Rule2024-18260
Pennsylvania Abandoned Mine Land Reclamation 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
August 16, 2024
Effective
September 16, 2024
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Pennsylvania Abandoned Mine Land Reclamation Plan (Pennsylvania Plan or Plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposed to modify its Plan by adding Reclamation Plan Amendment No. 3 to allow the Pennsylvania Department of Environmental Protection (PADEP) to administer a State Emergency Abandoned Mine Land Reclamation Program (Program). The amendment to the Pennsylvania Plan covers coordination of emergency reclamation work between Pennsylvania and OSMRE as well as procedures for implementing the National Environmental Policy Act and other Pennsylvania procedures.
Full Text
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66563-66567]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18260]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[SATS No. PA-165-FOR; Docket ID: OSM-2016-0013; S1D1S SS08011000
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]
Pennsylvania Abandoned Mine Land Reclamation Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the Pennsylvania Abandoned Mine
[[Page 66564]]
Land Reclamation Plan (Pennsylvania Plan or Plan) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
Pennsylvania proposed to modify its Plan by adding Reclamation Plan
Amendment No. 3 to allow the Pennsylvania Department of Environmental
Protection (PADEP) to administer a State Emergency Abandoned Mine Land
Reclamation Program (Program). The amendment to the Pennsylvania Plan
covers coordination of emergency reclamation work between Pennsylvania
and OSMRE as well as procedures for implementing the National
Environmental Policy Act and other Pennsylvania procedures.
DATES: This rule is effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting, Chief,
Pittsburgh Field Office, Office of Surface Mining Reclamation and
Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: (412)
937-2827, Email: <a href="/cdn-cgi/l/email-protection#563439213338251619051b041378313920"><span class="__cf_email__" data-cfemail="42202d35272c31020d110f10076c252d34">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Plan
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Pennsylvania Plan
The Abandoned Mine Land (AML) Reclamation Program was established
by title IV of SMCRA (30 U.S.C. 1231-1245) in response to concerns over
threats to the health and safety of the public and environmental damage
caused by coal mining activities conducted before the enactment of the
Act. The program is funded primarily by a reclamation fee collected on
each ton of coal that is produced. The money collected is used to
finance the reclamation of abandoned coal mines and other authorized
activities. Section 405 of the Act allows States and Tribes to assume
exclusive responsibility for reclamation activity within the State or
on Indian lands if they develop and submit to the Secretary of the
Interior (Secretary) for approval a program (often referred to as a
plan) for the reclamation of abandoned coal mines within their
jurisdiction.
On July 31, 1982, the Secretary approved the Pennsylvania Plan. You
can find background information on the Plan, including the Secretary's
findings, the disposition of comments, and the approval of the Plan in
the July 30, 1982, Federal Register (47 FR 33081). You can find later
actions concerning the Pennsylvania Plan and amendments to the Plan at
30 CFR 938.25.
II. Submission of the Amendment
By letter dated November 22, 2016 (Administrative Record No. PA
898.00), Pennsylvania sent us an amendment to its Plan under SMCRA at
its own initiative. Within the proposed amendment, Pennsylvania
requested to modify its Plan to allow PADEP to administer an Emergency
AML Reclamation Program under title IV of SMCRA (30 U.S.C. 1231-1245).
We announced receipt of the proposed amendment in the May 16, 2018,
Federal Register (83 FR 22607). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. We did not receive any
public comments and did not hold a public hearing or meeting because
none was requested. The public comment period ended on June 11, 2018.
III. OSMRE's Findings
We have made the following findings concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are
approving the amendment as described below. Any revisions that are not
specifically discussed below concerning non-substantive wording or
editorial changes can be found in the full text of the program
amendment available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
The proposed amendment consists of new Part G, The Pennsylvania
Emergency Response Reclamation Program, to be added to the Pennsylvania
Plan.
Section 410 of SMCRA (30 U.S.C. 1240) authorizes the Secretary to
use funds under the AML Reclamation Program to abate or control
emergency situations in which adverse effects of past coal mining pose
an immediate danger to public health, safety, or general welfare. On
September 29, 1982, OSMRE proposed delegating States and Tribes the
authority to undertake emergency reclamation projects on behalf of the
Secretary. States and Tribes were invited to amend their AML
Reclamation Plans and demonstrate that they: (1) have the statutory
authority to undertake emergencies; (2) the technical capability to
design and supervise the emergency work; (3) the administrative
mechanisms to quickly respond to emergencies either directly or through
contractors; (4) have the staff qualified to make the findings of fact
described in section 410 that emergency projects to be funded meet the
definition of ``emergency'' under 30 CFR 700.5; and (5) that the scope
of the work undertaken to reduce the emergency will be established by
qualified staff, will not exceed the activities necessary to stabilize
the life-threatening situation, and should allow remaining reclamation
work to be undertaken later as a lower priority project. See 47 FR
42729 (Sept. 29, 1982). On May 28, 2010, OSMRE notified the States with
approved AML Reclamation Plans that due to Federal budgetary
constraints, as of Fiscal Year 2011, States would assume the
responsibility for funding of the AML emergency programs from their
title IV AML grants.
1. Statutory Authority
Part G of the Pennsylvania Plan includes a copy of the letter dated
November 1, 1978, that Pennsylvania included in its original Plan
submission, wherein the Governor of Pennsylvania designated the
Pennsylvania Department of Environmental Resources (PADER) as the State
agency responsible for the AML Program in Pennsylvania. According to
additional information provided in Part G, on July 1, 1995, DER was
split into the Department of Conservation and Natural Resources and
PADEP, the latter of which administers Pennsylvania's Plan. The
Pennsylvania Plan also includes: (1) the 1978 legal opinion of the
Pennsylvania Attorney General that PADER (now PADEP) is authorized by
Pennsylvania law to administer the Plan; and (2) a 2016 memorandum from
PADEP's Office of Chief Counsel specifying PADEP's statutory authority
to administer an Emergency AML Reclamation Program as part of its Plan.
OSMRE Findings: In addition to the general police power granted to
PADEP to conduct reclamation work under the Clean Streams Law (35 P.S.
691.1 et seq.) and the Administrative Code of 1929 (71 P.S. 510-15),
section 16 of the Land and Water Conservation and Reclamation Act (32
P.S. 5116) and the Mine Fire and Subsidence Remedial Project
Indemnification Law (52 P.S. 30.201-30.206) provide for the right of
entry on any land where an emergency exists, and any other land to have
access to the land where the emergency exists, with requirements to
attempt to notify appropriate landowners and the option, at the
agency's discretion, to recoup costs from the improved value of the
land. Based on our review of Pennsylvania's relevant statutory
provisions, and the inclusion of the 1978 legal opinion and the 2016
memorandum, we have determined that Pennsylvania has the statutory
authority to undertake emergencies in compliance
[[Page 66565]]
with SMCRA and all other applicable State and Federal laws and
regulations.
2. Technical Capability
On October 1, 2010, OSMRE ceased implementing the Emergency AML
Reclamation Program in Pennsylvania and transferred emergency AML
reclamation responsibilities to PADEP. Pennsylvania subsequently
created an Accelerated Response Program (ARP) in 2010, which was
administered by the PADEP's Bureau of Abandoned Mine Reclamation
(BAMR), to address AML emergencies that have occurred throughout
Pennsylvania's eligible coalfields.
As of the end of evaluation year 2022, Pennsylvania has reclaimed a
total of 1,574,786 feet of dangerous highwalls, 2,016 acres of
dangerous spoil piles and embankments, 47 dangerous impoundments, 153
hazardous water bodies, 1,601 vertical openings, and 771 miles of
sediment-clogged streams. In its submission, Pennsylvania states that
these are the same types of abandoned mine land features that the State
will likely continue to encounter in emergency reclamation projects,
and the technical capabilities used for emergency reclamation projects
are generally the same as those used for normal, high priority
reclamation projects, but with a potentially accelerated project
schedule. In addition, Pennsylvania indicated that current staffing
levels should be sufficient for the implementation of the emergency
program, but PADEP may adjust the personnel structure as needed to
accommodate the program in the future.
Pennsylvania states that BAMR maintains two field offices: one in
eastern Pennsylvania (Anthracite Region) in Wilkes-Barre and one in
western Pennsylvania (Bituminous Region) in Ebensburg, both of which
have the capability to address emergency AML problems with both in-
house staff and outside contractors. Pennsylvania indicates that both
field offices maintain in-house construction crews with significant
equipment available to respond to and address many small AML
emergencies such as pothole (or cavehole) subsidences and mine drainage
breakouts. Pennsylvania provides that emergency project development,
design, realty, construction inspection, and administration are
performed by BAMR staff or outside consultants. Pennsylvania indicates
that approximately eighty percent of emergency projects have been
constructed by PADEP's in-house crews between 2010 and 2020. In
addition, Pennsylvania states that for larger AML emergencies, such as
subsidence events causing structural damage to homes, businesses, and
roads; mine fires; coal refuse fires; landslides; or other large-scale
or complex AML problems, projects are completed by outside contractors
awarded contracts using Pennsylvania's emergency contracting
procedures.
OSMRE Findings: We have found that Pennsylvania has run ARP since
2010 in a cost efficient and professional manner. For example, having
the in-house construction crews affords Pennsylvania a major time and
cost saving advantage. We have found the in-house constructed projects
require minimal design or construction management resources because the
construction staff is proficient and experienced, and requires minimal,
if any, construction inspection or oversight.
In addition, throughout the years, PADEP, through its partnership
with OSMRE, has assembled the necessary funding, staff resources,
expertise, and implementation measures to effectively address and
mitigate suddenly occurring, dangerous abandoned mine land problems.
OSMRE has recognized 18 Pennsylvania projects since 1993 with regional
and national awards for going beyond standard reclamation requirements
to achieve superior results in returning a site to productive use after
completion of mining.
Based on Pennsylvania's demonstrated historical success in
executing their Plan, the proficiency of ARP since 2010, and the
description of its technical staff and processes described in section
III of its submission, we have determined that Pennsylvania has the
technical capability to design and supervise emergency work.
3. Administrative Mechanisms
Pennsylvania explains in its submission that the organizational and
management structure to be used for the proposed emergency program will
be similar to that used for ARP. Pennsylvania states that key elements
of the State's proposed program that provide essential flexibility to
address emergency conditions include:
<bullet> access to accelerated contracting procedures provided
within Pennsylvania's Procurement Code;
<bullet> use of multiple staff with the necessary technical skills
working in parallel to advance reclamation quickly; and
<bullet> supplementary technical, legal, contracting, and
administrative services from respective sections of PADEP as needed.
OSMRE Findings: PADEP has been operating ARP since OSMRE ceased
implementing the Emergency AML Reclamation Program in 2010 in
Pennsylvania. We find that Pennsylvania has run ARP in a cost efficient
and professional manner. Many of the administrative processes required
to implement the proposed emergency program are the same as those
already in place for ARP and the Pennsylvania Plan, which has run
successfully since approval in 1982. Based on Pennsylvania's
description of its administrative and managerial structure in section
IV of its submission, we have determined that Pennsylvania has the
administrative mechanisms in place to manage and implement an emergency
program.
4. Finding of Fact
In its submission, Pennsylvania provides that it will perform the
investigations and eligibility findings for the proposed emergency
projects under title IV of SMCRA. Pennsylvania indicates that it will
then submit this information to the OSMRE official with delegated
authority to make the requisite Finding of Fact and emergency
declarations as required under section 410 of SMCRA. Moreover,
Pennsylvania states that PADEP will follow the approved procedures
contained in the OSMRE Federal Assistance Manual (FAM) chapter 4-120,
which includes the Finding of Fact requirements.
OSMRE Findings: Given Pennsylvania's description of how PADEP will
coordinate with OSMRE in establishing the Finding of Fact and emergency
declaration, including the appropriate OSMRE official finding whether
the problem meets the definition of ``emergency'' under 30 CFR 700.5,
we have determined that Pennsylvania has the necessary procedures in
place to make a Finding of Fact determination consistent with section
410 of SMCRA.
5. Scope of Work
In its submission, Pennsylvania indicates that it will coordinate
its emergency reclamation projects with OSMRE, including following the
procedures found in FAM chapter 4-120. FAM 4-120 provides procedures
for OSMRE to define the scope of work necessary to abate the emergency.
In addition, FAM 4-120 provides information on how the State must
determine the extent and scope of non-emergency work.
OSMRE Findings: Based on Pennsylvania's description of how it
intends to coordinate with OSMRE on its emergency projects consistent
with
[[Page 66566]]
the FAM, we have determined that Pennsylvania has sufficient
procedures, consistent with OSMRE guidelines, in place to ensure the
scope of work for emergency projects will be established by qualified
staff, is limited to that necessary to eliminate the life threatening
situation, and will allow remaining reclamation work to be undertaken
later as a lower priority project.
In accordance with section 405 of SMCRA and 30 CFR 884.14,
Pennsylvania has submitted an amendment to its Plan, and we have
determined that:
(1) The public has been given adequate notice and opportunity to
comment, and the record does not reflect major unresolved
controversies.
(2) Views of other Federal agencies have been solicited and
considered.
(3) The State has the legal authority, policies, and administrative
structure necessary to implement the amendment.
(4) The proposed plan amendment meets all requirements of the
Federal AML Reclamation program regulations at 30 CFR chapter VII,
subchapter R.
(5) The State has an approved State Regulatory Program.
(6) The amendment is in compliance with all applicable State and
Federal laws and regulations.
Therefore, we find that the proposed Pennsylvania plan amendment
allowing the State to assume responsibility for an Emergency AML
Reclamation Program on behalf of OSMRE is in compliance with SMCRA and
meets the requirements of Federal regulations. We are approving
Pennsylvania's assumption of the Program.
IV. Summary and Disposition of Comments
Public Comments
In the May 16, 2018, Federal Register notice announcing our receipt
of this amendment, OSMRE asked for public comments (Administrative
Record No. PA-898.08). No requests for public meetings or hearings were
received. OSMRE did not receive any comments.
Federal Agency Comments
On November 30, 2016, under 30 CFR 884.14(a)(2) and 884.15(a),
OSMRE requested comments on the amendment from various Federal agencies
with an actual or potential interest in the Pennsylvania program
(Administrative Record No. PA 898.01). OSMRE did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
On November 30, 2016, under 30 CFR 884.14(a)(6), OSMRE requested
comments from the EPA on the amendment (Administrative Record No. PA
898.01). The EPA responded with a letter dated January 6, 2017
(Administrative Record PA 898.03) that it has reviewed the proposed
amendment and would not be providing comment.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 884.14(a)(6), OSMRE is required to request comments
from the SHPO and ACHP on amendments that may have an effect on
historic properties. On November 30, 2016, OSMRE requested comments on
the Pennsylvania amendment (Administrative Record No. 898.01). OSMRE
did not receive any comments.
V. OSMRE's Decision
Based on the above findings, OSMRE is approving the Pennsylvania
amendment sent on November 22, 2016 (Administrative Record No. PA
898.00).
To implement this decision, we are amending the Federal regulations
at 30 CFR part 938 that codify decisions concerning the Pennsylvania
program. In accordance with the Administrative Procedure Act, this rule
will take effect 30 days after the date of publication.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in private
property being taken for government use without just compensation under
the law. Therefore, a takings implication assessment is not required.
This determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing
Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
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 (OMB Memo M-94-
3), the approval of State program and/or plan amendments is exempted
from OMB review under Executive Order 12866, as amended by Executive
Order 14094. Executive Order 13563, which reaffirms and supplements
Executive Order 12866, retains this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive order to the quality of this Federal Register document
and to changes to the Federal regulations. The review under this
Executive order did not extend to the language of the plan amendment
that Pennsylvania drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Pennsylvania, through its approved
reclamation program, implements and administers SMCRA and its
implementing regulations at the State level. This rule approves an
amendment to the Pennsylvania Plan submitted and drafted by the State
and, thus, is consistent with the direction to provide maximum
administrative discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175, and have determined that it has no substantial
direct effects on the distribution of power and responsibilities
between the Federal government and Tribes. The
[[Page 66567]]
basis for this determination is that our decision is on the
Pennsylvania program and plan that does not include Indian lands, as
defined by SMCRA, or regulation of activities on Indian lands. Indian
lands are regulated independently under the applicable, approved
Federal program. The Department's consultation policy also acknowledges
that our rules may have Tribal implications where the State proposing
the amendment encompasses ancestral lands in areas with mineable coal.
We are currently working to identify and engage appropriate Tribal
stakeholders to devise a constructive approach for consulting on these
amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. We are not required to
provide a detailed statement under the National Environmental Policy
Act of 1969 because this rule qualifies for a categorical exclusion
under the U.S. Department of the Interior Departmental Manual, part
516, section 13.5(B)(29).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based upon corresponding Federal regulations for which
an economic analysis was prepared and certification made that such
regulations would not have a significant economic effect upon a
substantial number of small entities. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions for the corresponding
Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 938 is amended
as follows:
PART 938--PENNSYLVANIA
0
1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.Inserting required closing tag
for E.
0
2. In Sec. 938.25, amend the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 938.25 Approval of Pennsylvania abandoned mine land reclamation
plan amendments.
* * * * *
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Date of final
Original amendment submission date publication Citation/description
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* * * * * * *
November 22. 2016............................. 8/16/2024 Part G--The Pennsylvania Emergency Response
Reclamation Program.
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[FR Doc. 2024-18260 Filed 8-15-24; 8:45 am]
BILLING CODE 4310-05-P
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