Proposed Rule2023-10819
Pennsylvania Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 23, 2023
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Pennsylvania regulatory program (hereinafter, the Pennsylvania program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Through this submission, Pennsylvania addresses regulations regarding water replacement provisions that were disapproved by us in 2005. This document gives the times and locations that the Pennsylvania program and this proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 99 (Tuesday, May 23, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Proposed Rules]
[Pages 33021-33025]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10819]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[SATS No. PA-173-FOR; Docket ID: OSM-2021-0005; S1D1S SS08011000
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are announcing receipt of a proposed amendment to the
Pennsylvania regulatory program (hereinafter, the Pennsylvania program)
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act). Through this submission, Pennsylvania addresses regulations
regarding water replacement provisions that were disapproved by us in
2005. This document gives the times and locations that the Pennsylvania
program and this proposed amendment to that program are available for
your inspection, the comment period during
[[Page 33022]]
which you may submit written comments on the amendment, and the
procedures that we will follow for the public hearing, if one is
requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
Eastern Daylight Time (EDT), June 22, 2023. If requested, we may hold a
public hearing or meeting on the amendment on June 20, 2023. We will
accept requests to speak at a hearing until 4 p.m., EDT on June 7,
2023.
ADDRESSES: You may submit comments, identified by SATS No. PA-173-FOR,
by any of the following methods:
<bullet> Mail/Hand Delivery: Ben Owens, Acting Field Office
Director, Pittsburgh Field Office, 3 Parkway Center South, 2nd Floor,
Pittsburgh, PA, 15220.
<bullet> Fax: (412) 937-2827.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#573538203239241738243a253279303821"><span class="__cf_email__" data-cfemail="d8bab7afbdb6ab98b7abb5aabdf6bfb7ae">[email protected]</span></a>.
<bullet> Federal eRulemaking Portal: The amendment is assigned the
Docket ID: OSM-2021-0005, If you would like to submit comments go to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for submitting
comments.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to review copies of the
Pennsylvania program, this amendment, a listing of any scheduled public
hearings or meetings, and all written comments received in response to
this document, you must go to the address listed below during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the amendment by contacting OSMRE's Pittsburgh
Field Office or the full text of the program amendment is available for
you to read at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Ben Owens, Acting Field Office Director, Pittsburgh Field Office,
Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center
Drive South, 2nd Floor, Pittsburgh, PA 15220, Telephone: (412) 937-
2827, Email: <a href="/cdn-cgi/l/email-protection#5e3c31293b302d1e312d332c3b70393128"><span class="__cf_email__" data-cfemail="8ceee3fbe9e2ffcce3ffe1fee9a2ebe3fa">[email protected]</span></a>
In addition, you may review a copy of the amendment during regular
business hours at the following location:
Nathan A. Houtz, P.G., Director, Bureau of Mining Programs,
Pennsylvania Department of Environmental Protection, Rachel Carson
State Office Building, P.O. Box 8461, Harrisburg, PA 17101-8461
FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Field Office
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation
and Enforcement, 3 Parkway Center Drive South, 2nd Floor, Pittsburgh,
PA 15220 Telephone: (412) 937-2827. Email: <a href="/cdn-cgi/l/email-protection#a4c6cbd3c1cad7e4cbd7c9d6c18ac3cbd2"><span class="__cf_email__" data-cfemail="a2c0cdd5c7ccd1e2cdd1cfd0c78cc5cdd4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Statutory Orders and Executive Reviews
I. Background on the Pennsylvania Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its approved State program includes, among other things, State laws and
regulations that govern surface coal mining and reclamation operations
in accordance with the Act and consistent with the Federal regulations.
See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the
Secretary of the Interior conditionally approved the Pennsylvania
program on July 30, 1982. You can find background information on the
Pennsylvania program, including the Secretary's findings, the
disposition of comments, and conditions of approval of the Pennsylvania
program in the July 30, 1982 Federal Register (47 FR 33050). You can
also find later actions concerning the Pennsylvania program and program
amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.
II. Description of the Proposed Amendment
By letter dated August 5, 2021, (Administrative Record No. PA
907.00), Pennsylvania sent us an amendment to its program under SMCRA
(30 U.S.C. 1201 et seq.). This submission addresses several previously
not approved items relating to inconsistencies between Pennsylvania's
Surface Coal Mining Program (Program) and Federal regulatory
requirements relating to water supply replacement as specified at 30
CFR 938.12(c). On May 13, 2005, we published a final rule notice that
disapproved five provisions submitted by Pennsylvania pertaining to
their water replacement provisions (70 FR 25472). This submission
proposes to address those disapprovals. Pennsylvania has submitted
several proposed revisions to their water replacement provisions
intended to ensure that their water replacement requirements are
consistent with SMCRA.
Pennsylvania determined that 25 Pa. Code sections 87. 119 and
88.107 require extensive reorganization for clarity. Therefore, for
ease of reference, Pennsylvania has reserved these section numbers in
their entirety and adopted sections 87.119a and 88.107a respectively.
Several minor editorial changes were made throughout. Substantive
changes are summarized as follows:
1. Section 4.2(f)(4) of PA SMCRA was not approved because it
allowed for final bond release when there is an outstanding
Pennsylvania Department of Environmental Protection (Department) water
supply replacement order. See 30 CFR 938.12(c)(1). Sections 87.119(i)
and 88.107(i) (relating to hydrologic balance: water rights and
replacement) were not approved for the same reason of allowing for
final bond release when there is an outstanding Department order. See
30 CFR 938.12(c)(7). The program amendment proposes to eliminate the
ability to release bond when a Department order issued under the water
supply replacement section is under appeal.
2. 25 Pa. Code Sections 87.1 and 88.1 (Relating to definitions) and
25 Pa. Code Sections 87.119(a)(1)(v) and 88.107(a)(1)(v) (requiring
that a restored or replaced water supply shall not result in more than
a ``de minimis cost increase'' to operate and maintain) were also not
approved in 2005. This is because it established a less stringent
standard than is required by the Federal regulations. 30 CFR
938.12(c)(4) and (5) require that no additional costs be passed along
to the water supply owner. This amendment proposes to delete the term
``de minimis cost increase'' and references thereto making it just as
effective as the regulations. See 30 CFR 938.12(c)(4) and (5).
3. 25 Pa. Code Sections 87.119(a) and 88.107(a) were not approved
in 2005 because they did not include a requirement to provide temporary
replacement water supply. Furthermore, they allowed for the replacement
supply to be of a lesser quantity and quality than the pre-mining water
supply. See 30 CFR 938.12(c)(5). The proposed revisions amend the
Pennsylvania Surface Mining Regulations to render them consistent,
where possible, with existing Underground Coal Mining Regulations,
specifically 25 Pa. Code Chapter 89.145, which sets forth program
provisions that define circumstances where a temporary replacement
water supply is required and direct that the supplied temporary or
permanent replacement water supply is not of a lower quantity or
quality.
[[Page 33023]]
4. 25 Pa. Code Section 87.119(a)(3) and 88.107(a)(3) were not
approved because they allowed persons with an ownership interest in the
water supply to waive the requirements to restore or replace the water
supply. The program amendment proposes that the Department may waive
the restoration or replacement water supply requirement, if is
determined by the Department that the affected water supply is to be
abandoned. All persons who possess an ownership interest in the water
supply would be required to submit a notarized written statement of
knowingly and willingly agreeing to said abandonment.
5. Sections 87.119(g) and 88.107(g) were not approved because they
allowed for operators to recover costs in the event that an operator
successfully appeals a Department order to restore or replace water
supply. OSMRE did not approve these regulations because section
4.2(f)(5) of PASMCRA which provided statutory authority for the
regulations was repealed in 2000. As a result, there was no statutory
authority for these regulations. The program amendment proposes to
allow an operator or mine owner to pursue recovery costs if they
prevail in an appeal of a Department order to replace a water supply in
accordance with 27 Pa.C.S. section 7708.
A. Proposed Revisions in Response To Disapprovals at 938.12(c)
In its August 5, 2021 submission (Administrative Record No. PA
907.00), the Department explained that the changes it was proposing to
87.119 and 88.107 required extensive reorganization, and that, to
facilitate this, the sections were replaced by the new sections 87.119a
and 88.107a. Additional detail on these and other changes proposed in
the Department's amendment are discussed below.
a. Definitions
i. ``De minimis cost increase'' is proposed to be deleted as
required by OSMRE.
ii. ``Alternative water supply information'' proposes revision to
sections 87.47 and 88.27 to specify that any affected ``water supply''
be identified and include water supplies replacement cost calculations
be included in the permit application. Additionally, the Department
will provide notice to water supply owners for said supplies.
iii. ``Operation and maintenance costs'' is proposed to be included
to ensure consistency with State law.
iv. ``Water supply'' is proposed revised to specify that natural
soil moisture is not a water supply.
v. ``Water supply owner'' is proposed to be included and that the
term be used throughout each provision to avoid repetition of using
both ``landowner'' and ``water supply company'' terms.
vi. ``Water supply surveys'' is proposed relocated from definitions
to the specific section in each chapter.
b. Sections 87.119a and 88.107a propose language setting out
requirements for the operator or mine owner, who affects a water supply
to any demonstrable extent by contamination, pollution, diminution or
interruption, to promptly provide temporary replacement water supplies
as defined at 30 CFR 701.5.
c. Sections 87.119a(a) and 88.107a(a) (Water supply surveys),
proposes language expanding the detailed requirements for a water
supply survey.
d. Sections 87.119a(a)(1) and 88.107a(a)(1) propose expanding
existing requirements for the water supply survey, drawing provisions
from 25 Pa. Code 89.145a, which govern water supply surveys for
underground coal mining. The resulting proposed regulation would
address the following requirements:
i. location and type of the water supply;
ii. uses of the water supply, both existing and reasonably
foreseeable future uses;
iii. the chemical and physical characteristics of the water;
iv. historic and recent quantity measurements and other hydrologic
data;
v. physical description of the water supply;
vi. sufficient sampling and other measurements to document the
seasonal variation in hydrologic conditions of the water supply.
e. Sections 87.119a(a)(2) and 88.107a(a)(2) propose the
requirements for operators or mine owners to submit the water supply
survey to the Department, to the water supply owner, and the water
supply user, prior to permit issuance.
f. Sections 87.119a(a)(3) and 88.107a(a)(3) propose the
requirements for operators or mine owners to complete a water supply
survey prior to the time a water supply is susceptible to mining-
related effects and that the survey shall be included as part of the
application for a surface mining permit.
g. Sections 87.119a(a)(4) and 88.107a(a)(4) regarding rejection of
pre-mining or post-mining surveys by the water supply owner, reorganize
the requirements with regard to ``defenses to presumption of
liability'' and ``notification to the Department.''
h. Sections 87.119a(b) and 88.107a(b) (Water supply replacement
obligation), propose language amending, through enhanced specificity,
the existing requirement that an operator or mine owner to restore or
replace an affected water supply, no matter how minimal, with a
permanent alternative source to meet reasonably foreseeable uses of the
existing water supply and that for any water supply that will, with a
reasonable degree of certainty establish by supporting evidence, be
affected by contamination, pollution, diminution or interruption by the
proposed mining, the operator or mine owner shall provide a replacement
supply prior to commencing the activity. In addition, it proposes to
require that the operator or mine owner provide to the Department, in
writing, a description of the locations of a restored or replaced water
supply.
i. Sections 87.119a(c) and 88.107a(c) (Temporary water supplies)
propose requirements that, if the Department has determined in a
preliminary review that the water loss is related to mining activity, a
temporary water supply, adequate to meet pre-mining needs, must be
provided within 24 hours if no alternate source of water is readily
available to the water supply owner or user.
j. Sections 87.119a(d) and 88.107a(d) (Immediate replacement of
water supply by the Department) propose language addressing the
immediate replacement of a water supply and the Department's authority
to recover costs from the responsible operator or mine owner, as
relocated verbatim from sections 87.119(e) and 88.107(f).
k. Sections 87.119a(e) and 88.107a(e) (Reimbursement), propose new
requirements addressing reimbursement of a water supply owner or user
based on a negotiation in circumstances where a water supply owner or
user has replaced a water supply that an operator or mine owner is
responsible for replacing. This requirement includes a process should
disputes arise and the determination by the Department of the fair cost
reimbursement. This requirement also imposes a 5-year reimbursement
claim period until final bond release.
l. Sections 87.119a(f) and 88.107a(f) (Adequacy of permanently
restored or replaced water supply) propose language expanding the
concepts of ``adequate quality'' and ``adequate quantity'' in
permanently restored or replaced water supplies and eliminates
references to the concept of de minimis costs of operation and
maintenance.
[[Page 33024]]
m. Sections 87.119a(g) and 88.107a(g) (Increased operation and
maintenance costs) propose language describing the procedure for
determining annual operation and maintenance costs and providing for
these costs so that the restored or replaced water supply is no more
costly to operate and maintain than the original water supply.
n. Sections 87.119a(h) and 88.107a(h) (Special provisions for
operation and maintenance costs) propose language clarifying two
provisions for operation and maintenance costs: when the ownership of
the supply changes; and when there are multiple supplies that have been
replaced with associated increases in costs.
o. Sections 87.119a(i) and 88.107a(i) (Waivers) propose to address
compensation as an alternative to replacement and would provide that
only a water supply owner may waive the operator's or mine owner's
responsibility to replace a water supply, which may occur only when
replacement is not necessary to achieve the approved post-mining land
use.
p. Sections 87.119a(j) and 88.107a(j) (Presumption of liability)
propose to restate provisions in PASMCRA that provide that the operator
or mine owner is presumed liable for water supply pollution and
diminution within 1,000 feet of areas affected by mining and restate
the five defenses to the presumption of liability that exist in
PASMCRA. This revision does not propose to make any changes to the
statutory defenses but clarifies the criteria for the operator or mine
owner to be excluded from the presumption of responsibility.
q. Sections 87.119a(k) and 88.107a(k) (Operator cost recovery)
propose replacement of language disapproved in 2005 due to the repeal
of section 4.2(f)(5) of PASMCRA. They address an operator's or mine
owner's ability to recover costs by referencing the current statute
related to cost for mining proceedings at 27 Pa.C.S. section 7708.
r. Sections 87.119a(l) and 88.107a(l) (Other remedies) propose
language clarifying that nothing in the regulations would prevent a
water supply owner or user from pursuing any other remedy provided in
law or equity when claiming pollution or diminution of a water supply.
The language also clarifies that nothing in the regulations prevents an
operator or mine owner from pursuing other legal remedies should they
incur costs in restoring or replacing a supply that experienced
pollution or diminution caused by third parties.
s. Sections 87.119a(m) and 88.107a(m) (Issuance of new permits)
propose the removal of language from previous sections that indicated
that a Department order to restore or replace a water supply would not
affect final bond release.
B. Revisions to Other Sections are Solely for the Purpose of
Establishing Consistency or To Adjust the References Affected by
Renumbering
The full text of the program amendment is available for you to read
at the locations listed above under ADDRESSES or at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Electronic or Written Comments
If you submit written or electronic comments on the proposed rule
during the 30-day comment period, they should be specific, confined to
issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent State or
Federal laws or regulations, technical literature, or other relevant
publications.
We cannot ensure that comments received after the close of the
comment period (see DATES) or sent to an address other than those
listed (see ADDRESSES) will be included in the docket for this
rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EDT on June 7,
2023. If you are disabled and need reasonable accommodations to attend
a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Statutory Orders and Executive Reviews
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of State program amendments is exempted from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Other Laws and Executive Orders Affecting Rulemaking
When a State submits a program amendment to OSMRE for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an
[[Page 33025]]
opportunity for public comment. We conclude our review of the proposed
amendment after the close of the public comment period and determine
whether the amendment should be approved, approved in part, or not
approved. At that time, we will also make the determinations and
certifications required by the various laws and Executive orders
governing the rulemaking process and include them in the final rule.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
[FR Doc. 2023-10819 Filed 5-22-23; 8:45 am]
BILLING CODE 4310-05-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on May 23, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.