Bureau of Mining and Reclamation
Department of Environmental Protection
P.O. Box 8461
Harrisburg, PA 17105-8461
Subject Page
INTRODUCTION i
LIST OF COMMENTATORS ii
LISTING OF ABBREVIATIONS AND ACRONYMS
USED iii
GENERAL PROVISIONS
1. 86.251 Purpose 1
2. 86.252 Definitions 1
3. 86.253 Operator and project qualification
2
REMINING OPERATOR'S ASSISTANCE PROGRAM
4. 86.261 Program services and 86.265 Application for approval 4
5. 86.262 Department responsibilities 4
6. 86.263 Eligibility for assistance 4
7. 86.264 Applications for assistance and
86.267 Determination of data requirements 5
8. 86.266 Notice 5
9. 86.268 Public records; evidence 5
10. 86.269 Basic qualifications for consultants and laboratories 5
11. 86.270 Operator liability 6
FINANCIAL GUARANTEES (formerly PAYMENT IN LIEU OF BOND)
12. 86.281 Financial guarantees to insure reclamation - general 7
13. 86.282 Participation requirements 7
14. 86.283 Procedures 9
15. 86.284 Forfeiture 9
RECLAMATION BOND CREDITS
16. 86.291 Financial assurance for bond credit - general 10
17. 86.292 Procedures and requirements 10
18. 86.293 Issuance 12
19. 86.294 Uses and limitations 12
20. 86.295 Forfeiture 12
SUMMARY OF COMMENTS 13
The Environmental Quality Board proposed
amendments to 25 PA Code Chapter 86 (relating to surface
and underground mining of coal: general). This amendment was
proposed in order to implement various remining and reclamation
incentives authorized by the 1992 amendment (Act 173) to the Surface
Mining Conservation and Reclamation Act (52 P.S. §§1396.1
- 1396.19a).
This amendment to Chapter 86 was
published as proposed rulemaking in the April 23, 1994 Pennsylvania
Bulletin Volume 24 No. 17. A public hearing was
held May 26, 1994 in New Stanton, PA.
This document addresses comments received
by the Environmental Quality Board during the public comment period
and from the Independent Regulatory Review Commission (IRRC).
Also included are informal comments
of the Federal Office of Surface Mining Reclamation and Enforcement
(OSM) and the Department's Mining and Reclamation Advisory Board
(MRAB).
The comments and responses are arranged
in the same sequence as the proposed regulations.
1. THOMAS J. HYDOCK, P.E.
Mining Engineer
Penn Equipment Corporation
P.O. Box 8
Port Carbon, PA 17965
2. MR. BRIAN C. MACE
HCR Box 40
Spring Glen, PA 17978
3. GUY L. MACE, PLS
White Pine Coal Company, Inc.
P.O. Box 59
Ashland, PA 17921-0059
4. J. ANTHONY ERCOLE
PA Coal Association
212 N. 3rd Street
Harrisburg, PA 17101
5. INDEPENDENT REGULATORY REVIEW COMMISSION
6. MINING AND RECLAMATION ADVISORY BOARD
(providing informal comments)
7. OFFICE OF SURFACE MINING (providing
informal comments)
Act - The Surface Mining Conservation
and Reclamation Act
Board - The Environmental Quality Board
Department - The Department of Environmental
Protection
IRRC - The Independent Regulatory Review
Commission
MRAB - The Mining and Reclamation Advisory
Board to the Department
OSM - The Office of Surface Mining Reclamation and Enforcement,
U.S. Department of the Interior
ROAP - Remining Operator's Assistance
Program
GENERAL PROVISIONS
1. 82.251 Purpose.
No comments were received.
2. 86.252 Definitions.
Comment
Act 173 intends these remining and reclamation
incentives to include reclamation of bond forfeiture sites. Therefore,
the definition of abandoned mine lands should encompass bond forfeiture
sites. IRRC noted that it is not clear whether a bond would be
considered to be "in effect" after it has been forfeited
by the operator but before the Commonwealth has received the funds.
Commentators
1, 4, 5
Response
The Board agrees that the Act intended
all reclamation and remining incentives to apply to bond forfeiture
sites. For the sake of clarity, the Board has revised the definition
of abandoned mine lands to refer specifically to bond forfeiture
sites for which the bonds have been collected by the Department.
Comment
Mr. Hydock states that the designation
of a remining area must be done on a site specific basis according
to the provisions of Section 4.9 of the Act and that defining
a remining area under Section 4.9 of the Act conflicts with
the intent of the remining operator's assistance program.
Other commentors suggest that areas
needed to support the remining operation such as haul roads, drainage
control, equipment storage, coal preparation and storage should
be included in the remining area. IRRC recommended that the definition
be amended to allow the remining area to extend beyond 300 feet
if the operator can demonstrate that a larger area is needed to
undertake the remining operation.
Commentators
1, 4, 5, 6
Response
The definition of remining area is needed
in order to implement the remining operator's assistance program
(Section 4.10 of the Act) and the financial guarantees program
(Section 4.12 of the Act). Sections 4.10 and 4.12 are intended
to encourage an operator to remine an area under a permit whether
or not the Department has designated the area as suitable for
remining. Section 4.9 authorizes the Department to designate
an area suitable for remining whether or not a permit application
has been or will be submitted. The Section 4.9 process for designating
areas suitable for remining may be developed by future rulemaking.
The Board agrees that in some cases
the remining operation will need to use unaffected lands for support
activities. The definition of remining area has been revised
to include previously undisturbed areas needed for support activities
related to the remining. The revised definition allows the permittee
to use additional undisturbed area if the permittee demonstrates
the need for it.
Comment
In its informal comments, OSM expressed
concern that the remining incentives provisions and definitions
may allow use of alternate reclamation standards on sites not
eligible for alternate standards under the Federal program.
Commentator
7
Response
The Board points out that these proposed
regulations do not change the reclamation performance standards
contained in the existing, OSM-approved, coal mining program.
3. 86.253 Operator and project qualification.
Comment
The Act requires that for an operator
to participate he only needs to be a licensed mine operator "otherwise
eligible to obtain a permit." Subsection 86.253 (a)(5)
creates a more stringent standard than SMCRA. An operator who
had a single violation of one of the listed regulations would
be ineligible even if the violation was corrected in a timely
manner.
Commentators
4, 5
Response
Paragraph 86.253 (a)(5) has
been deleted. The revised subsection (a) is equivalent to the
standard set by the Act.
Comment
In its informal comments on the proposed
regulation, OSM suggested that an applicant for the ROAP remining
incentive should meet compliance as well as ownership and control
requirements before PaDER (DEP) expends funds for assistance.
Commentator
7
Response
These requirements can be found in the
proposed regulation on operator qualifications at 86.253(a)(1)
which refers to the mining license and 86.253(a)(2) which refers
to the compliance requirements for obtaining a permit.
Comment
Subsection 86.253 (b)(1) requires
an operator to demonstrate that the proposed remining activity
is technologically and economically feasible and will not result
in a violation of water quality criteria. This means that the
operator would actually have to submit the equivalent of a technologically
complete permit application to be eligible for the remining operator's
assistance program (ROAP). However, the purpose of ROAP is to
provide that very information.
Commentators
1, 2, 3, 5
Response
Section 4.10 of the Act, which establishes
ROAP, has only one requirement for participation. The operator
must be eligible to obtain a permit. To eliminate confusion,
the wording of 86.263 (pertaining to eligibility for ROAP) has
been modified to refer to 86.253(a) which relates to the operator`s
qualifications.
Comment
For a project to be approved for reclamation
under the remining and reclamation incentives program, Section
86.253 (b) requires the operator to demonstrate that the
proposed activity is technologically and economically feasible.
Mr. Hydock, Mr. Brian C. Mace and Mr. Guy L.
Mace note that Section 4.9 of the Act states that the Department
when designating areas suitable for remining must make this determination.
Furthermore, Section 4.9 of the Act requires the Department to
prepare a report which contains enough information to allow its
use in preparation of a permit application. Consequently the
requirement of 86.253 (b)(1) contradicts the Act and must
be rewritten.
Commentators
1, 2, 3
Response
The Board disagrees. The language of
subsection 86.253(b) is taken directly from section 18(a.3)(2)
of the Act. Section 4.9 of the Act deals with the Department`s
discretionary ability to designate areas suitable for remining
whether or not an operator has submitted, or will submit, an application
to remine or reclaim the area. Section 4.9 is separate and distinct
from section 18(a.3) which deal with requirements for operators
to participate in any programs funded by the Remining Environmental
Enhancement Fund and the Remining Financial Assurance Fund. The
preamble of the proposed regulations specifically excluded Section 4.9
of the Act. The process for designating areas suitable for remining
may be the subject of future rulemaking.
Comment
Subsection 86.253 (b)(4) requires
applicants for all three incentive programs to demonstrate that
they have "the right to enter into and effect the property,
and if applicable, the right to remove structures, materials including
soil, rock, spoil, coal or coal refuse." Subsections 86.263 (1)
and 86.264 (b)(6)(i) contain very similar requirements.
IRRC recommends the EQB address the applicant's responsibility
to demonstrate the right to enter, mine, etc. in a single provision
such as Subsection 86.253 (b)(4).
Commentators
2, 5
Response
The Board disagrees with this recommendation.
The Board believes that Subsections 86.263 (1) and 86.264 (b)(6)(i)
differ substantively from Subsection 86.253 (b)(4) and from
each other. Subsection 86.253 (b)(4) requires a person who
wishes to utilize any of the three incentives to demonstrate his
right to enter onto and affect that property by remining or reclamation
and his right to remove materials as necessary to accomplish reclamation.
The removal of materials and structures is not the same as mining.
For example, the removal of abandoned equipment, buildings or
coal refuse differs from coal removal. In many cases the owners
of abandoned equipment, buildings or coal refuse may not be the
landowner.
Subsections 86.263(1) and 86.264 (b)(6)(i)
refer to the person's right to enter the property and mine coal
pursuant to Section 4 (a)(2)(F) of the Act. Subsection 86.263 (1)
provides notice to an operator that he must have the legal right
to enter and mine the property in order to be eligible for ROAP
while Subsection 86.264 (b)(6)(ii) identifies specific documents
which must be included in the operator's application for assistance.
REMINING OPERATOR'S ASSISTANCE PROGRAM
4. 86.261 Program services and 86.265
Application approval.
Comment
This regulation states that the Department
will select a consultant to perform these services. The commentators
recommend that the operator be given an opportunity to participate
in the selection of a qualified consultant.
Commentators
1, 5
Response
Section 86.261 reflects the Department's
ultimate responsibility over the remining operator's assistance
program. However, Section 86.265 has been revised to state that
the operator shall select a qualified consultant from the list
of consultants approved by the Department.
5. 86.262 Department responsibilities.
No comments were received.
6. 86.263 Eligibility for assistance.
Comment
Section 86.263 (3) refers to abandoned
mine lands or lands for which the Department has forfeited and
collected reclamation bonds. What about coal refuse, and shouldn't
this be included in Section 86.253 (b)?
Commentators
2, 3
Response
The definition of abandoned mine lands
includes unreclaimed coal refuse. As pointed out by the commentator,
this term is used in Section 86.263 (3). However, subsection 86.253(b)
has been revised to use the term "abandoned mine lands"
in paragraph (1).
7. 86.264 Applications for assistance
and 86.267 determination of data requirements.
Comment
The Department will be paying a consultant
to obtain information and prepare reports while Section 4.9 of
the Act clearly states that the Department shall prepare the report.
Commentators
1, 2, 3
Response
This rulemaking does not address Section
4.9 of the Act which deals with the Department`s discretionary
ability to designate areas suitable for remining whether or not
an operator has submitted, or will submit, a permit application
to remine the area. Furthermore, Section 4.10 of the Act
clearly requires the Department to pay for the information for
ROAP.
8. 86.266 Notice.
Comment
This regulation states that the Department
will inform the applicant if the application for assistance is
denied. What petition for redress of losses does the operator
have if the application is rejected or delayed due to shoddy work
of a consultant not chosen by the operator?
Commentator
1
Response
The commentator appears to be confusing
the application for assistance with a permit application. Section 86.266
deals only with the application for assistance under ROAP. The
mine operator is responsible for preparing this application.
Once the application for assistance is approved and a consultant
selected, the consultant is responsible for obtaining specific
information for use in a permit application. The Department will
make sure that this information is of adequate quality before
the consultant is paid. Additionally, Section 86.265 has
been revised to allow the operator to select a qualified consultant
to perform the services.
9. 86.268 Public records; evidence.
No comments were received.
10. 86.269 Basic qualifications for
consultants and laboratories.
Comment
The analytical laboratory should be
properly certified.
Commentators
1, 4, 5
Response
The Board believes that laboratories
will be properly qualified. In order to participate in ROAP,
the analytical laboratory must be on the list of qualified laboratories.
To be on this list, the laboratory must demonstrate to the Department's
satisfaction that it meets the applicable requirements of 86.269 (a).
Comment
Subcontracting laboratory services is
allowed. Subcontracting the services of other specialists such
as biologists, hydrologists, chemists, etc. should also be allowed.
Mr. Hydock stated that specialization of job tasks allows
market efficiency which itself allows the most efficient use of
limited government assets.
IRRC also recommends that this section
be redrafted so that it is clear to consultants and laboratories
that they can qualify for participation in ROAP individually or
as a group to perform all services or individually to perform
a subset of services to be funded by ROAP.
Commentators
1, 4, 5
Response
The Board agrees with the suggestion.
Subsection 86.269(d) has been redrafted to allow consultants
to subcontract various specialties in addition to laboratory services.
Comment
Section 86.269 (6)(iv) contains
a reference to "the Department's Overburden Sampling and
Testing Manual." Unless the Environmental Quality Board
intends to proceed with rulemaking for overburden analysis, we
would strongly recommend that (6) (iv) be deleted.
Commentator 4
Response
The Department and Mr. Ercole have
had a subsequent discussion on this issue. The Department explained
that the document referenced by the proposed regulation and entitled
Overburden Sampling and Testing Manual is used to describe
sampling and analytical procedures for overburden testing. Mr. Ercole
has withdrawn his objection to the reference to this document.
11. 86.270 Operator liability.
Comment
Section 86.270 (a)(4) requires
an operator to reimburse the Department for services performed
under this subchapter including interest if the operator fails
to mine within 3 years of obtaining a permit. There are many
factors beyond the operator's control which could result in an
operator failing to meet this requirement. Act 173 has no such
requirement.
Similarly Section 86.270 (a)(5)
requires reimbursement if the operator sells, transfers or assigns
the permit to an operator who does not meet the requirements of
86.253 (relating to operator qualification). Act 173 does not
provide for this requirement. Mr. Ercole suggested that,
if a provision to prevent fraud is necessary, this subsection
should be redrafted to provide that an operator must reimburse
the Department if it knowingly transfers the permit to an operator
who does not meet the qualifications in 86.253 and fails to complete
the reclamation plan in the transferred permit. The MRAB suggested
dropping 86.270(a)(5) in its entirety.
Commentators
4, 6
Response
While Act 173 contains no specific provisions
concerning reimbursement for ROAP services, Sections 4.2 (h)
and 18 (a.3) of the Act provide the Department with the authority
to establish a program which includes provisions for protecting
funds and accomplishing reclamation in a timely manner. The requirement
to begin mining within three years of receiving a permit utilizing
ROAP funds is not unreasonable. Furthermore, Section 86.40(b),
which relates to permit terms, states that a permit shall terminate
if coal mining activities have not begun with three years. If
the expected remining will not be accomplished in a timely manner,
then the money spent by the Department should be returned for
others to use. This same provision is also found in the small
operator assistance program (SOAP) at Section 86.94. Since
ROAP and SOAP are similar programs both in services provided and
in manner of operation, and since SOAP has operated effectively
for many years without any undue burden on participating operators,
the Board has not changed this section.
The Board also rejects the suggestion
to require reimbursement only if the operator knowingly transfers
the permit to an unqualified operator. It would be impossible
for the Department to determine if the first operator knew that
the other was not qualified. Likewise, the Board will not drop
86.270(a)(5). This requirement will not prevent the transfer
of a permit obtained with ROAP money. It merely requires the
operator who sells the permit to reimburse the Remining Environmental
Enhancement Fund for all ROAP money spent on the transferred permit
if the new operator is not qualified to participate in the remining
and reclamation incentives program. The seller may certainly
include the cost of reimbursement in the sale price.
FINANCIAL GUARANTEES (formerly PAYMENT
IN LIEU OF BOND)
12. 86.281 Financial guarantees to insure
reclamation - general.
No comments were received.
13. 86.282 Participation requirements.
Comment
The requirements for participating in
the payment in lieu of bond program are such that very few, if
any, operators can qualify. Additionally the "paperwork"
requirements are onerous enough to lead any operators who can
qualify to avoid the program. Some of the problems are:
_ Basing
eligibility on a profit ratio of 6.2% over the past five years
will rule out many companies. One recommendation is to use a
standard that demonstrates an operator's ability to earn a net
profit over a longer period of time such as five years.
_ This
regulation also requires statements from a CPA for the current
and preceding five years. While large companies may have their
financial statements audited annually, this may be an unreasonable
expense for small operators who do not otherwise need an independent
audit.
Commentators
2, 3, 4, 5, 6
Response
The Board has reconsidered and eased
the financial standards for participation in the financial guarantees
program. The Board has deleted the requirement for an operator
to have a 6.2% ratio of profit before taxes to total assets.
The remaining standards must be met only at the time the operator
applies for initial participation or for an increased level of
participation in the program. The annual demonstration has been
dropped. Financial statements from an officer of the operator's
bank or the person who manages the operator's accounts will be
accepted. Furthermore, Section 86.282(a)(2) has been expanded
to allow the Department to consider the operator`s ability to
obtain a letter of credit collateral bond in determining an operator`s
eligibility to participate in the financial guarantees program.
Comment
Mr. Ercole asked if the eligibility
test in 86.282(a)(2) should consider the denial of coverage by
surety companies as opposed to the ability to obtain coverage.
In support of this question the commentator suggested that the
General Assembly would not enact and encourage such an incentive
program if surety bonds were readily available to surface coal
mine operators.
Commentator
4
Response
Section 4.12 (a) of the Act
requires consideration of an operator's eligibility "...such
as financial tests and criteria for participation in the program,
including factors indicative of an operator's ability to complete
reclamation and payments into the fund..." The Board's understanding
of this language, as well as the interpretation of the MRAB, is
that the financial guarantees program is to be limited to operators
who are financially capable of making the annual payments and
completing the reclamation. One test of this is an ability to
obtain a surety bond. Denial of coverage by a surety suggests
that the operator may not be financially able to complete reclamation
and make payments.
Comment
In its informal comments on the proposed
86.282, OSM suggested that the Board define the following terms:
current assets, total assets, current liabilities, and total
liabilities.
OSM also asked what is meant in 86.282(a)(2)
by the phrase "...the remaining permit area."
Commentator
7
Response
The Board does not see the need to define
current assets, total assets, current liabilities and total liabilities.
These terms have a standard usage within the financial world.
Section 86.282(a)(2) refers to
a demonstration by the operator that it is able to obtain a surety
bond for a coal mining permit. The Board believes that most permits
which involve remining will also include the mining of areas which
do not qualify as remining areas. Therefore, these permits cannot
be covered in their entirety by the financial guarantees program.
The remaining permit area is that portion of a permit area which
is not part of the remining area.
14. 86.283 Procedures.
Comment
The Department has told IRRC that under
this program its average estimated cost to reclaim an acre of
abandoned mine land is $7,000. However, under the regular bonding
program pursuant to 86.145, the cost is $3,000 per acre for areas
being mined and $1,000 per acre for support areas. IRRC recommends
the Environmental Quality Board either establish a single reclamation
cost or provide a convincing argument for maintaining two different
reclamation amounts.
Commentator
5
Response
This comment results from a meeting
between Department staff and IRRC. The comment appears to indicate
a misunderstanding of the bonding program. The coal mining bonding
program consists of a per acre bond which is returned upon successful
reclamation and a per acre reclamation fee which is non-returnable.
The bond is posted at a rate of $3,000 per acre for areas to
be mined and $1,000 per acre for areas which support the mining
operation. The reclamation fee is deposited into the Surface
Mining Conservation and Reclamation Fund (SMCR Fund) and is used
to supplement forfeited bonds. The actual average cost to reclaim
a forfeited site is approximately $7,000 per acre. The SMCR Fund
makes up the difference between the actual cost of reclamation
and the bonds posted for the forfeited site.
Comment
Several commentators have said that
the proposed fee of 2.5% of the average per acre cost for the
Department to reclaim the mine site will not provide an economic
incentive to engage in remining activities. They also assert
the financial criteria are such that very few, if any, operators
can qualify and the paperwork requirements are prohibitively excessive.
Commentators
2, 3, 5, 7
Response
In response to these comments, the financial
standards for eligibility and the rate for determining the annual
payments have been eased.
15. 86.284 Forfeiture.
Comment
Section 86.284(d) provides that the
program will discontinue if 25% or greater of the outstanding
bond obligation for the financial guarantees program is subject
to forfeiture. This requirement is in accordance with the Act.
However, the Department has added that, if such an event occurs,
the participants in this program must substitute regular bonds
within 90 days or the operation will be ceased. The Act only
requires that the program be discontinued. The requirement for
immediate replacement with regular bonds is clearly contrary to
creating incentives for remining.
Commentator
4
Response
In light of Mr. Ercole's comments,
the Board has reread the language of Section 4.12(d) of the
Act. The proposed regulation originally interpreted that section
to mean the financial guarantees program would cease to exist
upon notice in the Pennsylvania Bulletin. However, the Board
finds that under Section 4.12 discontinuance is optional
and that the statute is silent regarding replacement of the reserved
funds with conventional bonds. Consequently, this regulation
has been revised so that upon discontinuance no additional participation
can be accepted. The outstanding obligations on the fund will
continue to be covered by the Remining Financial Assurance Fund
until released under the regulations dealing with bond release.
RECLAMATION BOND CREDITS
16. 86.291 Financial assurance for bond
credit-general.
No comments were received.
17. 86.292 Procedures and requirements.
Comment
Section 86.292(a)(3) asks the operator
to provide an estimate of the cost of reclamation. Why should
the operator provide an estimate when he already had to meet the
requirements of 86.253(b)(1) in demonstrating that the project
is technologically and economically feasible?
Commentators
1, 2, 3
Response
Subsection 4.13(a)(1) of the Act specifically
states that the Department shall require the operator to submit
an estimated cost of reclamation along with the proposal to reclaim
when applying for a bond credit. The operator's estimated cost
of reclamation will be used to determine the amount of the bond
credit to be earned. The operator's proposed reclamation plan
will provide the demonstration that the project is technologically
and economically feasible as required by 86.253(b)(1).
Comment
Section 86.292(b) allows the Department
to require a performance bond to ensure that the operator completes
the reclamation as proposed. What if the operator or Department
find that after reclamation has begun, instead of correcting or
eliminating a problem it creates a bigger problem. Mr. Hydock
and Mr. Mace recommended suspending the requirement for a
performance bond if the reclamation work is adding to or creating
off-site detrimental impacts. IRRC recommended rewriting 86.292
to allow an operator to submit amendments to the reclamation plan
subject to Department approval.
Commentators
1, 3, 5
Response
The Board disagrees with the recommendation
to suspend the requirement for a performance bond. The real issue
is not the performance bond since, under the Act, the bond only
guarantees completion of the work described in the approved reclamation
plan. The issue is the need to provide authority for amending
the approved reclamation plan. The Board has inserted a provision
in Section 86.292 to allow an operator, with Department approval,
to amend the reclamation plan.
Comment
According to 86.292(c)(5) the bond credit
agreement between the operator and the Department shall specify
a completion date. Three of the commentators stated that a completion
date cannot be specified because reclamation follows coal removal
and coal removal cannot be predicted because of market forces.
The IRRC expressed concern that an operator could be subject
to sanctions even if there were valid reasons for a delay in completing
the reclamation work. The IRRC recommended that the Board amend
subsection 86.292(d) to allow an extension for good cause.
Commentators
1, 2, 3, 5
Response
The Board disagrees that reclamation
will always follow coal removal. Many sites can be reclaimed
without coal removal. However, the Board agrees with IRRC that,
as written, the operator could be subject to sanctions even if
there were valid reasons for delays in completing the work. A
new 86.292(d) has been written to allow amendments to the agreement,
including an extension of the completion date. The Board believes
that this change will satisfy the concerns of the other commentators.
Comment
Proposed 86.292(c)(3) provides
that bond credit agreements between an operator and the Department
shall allow the Department to assess penalties for default including
a waiver of the right to appeal in the event of default. Since
these agreements are essentially voluntary, no such penalties
should be attached. The Department is adequately protected by
penal bonds. Furthermore, an operator should not be required
to waive the right to appeal a decision of the Department in order
to participate in this program. Paragraph (c)(3) should
be deleted in its entirety.
Commentators
4, 5
Response
While the Board does not agree with
certain aspects of the commentators' arguments, it does agree
to delete 86.292(c)(3). The Board, however, believes that the
potential for abuse of this program is significant. Precautions
are needed to minimize the possibility that an operator will redisturb
an area of abandoned mine lands, decide that the cost or effort
to complete reclamation as planned is unacceptable, and simply
leave the area. Since redisturbance typically results in increased
erosion and sedimentation, stabilization of the redisturbed area
will be necessary. In addition, since performance bonds will
not be posted on all projects, enforcement authority must remain
as an option. This authority is provided by 86.292(d) of the
proposed regulations. In reference to the comment about penal
bonds, the Board notes that these regulations provide for the
posting of performance bonds. Performance bonds are not penal
in nature since they only guarantee the completion of the work
specified in the agreement.
18. 86.293 Issuance.
Comment
Mr. Hydock, Mr. Brian Mace,
and Mr. Guy Mace indicated that the paperwork and time involved
in obtaining a bond credit plus the limited uses and limited availability
outweigh any incentive to participate.
In their informal comments on this regulation,
OSM and MRAB suggested that the payment cap of $3000 per acre
will only entice a few operators to reclaim abandoned mine lands.
Commentators
1, 2, 3, 6, 7
Response
The Board agrees that the amount of
bond credit on a per acre basis must be increased if participation
in this program is to be encouraged. The regulations have been
rewritten to make the bond credit equivalent to the lesser of
the operator's cost or the Department's cost to reclaim the project
area. As an additional encouragement, bond credits will be allowed
to be used a second time after being released from their first
use. The Board does not agree with the statement that paperwork
is excessive. There must be some assurance that the reclamation
work is well defined, that it accomplishes good reclamation and
that the public interest is protected.
19. 86.294 Uses and limitations.
No comments were received.
20. 86.295 Forfeiture.
No comments were received.