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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY TOBASH, GOODMAN, KNOWLES, PYLE, EVERETT, GEIST, HEFFLEY, HELM, HENNESSEY, HESS, HUTCHINSON, QUINN, STERN, SWANGER AND TOOHIL, AUGUST 22, 2011 |
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| REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, AUGUST 22, 2011 |
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| AN ACT |
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1 | Amending the act of May 31, 1945 (P.L.1198, No.418), entitled, |
2 | as amended, "An act providing for the conservation and |
3 | improvement of land affected in connection with surface |
4 | mining; regulating such mining; providing for the |
5 | establishment of an Emergency Bond Fund for anthracite deep |
6 | mine operators; and providing penalties," further providing |
7 | for mining permit, reclamation plan and bond; and providing |
8 | for land reclamation financial guarantees. |
9 | The General Assembly of the Commonwealth of Pennsylvania |
10 | hereby enacts as follows: |
11 | Section 1. Section 4(d) of the act of May 31, 1945 |
12 | (P.L.1198, No.418), known as the Surface Mining Conservation and |
13 | Reclamation Act, amended December 18, 1992 (P.L.1384, No.173), |
14 | is amended to read: |
15 | Section 4. Mining Permit; Reclamation Plan; Bond.--* * * |
16 | (d) Prior to commencing surface mining, the permittee shall |
17 | file with the department a bond for the land affected by each |
18 | operation on a form to be prescribed and furnished by the |
19 | department, payable to the Commonwealth and conditioned that the |
20 | permittee shall faithfully perform all of the requirements of |
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1 | this act and of the act of June 22, 1937 (P.L.1987, No.394), |
2 | known as "The Clean Streams Law," the act of January 8, 1960 |
3 | (1959 P.L.2119, No.787), known as the "Air Pollution Control |
4 | Act," the act of September 24, 1968 (P.L.1040, No.318), known as |
5 | the "Coal Refuse Disposal Control Act," and, where applicable, |
6 | of the act of July 31, 1968 (P.L.788, No.241), known as the |
7 | "Pennsylvania Solid Waste Management Act," the act of July 7, |
8 | 1980 (P.L.380, No.97), known as the "Solid Waste Management |
9 | Act," or the act of November 26, 1978 (P.L.1375, No.325), known |
10 | as the "Dam Safety and Encroachments Act": Provided, however, |
11 | That an operator posting a bond sufficient to comply with this |
12 | section of the act shall not be required to post a separate bond |
13 | for the permitted area under each of the acts hereinabove |
14 | enumerated: And provided further, That the foregoing proviso |
15 | shall not prohibit the department from requiring additional bond |
16 | amounts for the permitted area should such an increase be |
17 | determined by the department to be necessary to meet the |
18 | requirements of this act. The amount of the bond required shall |
19 | be in an amount determined by the department based upon the |
20 | total estimated cost to the Commonwealth of completing the |
21 | approved reclamation plan, or in such other amount and form as |
22 | may be established by the department pursuant to regulations for |
23 | an alternate coal bonding program which shall achieve the |
24 | objectives and purposes of the bonding program. Said estimate |
25 | shall be based upon the permittee's statement of his estimated |
26 | cost of fulfilling the plan during the course of his operation, |
27 | inspection of the application and other documents submitted, |
28 | inspection of the land area, and such other criteria as may be |
29 | relevant, including, but not limited to, the probable difficulty |
30 | of reclamation giving consideration to such factors as |
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1 | topography, geology of the site, hydrology, the proposed land |
2 | use and the additional cost to the Commonwealth which may be |
3 | entailed by being required to bring personnel and equipment to |
4 | the site after abandonment by the permittee, in excess of the |
5 | cost to the permittee of performing the necessary work during |
6 | the course of his surface mining operations. When the plan |
7 | involves the reconstruction or relocation of any public road or |
8 | highway, the amount of the bond shall include an amount |
9 | sufficient to fully build or restore the road or highway to a |
10 | condition approved by the Department of Transportation. No bond |
11 | shall be filed for less than ten thousand dollars ($10,000.00) |
12 | for the entire permit area. Liability under such bond shall be |
13 | for the duration of the surface mining at each operation, and |
14 | for a period of five full years after the last year of augmented |
15 | seeding and fertilizing and any other work to complete |
16 | reclamation to meet the requirements of law and protect the |
17 | environment, unless released in part prior thereto as |
18 | hereinafter provided. The bond or collateral required herein |
19 | must be in an amount and on a form containing such terms and |
20 | conditions as approved by the department and may be a surety |
21 | bond executed by the operator and a corporate surety licensed to |
22 | do business in this Commonwealth and approved by the secretary; |
23 | it may be cash; it may be automatically renewable irrevocable |
24 | letters of credit which may be terminated by the bank at the end |
25 | of the term only upon the bank giving ninety (90) days' prior |
26 | written notice to the permittee and the department; it may be |
27 | negotiable bonds of the United States Government or the |
28 | Commonwealth of Pennsylvania, the Pennsylvania Turnpike |
29 | Commission, The General State Authority, the State Public School |
30 | Building Authority or any municipality within this Commonwealth; |
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1 | it may be a life insurance policy which is and states on its |
2 | face that it is fully paid and noncancelable with a cash |
3 | surrender value irrevocably assigned to the department at least |
4 | equal to the amount of the required bonds and which shall not be |
5 | borrowed against and shall not be utilized for any other purpose |
6 | than financial assurance assuring reclamation; it may be an |
7 | annuity or trust fund of which the department is the irrevocably |
8 | named beneficiary; it may be a land reclamation financial |
9 | guarantee consistent with section 19.2 of this act and the |
10 | department's regulations implementing the land reclamation |
11 | financial guarantee program; or it may be other instruments |
12 | which the Environmental Quality Board may authorize through |
13 | regulation. The stated amount of irrevocable letters of credit |
14 | and the market value of negotiable securities shall be equal at |
15 | least to the amount of the required bond. Combinations of |
16 | bonding instruments may be allowed pursuant to regulations |
17 | adopted by the Environmental Quality Board. The secretary shall, |
18 | upon receipt of any such deposit of cash, letters of credit or |
19 | negotiable bonds immediately place the same with the State |
20 | Treasurer, whose duty it shall be to receive and hold the same |
21 | in the name of the Commonwealth, in trust, for the purposes for |
22 | which such deposit is made. The State Treasurer shall at all |
23 | times be responsible for the custody and safekeeping of such |
24 | deposits. The permittee making the deposit shall be entitled |
25 | from time to time to demand and receive from the State |
26 | Treasurer, on the written order of the secretary, the whole or |
27 | any portion of any collateral so deposited, upon depositing with |
28 | him, in lieu thereof, other collateral of the classes herein |
29 | specified having a market value at least equal to the sum of the |
30 | bond, and also to demand, receive and recover the interest and |
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1 | income from said negotiable bonds as the same becomes due and |
2 | payable: Provided, however, That where negotiable bonds, |
3 | deposited as aforesaid, mature or are called, the State |
4 | Treasurer, at the request of the permittee, shall convert such |
5 | negotiable bonds into such other negotiable bonds of the classes |
6 | herein specified as may be designated by the permittee: And, |
7 | provided further, That where notice of intent to terminate a |
8 | letter of credit is given, the department shall give the |
9 | permittee thirty (30) days' written notice to replace the letter |
10 | of credit with other acceptable bond guarantees as provided |
11 | herein, and if the permittee fails to replace the letter of |
12 | credit within the thirty (30) day notification period, the |
13 | department shall draw upon and convert such letter of credit |
14 | into cash and hold it as a collateral bond guarantee; or the |
15 | department, in its discretion, may accept a self-bond from the |
16 | permittee, without separate surety, if the permittee |
17 | demonstrates to the satisfaction of the department a history of |
18 | financial solvency, continuous business operation and continuous |
19 | efforts to achieve compliance with all United States of America |
20 | and Pennsylvania environmental laws, and, meets all of the |
21 | following requirements: |
22 | (1) The permittee shall be incorporated or authorized to do |
23 | business in Pennsylvania and shall designate an agent in |
24 | Pennsylvania to receive service of suits, claims, demands or |
25 | other legal process. |
26 | (2) The permittee or if the permittee does not issue |
27 | separate audited financial statements, its parent, shall provide |
28 | audited financial statements for at least its most recent three |
29 | (3) fiscal years prepared by a certified public accountant in |
30 | accordance with generally accepted accounting principles. Upon |
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1 | request of the permittee, the department shall maintain the |
2 | confidentiality of such financial statements if the same are not |
3 | otherwise disclosed to other government agencies or the public. |
4 | (3) During the last thirty-six (36) calendar months, the |
5 | applicant has not defaulted in the payment of any dividend or |
6 | sinking fund installment or preferred stock or installment on |
7 | any indebtedness for borrowed money or payment of rentals under |
8 | long-term leases or any reclamation fee payment currently due |
9 | under the Federal Surface Mining Control and Reclamation Act of |
10 | 1977, 30 U.S.C. § 1232, for each ton of coal produced in the |
11 | Commonwealth of Pennsylvania. |
12 | (4) The permittee shall have been in business and operating |
13 | no less than ten (10) years prior to filing of application |
14 | unless the permittee's existence results from a reorganization, |
15 | consolidation or merger involving a company with such longevity. |
16 | However, the permittee shall be deemed to have met this |
17 | requirement if it is a majority-owned subsidiary of a |
18 | corporation which has such a ten (10) year business history. |
19 | (5) The permittee shall have a net worth of at least six |
20 | times the aggregate amount of all bonds applied for by the |
21 | operator under this section. |
22 | (6) The permittee shall give immediate notice to the |
23 | department of any significant change in managing control of the |
24 | company. |
25 | (7) A corporate officer of the permittee shall certify to |
26 | the department that forfeiture of the aggregate amounts of self- |
27 | bonds furnished for all operations hereunder would not |
28 | materially affect the permittee's ability to remain in business |
29 | or endanger its cash flow to the extent it could not meet its |
30 | current obligations. |
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1 | (8) The permittee may be required by the department to |
2 | pledge real and personal property to guarantee the permittee's |
3 | self-bond. The department is authorized to acquire and dispose |
4 | of such property in the event of a default to the bond |
5 | obligation and may use the moneys in the Surface Mining |
6 | Conservation and Reclamation Fund to administer this provision. |
7 | (9) The permittee may be required to provide third party |
8 | guarantees or indemnifications of its self-bond obligations. |
9 | (10) The permittee shall provide such other information |
10 | regarding its financial solvency, continuous business operation |
11 | and compliance with environmental laws as the department shall |
12 | require. |
13 | (11) An applicant shall certify to the department its |
14 | present intention to maintain its present corporate status for a |
15 | period in excess of five (5) years. |
16 | (12) A permittee shall annually update the certifications |
17 | required hereunder and provide audited financial statements for |
18 | each fiscal year during which it furnishes self-bonds. |
19 | (13) The permittee shall pay an annual fee in the amount |
20 | determined by the department of the cost to review and verify |
21 | the permittee's application for self-bonding and annual |
22 | submissions thereafter. |
23 | * * * |
24 | Section 2. The act is amended by adding a section to read: |
25 | Section 19.2. Land Reclamation Financial Guarantees.--(a) |
26 | The department shall establish a program to provide land |
27 | reclamation financial guarantees to qualified operators to |
28 | insure reclamation of suitable surface mining activities |
29 | permitted under this act. A land reclamation financial guarantee |
30 | may be used by an operator to satisfy the bonding obligation |
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1 | required by section 4(d). |
2 | (b) (1) The department shall assess and collect premiums |
3 | for land reclamation financial guarantees from qualified |
4 | operators who choose to obtain such guarantees. The amount of |
5 | the premium, to be determined by the department and established |
6 | by regulation, shall be sufficient to assure the financial |
7 | stability of the land reclamation financial guarantee program |
8 | and to cover the department's costs to administer the program. |
9 | (2) A special account is established in the Surface Mining |
10 | Conservation and Reclamation Fund to be known as the Land |
11 | Reclamation Financial Guarantee Account. The account shall be |
12 | used to support land reclamation financial guarantees. Premium |
13 | payments shall be deposited into the account and to pay the cost |
14 | of reclamation in the event of operator forfeiture. |
15 | (3) (i) Except as noted in this section, the department |
16 | shall use all the funds previously appropriated and collected |
17 | for the sum-certain financial guarantees authorized pursuant to |
18 | section 213 of the act of June 22, 2001 (P.L.979, No.6A), known |
19 | as the "General Appropriation Act of 2001," as principal funds |
20 | for the land reclamation financial guarantee program established |
21 | by this section. |
22 | (ii) Any existing sum-certain financial guarantee previously |
23 | issued by the department shall be converted into a land |
24 | reclamation financial guarantee established by this section and |
25 | the funds in the Land Reclamation Financial Guarantee Account |
26 | shall be used to cover obligations for all existing sum-certain |
27 | financial guarantees previously issued by the department. |
28 | (4) The department may transfer up to five hundred thousand |
29 | dollars ($500,000) of the funds appropriated for the sum-certain |
30 | financial guarantees authorized pursuant to section 213 of the |
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1 | "General Appropriation Act of 2001," into the Remining Financial |
2 | Assurance Fund for use in supporting remining financial |
3 | guarantees issued by the department pursuant to section 4.12. |
4 | (5) The department may transfer interest earned on the funds |
5 | in the Land Reclamation Financial Guarantee Account into the |
6 | Reclamation Fee O&M Trust Account established pursuant to 25 Pa. |
7 | Code §§ 86.17 (relating to permit and reclamation fees) and |
8 | 86.187 (relating to use of money) to be used to supplement the |
9 | funding of the Reclamation Fee O&M Trust Account. |
10 | (6) Consistent with the requirement in this section to |
11 | assure the financial stability of the land reclamation financial |
12 | guarantee program, premiums collected and deposited in the Land |
13 | Reclamation Financial Guarantee Account may be transferred by |
14 | the department into the Reclamation Fee O&M Trust Account |
15 | established pursuant to 25 Pa. Code §§ 86.17 and 86.18 to be |
16 | used to supplement the funding of the Reclamation Fee O&M Trust |
17 | Account. |
18 | (7) For a 25-year period beginning in 2011, up to two |
19 | million dollars ($2,000,000) annually collected from the Gross |
20 | Receipts Tax on sales of electric energy in Pennsylvania |
21 | authorized by Article XI of the act of March 4, 1971 (P.L.6, |
22 | No.2), known as the "Tax Reform Code of 1971," may be |
23 | transferred by the department to the Reclamation Fee O&M Trust |
24 | Account established pursuant to 25 Pa. Code §§ 86.17 and 86.187 |
25 | to be used to supplement the funding of the Reclamation Fee O&M |
26 | Trust Account. |
27 | (c) When determining eligibility for a land reclamation |
28 | financial guarantee, the department shall consider both site and |
29 | operator eligibility, including factors such as: |
30 | (1) The environmental and safety hazards of the site for |
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1 | which a guarantee is proposed. |
2 | (2) The availability of coal reserves at the site. |
3 | (3) The operator's long-term financial stability. |
4 | (4) The operator's prior denial of coverage, if any, by |
5 | surety bond companies. |
6 | (5) The operator's length of time in business and compliance |
7 | history. |
8 | (6) Any other factor the department considers indicative of |
9 | an operator's ability to complete reclamation and pay required |
10 | premiums under the program. |
11 | (d) (1) The department shall determine the total amount of |
12 | financial guarantees that can be supported by the Land |
13 | Reclamation Financial Guarantee Account based on loss reserves |
14 | established by the application of the historical rate of mine |
15 | operator bond forfeitures, plus a reasonable margin of safety to |
16 | protect the account from the risk of forfeiture. |
17 | (2) The department shall establish, by regulation, |
18 | underwriting methods adequate to insure the account against the |
19 | risk of forfeiture of the guarantees. |
20 | (e) (1) The land reclamation financial guarantee program |
21 | established by this section may be discontinued immediately upon |
22 | publication of notice in the Pennsylvania Bulletin if twenty- |
23 | five per cent or greater of the outstanding bond obligation for |
24 | the land reclamation financial guarantees program is subject to |
25 | forfeiture. |
26 | (2) The Land Reclamation Financial Guarantee Account shall |
27 | be the sole source of funds underwriting the land reclamation |
28 | financial guarantees program and the Commonwealth shall not be |
29 | obligated to expend any funds beyond the amount in the Land |
30 | Reclamation Financial Guarantee Account. |
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1 | (f) The Environmental Quality Board shall promulgate |
2 | regulations to implement the land reclamation financial |
3 | guarantee program and the provisions and requirements of this |
4 | section. |
5 | Section 3. This act shall take effect in 60 days. |
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