally, 

premiums collected for the LRFGs 

would provide additional funds to 

complete reclamation. 

In June 2001, the Pennsylvania 

legislature appropriated the $7,000,000 

for the conversion assistance program. 

See Act of June 22, 2001 (Pub. L. 979, 

No. 6A), known as the ‘‘General 

Appropriation Act of 2001,’’ at Section 

213 (appropriating $7,000,000 ‘‘for the 

conservation purpose of providing sumcertain financial guarantees needed to 

facilitate the implementation of full-cost 

bonding for a fee and, in the event of 

forfeiture, to finance reclamation of the 

forfeited surface mining site in an 

amount not to exceed the sum-certain 

guarantee’’). The general revenue 

appropriation of $7,000,000 was for one 

fiscal year, which necessitated the 

issuance of all the LRFGs by mid-2002. 

Issuance of new LRFGs ended after mid2002, although some LRFGs have been 

reassigned to a new operator, generally 

as part of a permit transfer. 

As part of this submission, 

Pennsylvania requests that OSM 

approve the Conversion Assistance 

Program and its use of the LRFG as a 

financial guarantee equivalent to a 

conventional bond. Section 4(d.2) of 

PASMCRA is submitted as part of this 

program amendment as the authority for 

employing LRFGs under the Conversion 

Assistance Program. 

The PADEP stated, however, that by 

the close of the conversion process, 

there were six permittees actively 

mining large anthracite operations with 

outstanding bonding obligations that 

had to be addressed through Consent 

Orders and Agreements (CO & A’s) 

establishing reclamation and payment 

schedules. These sites were either not 

provided with conversion assistance 

guarantees, or were provided with 

guarantees that fell short of 

underwriting the full estimated cost of 

land reclamation. Currently, only two of 

these permittees remain underbonded, 

and the PADEP asserts that it has made 

provisions for fully funding the 

outstanding reclamation obligations for 

these two remaining cases through 

reclamation and payment schedules. 

C. Trust Funds as an Alternative System 

and Other Equivalent Guarantee 

Pennsylvania is also submitting the 

provision in Section 4(d.2) of 

PASMCRA for the additional purpose of 

providing the authority for the 

establishment of site-specific trust funds 

to be used to pay the costs of treating 

post-mining pollutional discharges in 

perpetuity. Pennsylvania is requesting 

approval of site-specific trusts as an 

alternative financial assurance 

mechanism consistent with Section 

509(c) of SMCRA and other applicable 

provisions of SMCRA. Pennsylvania 

proposes that its site-specific trust fund 

program is an alternative financial 

system to a bonding program that 

achieves the objectives and purposes of 

a conventional bonding program, and 

provides equivalent guarantees no less 

effective than a performance bond and 

30 CFR subchapter J. 

In support of its request for approval 

of site-specific trusts as an alternative 

financial assurance mechanism 

consistent with Section 509(c) of 

SMCRA and other applicable provisions 

of SMCRA, PADEP provided 

descriptions and demonstrations on its 

authority to enter into trust agreements, 

trust development and management 

process, and some of the administrative 

and financial components. More 

specifically, PADEP has provided 

discussions on Section 4(d.2) of 

PASMCRA authority to establish 

alternative financial assurance 

mechanisms, the use of the Consent 

Order and Agreement and a companion 

Trust Agreement, factors currently used 

to determine the amount of a sitespecific trust fund, and the use of AMDTreat for cost estimating. PADEP’s 


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proposed amendment also discusses 

rates of return, inflation rates, and 

volatility rates used on previous trust 

agreements as well as how operation 

and maintenance (O&M) and 

recapitalization costs are addressed. 

Finally, the amendment submission 

describes trust disbursement procedures 

and flexibility to allow the permittee a 

reasonable period of time to fully fund 

a treatment trust. 

D. Demonstration of Sufficient Funding 

for Outstanding Land Reclamation at 

Primacy ABS Forfeiture Sites 

An analysis by the PADEP of the 

existing land reclamation ABS forfeiture 

sites was initially prepared in a 

February 2000 report titled Assessment 

of Pennsylvania’s Bonding Program for 

Primacy Coal Mining Permits. Based on 

the report’s conclusions, the PADEP 

requested that the Pennsylvania 

legislature appropriate general revenue 

funds to provide the additional money 

needed to complete the land 

reclamation of ABS forfeiture sites. In 

2001, the General Assembly 

appropriated $5,500,000 to be used 

solely for the costs of land reclamation 

at ABS forfeiture sites (the ‘‘ABS 

Closeout Funds’’). See Act of June 22, 

2001 (Pub. L. 979, No. 6A), known as 

the ‘‘General Appropriation Act of 

2001,’’ at Section 213. PADEP states that 

it has used the ABS Closeout Funds to 

complete land reclamation for some of 

the ABS forfeiture sites. In 2007–08, the 

PADEP prepared an updated list of 

primacy ABS bond forfeiture sites with 

outstanding land reclamation. It also 

prepared a detailed analysis of the 

current costs to complete all 

outstanding land reclamation at these 

sites and provided an estimated total 

cost to complete the land reclamation 

for all primacy ABS bond forfeiture sites 

of $7,946,890. 

The PADEP indicates that, in addition 

to the $5.5 Million legislative 

appropriation, it has sufficient other 

funds on hand to cover all land 

reclamation costs on ABS forfeiture 

sites. (See the ABS Bond Forfeiture Sites 

Land Reclamation Status Report, July 

2008, p. 15, included as part of 

Attachment 8 to this State program 

amendment.) There is also money 

available in several other accounts in 

the SMCR Fund. Where funds are not 

restricted by law solely for use in 

reclaiming ABS forfeiture sites, the 

PADEP has identified monies which it 

is authorized by law to spend for this 

purpose. (See ABS Financial Summary, 

July 2008, included as part of 

Attachment 10 to this State program 

amendment.) Thus, the PADEP believes 

it has demonstrated that it has available 

sufficient money to complete the 

outstanding land reclamation for the 

ABS legacy sites at any time, as required 

by the Third Circuit’s decision 

interpreting 30 CFR 800.11(e)(1). 

E. Demonstration of Sufficient Funding 

for Construction of All Necessary 

Discharge Treatment Facilities at the 

Primacy ABS Forfeiture Sites 

Pennsylvania submitted information 

to demonstrate that it has sufficient 

funding to complete any initial facility 

construction at primacy ABS forfeiture 

sites. An evaluation of all the primacy 

ABS forfeited discharge sites was 

completed by PADEP to project the 

costs of treating the discharges. Postmining treatment costs were evaluated 

in three categories: (i) Initial facility 

construction costs; (ii) the annual 

operation and maintenance cost; and 

(iii) recapitalization costs. Initial facility 

construction costs cover all of the costs 

to get a treatment system up and 

running, such as facility design costs 

and construction. 

The PADEP calculated that, as of July 

2008, the total capital cost to construct 

all necessary discharge-treatment 

facilities for the primacy ABS forfeiture 

discharge sites is $2,073,104. The 

PADEP states that it has taken a 

conservative approach to this cost 

calculation. 

To address this aspect of the ABS 

legacy, the PADEP must assure that it 

has the funds to meet this obligation. 

The PADEP indicates that it currently 

has funds on hand that are available to 

cover the approximately $2,100,000 

total capital cost to construct the 

necessary treatment facilities for the 

primacy ABS forfeiture discharge sites. 

Pennsylvania has committed to using 

the funds in the released bond account 

to address the reclamation liability for 

the ABS legacy sites. In addition, money 

in the PADEP’s SMCR Fund, General 

Operations Account, may be used for 

reclamation purposes as well as general 

administrative costs. See 52 P.S. Section 

1396.18. (See ABS Financial Summary, 

July 2008, included as part of 

Attachment 10 to this State program 

amendment.) Thus, the PADEP believes 

it has demonstrated that it has available, 

at any time, sufficient money to 

construct the necessary dischargetreatment facilities for all the ABS 

legacy sites, as required by 30 CFR 

Section 800.11(e)(1). 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the submission 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. We 

are also seeking comments as to whether 

the submission satisfies the required 

amendment at 30 CFR 938.16(h), and 

the October 1991, 732 letter. If we 

approve the amendment, it will become 

part of the Pennsylvania program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the submission, and explain 

the reason for any recommended 

change(s). We appreciate any and all 

comments, but those most useful and 

likely to influence decisions on the final 

regulations will be those that either 

involve personal experience or include 

citations to and analyses of SMCRA, its 

legislative history, its implementing 

regulations, case law, other pertinent 

Tribal or Federal laws or regulations, 

technical literature, or other relevant 

publications. We cannot ensure that 

comments received after the close of the 

comment period (see DATES) or sent to 

an address other than those listed above 

(see ADDRESSES) will be included in the 

docket for this rulemaking and 

considered. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. We will not consider anonymous 

comments. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., e.s.t. on January 29, 2009. If you 

are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 


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wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is only limited interest in 

participating in a public hearing, we 

may hold a public meeting rather than 

a public hearing. If you wish to meet 

with us to discuss the submission, 

please request a meeting by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. 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 regulations. 

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, to the extent 

allowable by law, 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 such program is drafted 

and promulgated by a specific State, not 

by OSM. 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. 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 a 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.). 

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 

that is the subject of this rule is based 

on 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 governmental 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 on the 

analysis performed under various laws 

and executive orders for the counterpart 

Federal regulations. 

List of Subjects in 30 CFR Part 917 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: November 18, 2008. 

Michael K. Robinson, 

Acting Appalachian Regional Director. 

[FR Doc. E9–603 Filed 1–13–09; 8:45 am] 

BILLING CODE 4310–05–P 


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