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COMMONWEALTH OF PENNSYLVANIA

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Pennsylvania Code



Subchapter J. REMINING AND
RECLAMATION INCENTIVES


GENERAL PROVISIONS

Sec.


86.251.    Purpose.
86.252.    Definitions.
86.253.    Operator and project qualification.

ROAP


86.261.    Program services.
86.262.    Department responsibilities.
86.263.    Eligibility for assistance.
86.264.    Applications for assistance.
86.265.    Application approval.
86.266.    Notice.
86.267.    Determination of data requirements.
86.268.    Public records; evidence.
86.269.    Basic qualifications for consultants and laboratories.
86.270.    Operator liability.

BONDING INCENTIVES


86.281.    Financial guarantees to insure reclamation—general.
86.282.    Participation requirements.
86.283.    Procedures.
86.284.    Forfeiture.
86.291.    Financial assurance for bond credit—general.
86.292.    Procedures and requirements.
86.293.    Issuance.
86.294.    Uses and limitations.
86.295.    Forfeiture.

Authority

   The provisions of this Subchapter J issued under section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20), unless otherwise noted.

Source

   The provisions of this Subchapter J adopted August 23, 1996, effective August 24, 1996, 26 Pa.B. 4181, unless otherwise noted.

GENERAL PROVISIONS


§ 86.251. Purpose.

 This subchapter provides incentives to encourage qualified operators to undertake reclamation and remining of abandoned mine lands and bond forfeiture sites for the purpose of eliminating hazards to human health and safety, abating pollution of surface and groundwaters and the contribution of sediment to adjacent areas, restoring land to beneficial uses and recovering remaining coal resources.

§ 86.252. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Abandoned mine lands—For the purposes of this subchapter, unreclaimed lands affected by surface or underground coal mining or coal refuse disposal activities, including bond forfeiture sites for which the bonds have been collected by the Department.

   Act—The Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19b).

   Bond credit—A specified amount of money reserved by the Department in the Remining Financial Assurance Fund under section 4.13 of the act (52 P. S. §  1396.4m) to be used by an operator to meet the bonding requirements of section 4 of the act (52 P. S. §  1396.4).

   Financial guarantee—A specified amount of money reserved by the Department in the Remining Financial Assurance Fund for a qualified operator’s permitted remining area as authorized by section 4.12 of the act (52 P. S. §  1396.4l).

   Qualified consultant—A designated public agency or private consulting firm which the Department has found capable of providing the services of ROAP.

   Qualified laboratory—A designated public agency or private analytical laboratory which the Department has found capable of providing the services of ROAP.

   ROAP—Remining Operator’s Assistance Program.

   Remining—Reaffecting and reclaiming abandoned mine lands, under a coal mining activity permit, which exhibit one or more of the following features:

     (i)   Highwalls, spoil piles, abandoned buildings and structures, unsealed deep mine openings, subsidence features or safety hazards.

     (ii)   Exposed or unvegetated coal refuse.

     (iii)   A source of excess settleable solids to stream flow.

     (iv)   A source of mine drainage pollution to surface or groundwaters.

     (v)   Pollution abatement areas as that term is defined in § §  87.202 and 88.502 (relating to definitions).

   Remining area—An area of land on which remining will take place, including that amount of previously undisturbed area up to 300 feet from the edge of the unreclaimed area which must be affected to achieve a final grade compatible with adjacent areas. Additional undisturbed land may be within a remining area if the permittee demonstrates that a larger area is needed to accomplish backfilling and grading of the unreclaimed area or is needed for support activities for the remining activity.

   Tangible net worth—Total assets minus intangibles such as goodwill and rights to patents or royalties.

Authority

   The provisions of this §  86.252 amended under section 5 of The Clean Streams Law (35 P. S. §  691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.4(a) and 1396.4b); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

Source

   The provisions of this §  86.252 amended August 21, 2015, effective August 22, 2015, 45 Pa.B. 4904. Immediately preceding text appears at serial pages (354289) to (354290).

Cross References

   This section cited in 25 Pa. Code §  86.162c (relating to Bioenergy Crop Bonding); 25 Pa. Code §  86.261 (relating to program services); and 25 Pa. Code §  290.105 (relating to beneficial use at abandoned mine lands).

§ 86.253. Operator and project qualification.

 (a)  To participate in the remining and reclamation incentives program established by this subchapter, a coal mining operator shall demonstrate that:

   (1)  The operator holds a valid coal mining license issued under section 3.1 of the act (52 P. S. §  1396.3a).

   (2)  The operator, a related party, a person who owns or controls the operator or a person who is owned or controlled by the operator, satisfies the requirements of §  86.37(a)(8)—(11) and (16) (relating to criteria for permit approval or denial).

   (3)  The operator, a related party, a person who owns or controls the operator or a person who is owned or controlled by the operator, has no liability for reclamation or pollution at the proposed abandoned mine site.

   (4)  The operator’s past history of compliance with environmental laws does not indicate a lack of intention or ability to comply with those laws or the regulations promulgated thereunder.

 (b)  For a project to be approved for reclamation under the remining and reclamation incentives program, the operator shall demonstrate that:

   (1)  The proposed activity is technologically and economically feasible at the proposed abandoned mine lands site and will not result in a violation of applicable effluent limitations or water quality standards.

   (2)  When applicable, the operator has submitted a mining permit application to the Department clearly indicating which areas the operator intends to remine and which areas, if any, are to be mined for the first time.

   (3)  When applicable, the operator has accurately calculated the amount of bond that would be needed to cover the area to be remined and the amount needed to cover the initial area of remining.

   (4)  The operator has the right to enter onto and affect the property and, if applicable, the right to remove structures or materials, including soil, spoil, rock, coal or coal refuse.

Cross References

   This section cited in 25 Pa. Code §  86.263 (relating to eligibility for assistance); 25 Pa. Code §  86.270 (relating to operator liability); 25 Pa. Code §  86.281 (relating to financial guarantees to insure reclamation—general); 25 Pa. Code §  86.282 (relating to participation requirements); and 25 Pa. Code §  86.292 (relating to procedures and requirements).

ROAP


§ 86.261. Program services.

 To the extent that funds are available in the Remining Environmental Enhancement Fund and in response to a request from a qualified remining operator, the Department will:

   (1)  Select and pay a qualified consultant to:

     (i)   Provide, in accordance with Chapter 87, Subchapter C and § §  88.21—88.27 and 88.29—88.33, a description of the existing resources within and adjacent to the proposed remining area that may be affected by the proposed surface coal mining activities.

     (ii)   Determine the probable hydrologic consequences of the proposed surface coal mining activities on the proposed remining area and adjacent area as remining areas are defined in §  86.252 (relating to definitions), in accordance with § §  87.69 and 88.49 (relating to protection of hydrologic balance).

     (iii)   Prepare a statement of the results of test borings or core samplings in accordance with § §  87.44 and 88.24 (relating to geology description; and geology).

     (iv)   Prepare a detailed description of the proposed surface coal mining activities showing the manner in which the proposed remining area will be mined and reclaimed in accordance with § §  87.54, 87.61—87.63, 87.65—87.84, or 88.41—88.44 and 88.46—88.62.

   (2)  Collect and provide general hydrologic information on the basin or subbasin watershed areas within which the proposed surface coal mining will occur. The information provided shall be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed remining area.

Cross References

   This section cited in 25 Pa. Code §  86.265 (relating to application approval); and 25 Pa. Code §  86.269 (relating to basic qualifications for consultants and laboratories).

§ 86.262. Department responsibilities.

 The Department will:

   (1)  Review requests for assistance and determine eligibility for assistance.

   (2)  Develop and maintain a list of qualified consultants and laboratories in accordance with §  86.269 (relating to basic qualifications for consultants and laboratories), select consultants and laboratories to perform program services and pay for services rendered.

   (3)  Conduct periodic evaluations of the program activities with the remining operator and consultant.

§ 86.263. Eligibility for assistance.

 An operator is eligible for assistance if the requirements of §  86.253(a) (relating to operator and project qualification) are met and the operator:

   (1)  Has a legal right to enter and commence mining within the proposed remining area.

   (2)  Intends to apply for a permit and to conduct surface coal mining activities and reclamation within the proposed remining area.

   (3)  Proposes to remine an area which contains abandoned mine lands.

§ 86.264. Applications for assistance.

 (a)  Persons wishing to receive assistance shall file an application for remining operator assistance with the Department.

 (b)  The application shall contain the following information:

   (1)  A statement of intent to file a permit application under this chapter and to conduct the proposed surface coal mining and reclamation activities on the proposed remining area.

   (2)  The names and addresses of:

     (i)   The intended permit applicant.

     (ii)   The intended contract operator, if different from the applicant.

     (iii)   Controlling interests in accordance with §  86.62 (relating to identification of interests).

   (3)  The mining license number of the applicant and contract operator identification number, if applicable.

   (4)  A description of:

     (i)   The coal to be mined and the method of coal mining activities proposed.

     (ii)   The number of acres of remining area and the number of acres of abandoned mine land in the proposed remining area.

     (iii)   A general statement of the probable depth and thickness of the coal resource or a general statement of the percentage and quality of recoverable coal contained in the coal refuse.

   (5)  A United States Geological Survey topographic map or facsimile thereof of 1:24000 scale or larger which clearly shows:

     (i)   The area of abandoned mine land to be affected and the natural drainage area above and below the proposed remining area.

     (ii)   The names of property owners within the proposed remining area and of adjacent lands.

     (iii)   The location of existing structures and developed water sources within the proposed remining area and adjacent lands.

     (iv)   The location of existing and proposed test borings or core samplings and the location and extent of known workings of surface and underground mines.

   (6)  Copies of documents which show:

     (i)   The applicant has a legal right to enter and commence surface coal mining within the proposed remining area.

     (ii)   A legal right of entry has been obtained for Department, consultant and laboratory personnel to inspect the lands proposed to be mined and adjacent lands which may be affected in order to collect environmental data or install necessary instruments in accordance with §  86.64 (relating to right of entry).

 (c)  The application shall be attested by a notary public and signed by an officer, partner or owner of the company.

§ 86.265. Application approval.

 (a)  If the Department finds that the applicant is eligible for assistance, and it is not aware of information that would preclude issuance of a surface coal mine activities permit to the applicant for mining in the area proposed, it will:

   (1)  Determine the minimum data requirements necessary to meet the provisions of § §  86.261 and 86.267 (relating to program services; and determination of data requirements).

   (2)  Provide the applicant with a list of qualified consultants.

 (b)  The applicant may select the services of one or more qualified consultants or qualified laboratories, subject to the approval of the Department, to perform the required data collection, analyses and the preparation of maps, cross sections and reports.

 (c)  The granting of assistance under this program will not be a factor in the Department’s decision on a subsequently filed surface coal mine activities permit application.

§ 86.266. Notice.

 (a)  If the application for assistance is approved, the Department will provide the applicant a copy of the appropriate work orders for the services to be provided and the final approved report.

 (b)  The Department will inform the applicant in writing if the application for assistance is denied and the reasons for denial.

 (c)  The applicant shall immediately notify the Department and the designated consultant if at any time the applicant becomes aware of circumstances which could preclude the issuance of a permit to the applicant for the proposed remining area.

§ 86.267. Determination of data requirements.

 (a)  The Department will determine the data collection requirements needed to meet the objectives of the program for each applicant or group of applicants.

 (b)  The data requirements will be based on:

   (1)  The extent of currently available hydrologic and overburden analysis data for the applicable area.

   (2)  The data collection, analysis and evaluation requirements of this chapter and either Chapter 87 or Chapter 88 (relating to surface mining of coal; and anthracite coal), whichever is applicable.

Cross References

   This section cited in 25 Pa. Code §  86.265 (relating to application approval).

§ 86.268. Public records; evidence.

 Upon approval of the ROAP project report submitted by the consultant, the data collected under this Program shall be made available to interested persons.

§ 86.269. Basic qualifications for consultants and laboratories.

 (a)  To be designated as a qualified consultant or qualified laboratory, the consultant or laboratory shall demonstrate that it:

   (1)  Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology and chemistry applicable to the work to be performed as either a consulting firm, analytical water laboratory or analytical overburden laboratory.

   (2)  Is capable of collecting necessary field data and samples.

   (3)  Has adequate space for stationary equipment, material preparation, cleaning and sterilization of necessary equipment, and storage and space to accommodate periods of peak workloads.

   (4)  Meets the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. § §  651—678).

   (5)  Has the financial capability and business organization necessary to perform the work required.

   (6)  Has analytical and monitoring equipment capable of meeting the applicable standards and methods contained in:

     (i)   The current edition of Standard Methods of the Examination of Water and Waste Water, prepared and published jointly by the American Public Health Association, American Water Works Association and Water Pollution Control Federation. (American Public Health Association, 1015 Fifteenth Street, N.W., Washington, DC 20005).

     (ii)   The current edition of the Environmental Protection Agency (EPA) Methods for Chemical Analysis of Water and Wastes, as amended. The standards contained therein are incorporated by reference.

     (iii)   The EPA standards as described in 40 CFR Part 136 (relating to guidelines establishing test procedures for the analysis of pollutants).

     (iv)   The Department’s Overburden Sampling and Testing Manual.

   (7)  Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic, engineering or analytical methods or by those appropriate methods or guidelines for data acquisition recommended by the Department.

 (b)  The qualified consultant shall be capable of performing the services under §  86.261 (relating to program services). Subcontractors may be used to provide the services required if the subcontractor is identified by the qualified consultant and approved by the Department.

§ 86.270. Operator liability.

 (a)  The operator shall reimburse the Department for the cost of the services performed under this subchapter, including interest from the date the Department demands reimbursement, if the operator does one of the following:

   (1)  Submits false information.

   (2)  Fails to provide the services required to complete the permit application, including submission of reclamation bond.

   (3)  Fails to submit a complete surface mine activities permit application within 1 year from the date of receipt of the approved consultant report, unless the report indicates that the application is not approvable for technical reasons.

   (4)  Fails to mine within 3 years after obtaining a permit.

   (5)  Sells, transfers or assigns the permit to an operator who does not meet the requirements of §  86.253 (relating to operator and project qualification).

 (b)  If the operator fails to reimburse the Department under subsection (a), licenses and permits may be suspended by the Department.

 (c)  If funds allocated for the services are less than those required to pay for the services, the operator is responsible for costs exceeding the amount of funds allocated for the services provided to the operator.

 (d)  The Department may waive the reimbursement requirement of subsection (a) if the operator demonstrates one of the following:

   (1)  The consultant and laboratory reports indicate that mining could have potentially adverse environmental impacts.

   (2)  The application for a mining permit is denied as a result of potentially adverse environmental impacts or other technical reasons beyond the operator’s control.

   (3)  Other factors are identified which would preclude mining of the site, and the operator does not intend to file a mine permit application.

BONDING INCENTIVES


§ 86.281. Financial guarantees to insure reclamation—general.

 (a)  In the Remining Financial Assurance Fund there is a special account providing financial guarantees for qualified operators who conduct remining. Funds in this special account may be used to financially assure bonding obligations under §  86.143 (relating to requirement to file a bond) of a qualified operator engaged in remining.

 (b)  The financial guarantee applies to a permit with remining areas approved by the Department. Operators who wish to participate in this program shall demonstrate, for each permit, their eligibility under § §  86.253 and 86.282 (relating to operator and project qualification; and participation requirements). The amount will be the estimated cost for the Department to reclaim the remining area, subject to the limitations established in subsection (d).

 (c)  The Department will designate a specified amount of the financial guarantees special account in the Remining Financial Assurance Fund to financially assure reclamation obligations on the permits with an approved remining area.

 (d)  The Department may not issue financial guarantees on a permit in excess of 10% of the then current designated amount in the special account in the Remining Financial Assurance Fund. The Department will not issue financial guarantees to a mine operator if the aggregate amount of financial guarantees on permits issued to the operator will exceed 30% of the then current designated amount in the special account in the Remining Financial Assurance Fund. The Department will not issue additional financial guarantees when the aggregate amount of outstanding financial guarantees exceeds that amount resulting from dividing the current designated amount in the special account in the Remining Financial Assurance Fund by the historical rate of bond forfeiture under §  86.181 (relating to general) with a margin of safety determined by the Department.

 (e)  Upon declaration of forfeiture, the specified amount of the financial guarantee from the financial guarantee special account will be used with other bonds forfeited on the permit by the Department to complete reclamation of the mine site in accordance with the procedures and criteria in § §  86.187—86.190. If the actual cost of reclamation by the Department exceeds the specified amount of the financial guarantee, additional funds from the Remining Financial Assurance Fund may be used to complete reclamation.

 (f)  The Department will hold in reserve in the remining financial assurance fund funds that are not designated to underwrite remining financial guarantees. The Department will use funds held in reserve in the remining financial assurance fund to assure the availability of funds to cover reclamation liabilities when there is a mine operator bond forfeiture under §  86.181.

Authority

   The provisions of this §  86.281 amended under section 5 of The Clean Streams Law (35 P.S. §  691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § §  1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. §  30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. §  1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. §  510-20).

Source

   The provisions of this §  86.281 amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial page (357510).

Cross References

   This section cited in 25 Pa. Code §  86.282 (relating to participation requirements).

§ 86.282. Participation requirements.

 (a)  Upon completion of the technical review of a permit application and receipt of a request for bond, an operator may apply to participate in the financial guarantees program for a remining area if the requirements of §  86.253 (relating to operator and project qualification) are met. To participate in this program, an operator shall demonstrate to the Department’s satisfaction one of the following:

   (1)  The operator would be able to post a collateral bond otherwise required by this chapter and demonstrate appropriate experience in coal mining and reclamation.

     (i)   The operator shall demonstrate ability to post a collateral bond by meeting the following conditions for the operator’s most recently completed fiscal year and the 2 preceding fiscal years:

       (A)   A ratio of current assets to current liabilities of 1.5 or greater.

       (B)   A ratio of total liabilities to tangible net worth of 3 or less.

     (ii)   The operator shall submit a notarized statement signed by the operator and an independent certified public accountant (CPA), an officer of a financial institution with which the operator conducts business or other person or entity responsible for the accounts of the operator. The statement shall list the operator’s ratio of current assets to current liabilities and the operator’s ratio of total liabilities to tangible net worth for the most recently completed fiscal year and the 2 preceding fiscal years.

     (iii)   The operator shall demonstrate appropriate experience in coal mining and reclamation by showing that he has had a coal mining license under section 3.1 of the act (52 P. S. §  1396.3a) for 5 years or the person designated by the operator to manage the operation has a minimum of 5 years of experience in coal mining and reclamation.

   (2)  The operator would be able to obtain a surety bond otherwise required under this chapter. The operator will demonstrate this by submitting a letter of acceptance from a surety company licensed to do business in this Commonwealth and which writes bonds for reclamation of mine sites located in this Commonwealth or by submitting a surety bond for an equal portion of the remaining reclamation liability for the proposed remining site. The acceptance letter shall indicate the complete name and address of the surety company and state that the surety company would write the bond.

   (3)  The operator would be eligible to self-bond under §  86.159 (relating to self-bonding).

   (4)  The operator has previously participated in the remining financial guarantee program and met its reclamation obligations and made timely payments. An operator will be eligible under this subsection if it has not been cited through a notice of violation under §  86.165(a) (relating to failure to maintain proper bond) within the previous 3 years prior to the request for a remining financial guarantee.

 (b)  Notwithstanding subsection (a), an operator will not be approved to participate in the financial guarantees program when the financial guarantees exceed the limits established in §  86.281(d) (relating to financial guarantees to insure reclamation—general).

 (c)  If an operator, CPA or other person submits false information in the financial test or falsifies other information required by this section, the operator shall be ineligible to participate in the financial guarantees program. In addition, the operator, the CPA or other person are subject to 18 Pa.C.S. § §  4903 and 4904 (relating to false swearing; and unsworn falsification to authorities).

Authority

   The provisions of this § 86.282 amended under section 5 of The Clean Streams Law (35 P.S. §  691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § §  1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. §  30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. §  1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. §  510-20).

Source

   The provisions of this §  86.282 amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial pages (357511) to (357512).

Cross References

   This section cited in 25 Pa. Code §  86.281 (relating to financial guarantees to insure reclamation—general).

§ 86.283. Procedures.

 (a)  An operator’s participation in the financial guarantees program is subject to the following:

   (1)  Annual payments will be 1% of the total amount of the remining financial guarantee.

   (2)  The first payment is due upon receipt of notice of the Department’s approval of the operator’s application to participate in the program. Payments shall be made annually thereafter concurrent with the license renewal or in accordance with a schedule determined by the Department.

   (3)  Payments are not refundable and will be deposited into the financial guarantees special account in the Remining Financial Assurance Fund to be used in case of operator forfeiture. When the special account becomes actuarially sound, excess payments may be used under section 18(a.1) and (a.2) of the act (52 P. S. §  1396.18(a.1) and (a.2)).

   (4)  The operator may not substitute financial guarantees for existing collateral or surety bonds.

 (b)  The operator is responsible for making the annual payment as calculated by the Department, until the amount of the bond is reduced or released in accordance with § §  86.170—86.172 (relating to scope; procedures for seeking release of bond; and criteria for release of bond).

 (c)  An operator approved to participate in the financial guarantees program is not required to pay the per acre reclamation fee required by §  86.17(e) (relating to permit and reclamation fees) for the remining area.

 (d)  The Department will issue a letter to the operator specifying the amount of money in the financial guarantees special account in the Remining Financial Assurance Fund allocated as financial assurance for the operator’s reclamation obligations on the remining area. A copy of the letter will be kept in the operator’s permit application file.

 (e)  The obligation covered by the financial guarantees program bond will be reduced or released prior to any other bond submitted by the operator to cover the reclamation obligations of that permit.

 (f)  If a discharge not meeting the effluent criteria in §  87.102, §  88.92, §  88.187, §  88.292, §  89.52 or §  90.102 develops on a permit on which a financial guarantee is being used, the operator shall within 90 days of receipt of written notice by the Department replace the financial guarantee with other types of financial assurance mechanisms authorized for the purpose of covering the costs of treating the discharge. If an acceptable bond has not been received and approved by the Department within the specified time limit, the Department will issue a cessation order for mining activities except for reclamation and other activities required to maintain the permit area.

Source

   The provisions of this §  86.283 amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084. Immediately preceding text appears at serial page (219204).

Cross References

   This section cited in 25 Pa. Code §  86.17 (relating to permit and reclamation fees); and 25 Pa. Code §  86.165 (relating to failure to maintain proper bond).

§ 86.284. Forfeiture.

 (a)  Upon forfeiture under §  86.181 (relating to general), the Department will declare forfeit the specified amount of the financial guarantee for the permit in the financial guarantees special account in the Remining Financial Assurance Fund in addition to other bonds posted by the operator to cover the reclamation obligation on the permit.

 (b)  The Department’s declaration of forfeiture under this section does not excuse the operator from meeting the requirements of this chapter or other requirements under the act.

 (c)  Upon declaration of forfeiture, the Department will use the bond money posted by the operator and the specified amount of the financial guarantee to complete the reclamation of the mine site in accordance with the procedures and criteria in § §  86.187—86.190.

 (d)  The financial guarantees program may be discontinued immediately and notice published in the Pennsylvania Bulletin, if 25% or greater of the total outstanding financial guarantees are subject to forfeiture. If the financial guarantees program is discontinued, no additional financial guarantees may be approved. Outstanding financial guarantees will remain in effect until released under § §  86.170—86.175.

 (e)  The financial guarantees program may be suspended upon notice in the Pennsylvania Bulletin when the number of participating permits declared forfeit is equal to that number of permits calculated by multiplying the historical rate of forfeiture plus a margin of safety times the number of permits participating in the program. No additional financial guarantees will be approved until the total amount of financial guarantees declared forfeit has been replaced through the accumulation of annual payments or by other means.

Authority

   The provisions of this §  86.284 amended under section 5 of The Clean Streams Law (35 P.S. §  691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § §  1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. §  30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. §  1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. §  510-20).

Source

   The provisions of this §  86.284 amended June 17, 2011, effective June 18, 2011, 41 Pa.B. 3084; amended March 13, 2020, effective March 14, 2020, 50 Pa.B. 1508. Immediately preceding text appears at serial page (378213).

§ 86.291. Financial assurance for bond credit—general.

 (a)  In the Remining Financial Assurance Fund there is a special account providing financial assurance for the bond credit program. Funds in the special account may be used to financially assure bond obligations of a qualified operator who has voluntarily completed a reclamation project approved by the Department under the bond credit program.

 (b)  Under the bond credit program, the Department will reserve a portion of the bond credit special account in the Remining Financial Assurance Fund as collateral for a bond credit upon execution of the agreement for reclamation provided for in §  86.293 (relating to issuance). The amount of the reserve will be the lesser of the operator’s cost of reclamation or the Department’s cost of reclamation for the abandoned mine lands to be reclaimed under the agreement. The Department will not reserve funds for bond credits in excess of the amount of funds available in the special account.

 (c)  Upon declaration of forfeiture on a permit where a bond credit is being used, the reserved funds will be used by the Department in accordance with the procedures and criteria in § §  86.187—86.190.

§ 86.292. Procedures and requirements.

 (a)  To apply for a bond credit a qualified mining operator shall, at a minimum:

   (1)  Meet the requirements of §  86.253 (relating to operator and project qualification).

   (2)  Submit a proposed reclamation plan for abandoned mine lands. This plan shall include provisions for water handling and erosion and sedimentation control to prevent offsite impacts from the reclamation activities.

   (3)  Provide an estimate of the cost of reclamation.

   (4)  Demonstrate that the operator, any related party or any person who is owned or controlled by the operator or who owns or controls the operator, bears no responsibility for reclamation of the area to be reclaimed, including, but not limited to, obligations under a mining permit, reclamation under section 18 of the act (52 P. S. §  1396.18) or reclamation under a contract with the Department including abandoned mine land contracts.

 (b)  If the proposed reclamation activities have potential for significant offsite impacts, the Department may require, as a condition of approving the proposed reclamation plan, that the operator post a performance bond at least in an amount necessary to ensure that the operator completes the reclamation as proposed. The performance bond shall be released by the Department upon completion of the work described in the approved reclamation plan.

 (c)  Upon approval of the proposed reclamation plan and performance bond, if required, the Department will execute an agreement with the operator on forms prepared and furnished by the Department. At a minimum, the agreement will:

   (1)  Require the reclamation to be completed in accordance with the approved reclamation plan.

   (2)  State the bond credit amount which will be extended upon satisfactory completion of the reclamation work.

   (3)  Specify a date by which reclamation work is expected to be completed.

 (d)  The bond credit agreement may be amended or terminated at any time by mutual consent of the operator and the Department. Amendments may include changes to the approved reclamation plan, including the type and extent of reclamation, the completion and termination dates and the amount of bond credit. All areas affected by the operator’s activities shall be permanently stabilized in accordance with Chapter 102 (relating to erosion control) before the agreement may be terminated.

 (e)  An operator who fails to complete the reclamation as specified in the agreement will be subject to enforcement action by the Department, including, but not limited to, assessment of civil penalties, license suspension or revocation, permit suspension or revocation.

Cross References

   This section cited in 25 Pa. Code §  86.293 (relating to issuance).

§ 86.293. Issuance.

 Upon a finding by the Department that the operator has met the terms of the agreement established by §  86.292(c) (relating to procedures and requirements) and section 4.13 of the act (52 P. S. §  1396.4m), the Department will issue abond credit letter to the operator in the amount specified in the agreement. This amount is the amount of money in the bond credit special account in the Remining Financial Assurance Fund which has been reserved as collateral for the operator’s reclamation obligation.

Cross References

   This section cited in 25 Pa. Code §  86.291 (relating to financial assurance for bond credit—general); and 25 Pa. Code §  86.294 (relating to uses and limitations).

§ 86.294. Uses and limitations.

 (a)  An operator may apply a bond credit to an original or additional bond required under §  86.143 (relating to requirement to file a bond) for a permit issued for surface or underground mining, coal preparation or coal refuse disposal.

 (b)  An operator may use a bond credit or part of a bond credit on a single permit or multiple permits. A bond credit or part of a bond credit may be used two times; however, it cannot be used a second time until it is released from its first use under § §  86.170—86.175.

 (c)  A bond credit may be used in combination with other types of bonds authorized by the act.

 (d)  A bond credit may be transferred to a qualified operator, as authorized by section 4.13 of the act (52 P. S. §  1396.4m).

 (e)  A bond credit may not be used to bond water loss or to bond long-term water treatment.

 (f)  If a discharge not meeting the effluent criteria of §  87.102, §  88.92, §  88.187, §  88.292, §  89.52 or §  90.102 develops on a permit on which a bond credit is being used, the operator shall within 90 days of receipt of written notice by the Department replace the bond credit with other types of bonds authorized by the act for that purpose. If an acceptable bond has not been received and approved by the Department within the specified time limit, the Department will issue a cessation order for mining activities except for reclamation and other activities required to maintain the permit area.

 (g)  Bond credits will be released prior to any other surety or collateral bond on a permit area.

 (h)  A bond credit or part of a bond credit that is not used within 5 years from the date it is issued under §  86.293 (relating to issuance) or released under § §  86.170—86.175 will expire, including bond credits that have been transferred.

§ 86.295. Forfeiture.

 (a)  Upon forfeiture under §  86.181 (relating to general), the Department will declare forfeit the amount reserved in the bond credit special account in the Remining Financial Assurance Fund in addition to other bonds posted by the operator to cover the reclamation obligation on a permit.

 (b)  The Department’s declaration of forfeiture under this section does not excuse the operator from meeting the requirements of this chapter or the act.

 (c)  Upon declaration of forfeiture and collection of the bond credit, the Department will use the bond money and reserved funds to complete the reclamation of the mine site in accordance with the procedures and criteria in § §  86.187—86.190.



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