Rule2025-14245
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
July 28, 2025
Effective
August 27, 2025
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving in part an amendment to the Pennsylvania regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment addresses regulations regarding water replacement provisions that were disapproved by us in 2005.
Full Text
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<title>Federal Register, Volume 90 Issue 142 (Monday, July 28, 2025)</title>
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[Federal Register Volume 90, Number 142 (Monday, July 28, 2025)]
[Rules and Regulations]
[Pages 35407-35417]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-14245]
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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 256S180110; S2D2S SS08011000 SX064A000 25XS501520]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; partial approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving in part an amendment to the Pennsylvania
regulatory program under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). The amendment addresses regulations
regarding water replacement provisions that were disapproved by us in
2005.
DATES: The effective date is August 27, 2025.
FOR FURTHER INFORMATION CONTACT: Thomas J. Koptchak, Field Office
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation
and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220; Telephone:
(202) 513-7685; Email: <a href="/cdn-cgi/l/email-protection#77031c180703141f161c3718041a051259101801"><span class="__cf_email__" data-cfemail="82f6e9edf2f6e1eae3e9c2edf1eff0e7ace5edf4">[email protected]</span></a>.
[[Page 35408]]
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order 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). On the basis of 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 Federal Register on July 30, 1982 (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. Submission of the 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.). The proposed amendment addresses several
items, previously not approved, relating to inconsistencies between
Pennsylvania's Surface Coal Mining Program and Federal regulatory
requirements relating to water supply replacement as specified at 30
CFR 938.12(c). This submission also proposes to address, among other
issues, five provisions previously submitted by Pennsylvania pertaining
to water replacement which were not approved by final rule on May 13,
2005 (70 FR 25472). In its August 5, 2021 amendment submission letter,
Pennsylvania states that 25 Pa. Code Sections 87.119 and 88.107
required extensive reorganization for clarity. Pennsylvania has
reserved these sections and adopted new sections at 25 Pa. Code 87.119a
and 25 Pa. Code 88.107a. With this submission, Pennsylvania intends to
create water replacement requirements that are consistent with SMCRA
and the Federal regulations.
We announced receipt of the proposed amendment in the Federal
Register on May 23, 2023 (88 FR 33021). 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. No hearing or
meeting was requested and, therefore, neither was held. The public
comment period ended June 22, 2023. We received no comments.
III. OSMRE's Findings
The following are the findings we made concerning the amendment
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.
Any revisions that we do not specifically discuss below concern non-
substantive wording or editorial changes. We are approving the
amendment, in part, and not approving it in part, as described below.
As an initial matter, in its August 5, 2021, submission
(Administrative Record No. PA 907.00), Pennsylvania explained that its
proposed changes to 25 Pa. Code sections 87.119 and 88.107 required
extensive reorganization, and these sections were replaced by the new
Sections 87.119a and 88.107a. The text of 25 Pa. Code 87.119a is
structurally and substantively identical to that of 25 Pa. Code
88.107a. Accordingly, our findings regarding any specific subsection or
provision of 25 Pa. Code 87.119a also apply to its twin at 25 Pa. Code
88.107a.
1. 25 Pa. Code Sections 87.1 and 88.1--Definitions
Pennsylvania has proposed to amend 25 Pa. Code Sections 87.1 and
88.1 to provide definitions for ``operation and maintenance costs'' and
``water supply owner,'' as well as to amend the term ``water supply''
as follows. The term ``operation and maintenance costs'' is defined as
``all costs incurred by the water supply owner or water supply user
associated with utilizing that supply for the purposes served. Examples
of these costs include electricity, chemicals, treatment system
maintenance, public water fees and equipment replacement costs.'' The
definition provided for ``water supply owner'' is a ``landowner or
water supply company.'' The proposed amendment to the definition for
``water supply'' is, ``for the purpose of Sections 87.47 and 87.119a
(relating to alternative water supply information; and hydrologic
balance: water rights and replacement), an existing, designated, or
currently planned source of water, facility, or system for the supply
of water for human consumption or for agricultural, commercial,
industrial or other uses. Natural soil moisture utilized by vegetation
or crops is not a water supply.'' The changes to this definition are
the addition of the last sentence regarding soil moisture, the revision
of the reference to section 87.119 to reflect its replacement at
87.119a, and the addition of a parenthetical description of the
contents of section 87.119a.
25 Pa. Code Sections 87.1, 88.1, and 89.5 previously defined the
term ``de minimis cost increase'' as a cost increase either less than
15% of the annual operating and maintenance costs of the previous water
supply that is restored or replaced, or a cost that is less than $60
per year. We previously did not approve of this term or its use in
conjunction with replacement water supplies to the extent it could
allow any additional cost above the premining cost to be passed to the
water supply user or owner. See 70 FR 25472, 25482-83 (May 13, 2005);
66 FR 67010, 67029 (December 27, 2001). The definition for ``de minimis
cost increase'' has since been deleted from 25 Pa. Code Sections 87.1,
88.1, and 89.5.
OSMRE Finding: The definitions of ``operation and maintenance
costs,'' ``water supply,'' and ``water supply owner'' are not defined
terms in SMCRA or the Federal regulations at 30 CFR part 700. We find
these proposed definitions are not inconsistent with the use of those
terms used with section 4.2(f) of PASMCRA (52 P.S. 1396.4b(f)).
When we previously considered the water supply replacement
requirements for 25 Pa. Code Chapter 89 relating to water supplies
affected by underground mining activities, we determined that the
definition of ``de minimis cost increase'' was not as effective as that
which appears in the Federal regulation at 30 CFR 701.5 (definition of
the term, ``replacement of water supply''). 70 FR 25472, 25482-83 (May
13, 2005); 66 FR 67010, 67029 (December 27, 2001). We found the intent
of the Federal regulation was to ensure that the owner or user of the
water supply was made whole and that no additional costs were passed on
to the water supply owner or user. Accordingly, we previously did not
approve the definition of ``de minimis cost increase'' as it appeared
at 25 Pa. Code 87.1 and 88.1. 70 FR 25472, 25482 (May 13, 2005); 30 CFR
938.12(c)(4). Pennsylvania has now proposed to delete the ``de minimis
cost increase'' provisions from 25 Pa. Code 87.1 and 88.1, and to not
insert any such term as part of the criteria at 25 Pa. Code 87.119a(f)
and 88.107a(f) (which were included with their predecessor sections at
25 Pa. Code 87.119(a)(1)(v) and 88.107(a)(1)(v)). These deletions
resolve
[[Page 35409]]
our prior disapproval and cause the Pennsylvania program to comply with
SMCRA and the Federal regulations at 30 CFR 701.5.
The definitions and deletions proposed above are consistent with
SMCRA and no less stringent than the Federal regulations, and we
approve these changes. Because the deletion of the term ``de minimis
cost increase'' at 25 Pa. Code 87.1 and 88.1 resolves our prior non-
approval codified at 30 CFR 938.12(c)(4), that provision can be removed
and reserved.
2. 25 Pa. Code Sections 87.47 and 88.27--Alternative Water Supply
Information
Pennsylvania has proposed revisions to 25 Pa. Code sections 87.47
and 88.27. These sections state that a permit application ``shall
identify the extent to which the proposed . . . mining activities may
result in contamination, diminution or interruption of an underground
or surface source of water within the proposed permit or adjacent area
for domestic, agricultural, industrial or other legitimate use.''
Pennsylvania has proposed to replace the phrase ``an underground or
surface source of water'' with simply ``any water supply,'' and to
strike the phrase ``for domestic, agricultural, industrial or other
legitimate use.'' In both sections, Pennsylvania has proposed to add
that the description shall include cost calculations for restoration or
replacement of the affected water supply, and that PADEP will notify
the owner of any potentially affected supply. At 25 Pa. Code 87.47,
Pennsylvania has also proposed to change the reference to 25 Pa. Code
87.119 to its renumbered location at section 87.119a.
OSMRE Finding: We find that the foregoing changes require the
permit applicant to provide a more detailed description of alternative
water supply information than required by the Federal regulations at 30
CFR 780.21(e). We find that the definition for ``water supply'' at 25
Pa. Code Sections 87.1 and 88.1, which includes ``an existing,
designated, or currently planned source of water'' is broader than the
sources that must be described at 30 CFR 780.21(e). Furthermore, the
proposed changes require the applicant to provide cost calculations for
restoration or replacement of the affected water supply, which is also
more than is required at 30 CFR 780.21(e). Accordingly, we find that
requirements detailed in 25 Pa. Code sections 87.47 and 88.27 are
consistent with SMCRA Section 507 (30 U.S.C. 1257) and no less
stringent that the alternative water source information required by the
Federal regulations at 30 CFR 780.21(e). Therefore, we approve the
changes.
3. 25 Pa. Code Sections 87.119a(f) and 88.107a(f)--Adequacy of
Permanently Restored or Replaced Water Supply
Pennsylvania has proposed regulations at 25 Pa. Code Sections
87.119a(f) and 88.107a(f) to provide the criteria used by PADEP to deem
a permanently restored or replaced water supply as ``adequate.'' This
list of adequacy criteria is an expanded version of the criteria for
water supply adequacy that formerly appeared at 25 Pa. Code Sections
87.119(a)(1) and 88.107(a)(1). 25 Pa. Code Sections 87.119a(f) and
88.107a(f) provide that a permanently restored or replaced water supply
shall include any well, spring, municipal water supply system or other
supply approved by PADEP which meets certain criteria. The proposed
regulations provide four numbered subsections containing the criteria
for adequacy: ``reliability, maintenance, and control,'' ``quality,''
``quantity,'' and ``water source serviceability.''
The prior version of these ``adequacy'' criteria at 25 Pa. Code
Sections 87.119(a)(1) and 88.107(a)(1) provided that a replacement
water supply could not result in more than a ``de minimis'' cost
increase to the owner or user to operate and maintain. As noted in
Finding 1 above, the proposed regulations at 25 Pa. Code Sections
87.119a(f) and 88.107a(f) have deleted any such requirement.
The proposed regulations at subsection (f)(1), relating to
reliability, maintenance and control, provide: ``as documented in the
premining water supply survey, a restored or replaced water supply, at
a minimum, shall: (i) be as reliable as the previous water supply; (ii)
be as permanent as the previous water supply; (iii) not require
excessive maintenance; (iv) provide the water supply owner and the
water supply user with as much control and accessibility as exercised
over the previous water supply; and, (v) not result in increased cost
of operation and maintenance for the water supply owner or water supply
user, unless the operator or mine owner has provided for payment of the
increased cost as described under subsection (g).
Subsection (f)(2) provides the criteria for a replacement water
supply to be deemed ``adequate'' in quality by PADEP. Subsection
(f)(2)(i) provides that water quality is adequate for a domestic supply
if the restored or replaced water supply meets the PSDWA standards, or
a quality comparable to the premining water supply if that water supply
did not meet these standards. This subsection further provides that
PADEP may require that the quality of the restored or replaced water
supply be equivalent to the premining supply in particular
circumstances where the water supply owner or water supply user has
demonstrated that this standard is necessary for the purposes served by
the current supply. Subsection (f)(2)(ii) provides that water quality
is adequate for non-domestic supplies if it meets the premining quality
established by the water supply survey data or an adequate quality of
water needed for the purposes served by and the reasonably foreseeable
uses of the supply.''
Subsection (f)(3) states that for purposes of this paragraph, the
term ``reasonably foreseeable uses'' includes the reasonable expansion
of use where the premining quantity of the water supply was adequate to
supply the foreseeable uses. Subsection (f)(3) then provides that
either the following subsections (f)(3)(i) or (f)(3)(ii) must be
satisfied for a water supply's quantity to be deemed ``adequate.''
Subsection (f)(3)(i) would deem a water supply adequate in quantity if
it delivers the amount of water necessary to satisfy the purposes
served by the supply as documented in the water supply survey,
including the demands of any reasonably foreseeable uses. This
subsection also provides that PADEP will not accept the use of water
storage systems in conjunction with the replaced or restored supply to
meet quantity requirements, unless the operator or mine owner can
demonstrate the existence of no reasonable alternative. Subsection
(f)(3)(ii) would deem a water supply adequate in quantity if it is
established through a connection to a public water supply system that
is capable of delivering the amount of water necessary to satisfy the
water supply owner's or water supply user's needs and the demands of
any reasonably foreseeable uses.
The provisions at subsections (f)(4), relating to water source
serviceability, require that replacement of a water supply shall
include the installation of all piping, pumping equipment. and
treatment equipment necessary to put the replaced water source into
service.
OSMRE Finding: The previous iterations of these water supply
criteria were located at 25 Pa. Code Sections 87.119(a) and 88.107(a),
which we did not approve because they were less stringent than the
Federal regulations for the following reasons: at subsection (a), to
the extent it allowed the replaced water supply to be of a lesser
quantity and quality than the premining water
[[Page 35410]]
supply; at subsection (a), to the extent it did not provide for
temporary replacement of water supplies; at subsection (a)(1)(v), to
the extent it would pass on ``de minimis'' operating and maintenance
costs of a replacement water supply in excess of the operating and
maintenance costs of the premining water supply to the landowner or
water supply user; at subsection (a)(2), to the extent it did not
require an operator to provide for all increased operating and
maintenance costs of a restored or replaced water supply; and, at
subsection (a)(3), to the extent it would allow a waiver from the
requirements for replacing a water supply outside the requirements of
30 CFR 701.5 regarding the definition of the term ``replacement of
water supply.'' 30 CFR 938.12(c)(5); 70 FR 25472, 25483 (May 13, 2005).
Pennsylvania's proposed regulations address two of the reasons we
did not approve 87.119(a) and 88.107(a). The predecessor of the
``adequacy'' criteria, now located at subsection (f)(1), provided that
a replacement water supply could not result in more than a de minimis
cost increase to the owner or user to operate and maintain. For the
reasons described at Finding 1 above, we did not approve of the use of
``de minimis cost increase'' as it appeared at 25 Pa. Code
87.119(a)(1)(v) and 88.107(a)(1)(v). The deletion of the ``de minimis
cost increase'' provisions from 25 Pa. Code 87.119a(f) and 88.107a(f)
resolves one of the five reasons we did not approve 25 Pa. Code 87.119
and 88.107, as codified at 30 CFR 938.12(c)(5). Another reason we did
not approve of these sections was that they did not require the
provision of a temporary water supply, which has also been remedied as
described at Finding 6 below.
We also did not approve 25 Pa. Code 87.119(a) and 88.107(a) to the
extent that each would allow the replaced water supply to be of lesser
quantity and quality than the premining water supply. The Federal
definition of the term ``replacement of water supply'' at 30 CFR 701.5
states: ``replacement of water supply means, with respect to protected
water supplies contaminated, diminished, or interrupted by coal mining
operations, provision of water supply on both a temporary and permanent
basis equivalent to premining quantity and quality.'' Because the prior
regulations at subsection (a) allowed replacement of a water supply
that was ``adequate'' in water quantity and quality rather than
``equivalent'' to the premining quantity and quality, we found them
less stringent than the Federal regulations and did not approve them.
30 CFR 938.12(c)(5); 70 FR 25472, 25483 (May 13, 2005).
The proposed regulations in subsection (f)(1) provides acceptable
qualitative criteria for a water supply that is based on that of the
premining water supply, and the restored or replaced water supply is
disallowed from requiring the water supply owner or user to pay
increased cost or operation and maintenance. Subsection (f)(4) also
requires that replacement of a water supply shall include the
installation of all piping, pumping equipment and treatment equipment
necessary to put the replaced water source into service. We find that
subsections (f)(1) and (f)(4) comply with 30 CFR 701.5, since they
provide for an equivalent water delivery system that does not result in
increased operating or maintenance costs to the water supply user or
owner.
As described above, the Federal regulations require that a
replacement water supply must provide an equivalent quantity and
quality of water to that of the premining supply. While Pennsylvania's
proposed regulations at 25 Pa. Code Sections 87.119a(f) and 88.107a(f)
provide more detailed qualitative criteria for a replacement water
supply than the former criteria at 25 Pa. Code 87.119(a) and 88.107(a),
the proposed regulations nonetheless continue to allow the replacement
water supply to be of ``adequate'' quantity and quality. Pennsylvania's
proposed regulations at subsection (f)(2) would set the floor for water
quality at the level required by the Pennsylvania Safe Drinking Water
Act (PSDWA) (35 P.S. 721.1-721.17). In a situation where the premining
quality of the water supply was higher than required by PSDWA,
subsection (f)(2) could nonetheless authorize the provision of a water
supply of lower quality than the premining water supply. Proposed
subsection (f)(2)(i) makes this clear by adding in its final sentence
that PADEP ``may require that the quality of the restored or replaced
water supply be equivalent to the premining supply in particular
circumstances where the water supply owner or water supply user has
demonstrated that this standard is necessary for the purposes served by
the current supply.'' Similarly, if the water supply owner or user's
premining water supply provided a greater quantity of water than
necessary for their needs, the Federal standard would require that same
abundance to be restored while Pennsylvania's proposed regulations at
(f)(3) would not.
Accordingly, we do not approve the proposed regulations at 25 Pa.
Code Sections 87.119a(f) and 88.107a(f) to the extent they could permit
a replaced water supply to provide lesser quantity and quality of water
than ``equivalent'' to that of the premining water supply as required
by the Federal regulations. Otherwise, we approve the proposed
regulations.
4. 25 Pa. Code Sections 87.119a(a) and 88.107a(a)--Water Supply Surveys
Pennsylvania has proposed revisions to 25 Pa. Code sections
87.119a(a) and 88.107a(a) which provide similar criteria to the
definition of ``water supply survey'' that previously appeared at 25
Pa. Code sections 87.1 and 88.1.
The proposed sections at 25 Pa. Code 87.119a(a) and 88.107a(a)
require an operator or mine owner who, because of mining activities,
may affect a water supply to any demonstrable extent by contamination,
pollution, diminution, or interruption, must conduct a survey of all
water supplies within the permit area and adjacent areas that may be
affected, except when the water supply owner denies the operator or
mine owner access for the survey. To the extent that it can be
collected without excessive inconvenience to the water supply owner or
water supply user, the information gathered must include: the location
and type of water supply; its existing and reasonably foreseeable uses;
historic and recent quantity measurements and other hydrogeologic data
such as the static water level and yield determination; the physical
description of the water supply, including the depth and diameter of
the well, length of casing, and description of the treatment and
distribution systems; sufficient sampling and other measurements to
document the seasonal variation in hydrologic conditions of the water
supply; and, a broad list of chemical and physical water
characteristics specified in the proposed regulation.
The operator or mine owner conducting the survey must use a
certified laboratory to analyze the samples. In addition, a copy of the
results must be provided to PADEP, the water supply owner, and the
water supply user. A water supply survey must be conducted prior to the
time a water supply is susceptible to mining-related effects, and the
proposed regulations would require that a copy of the survey is part of
the permit application submitted to PADEP. If a mine owner or operator
was denied the access to the site by the water supply owner for the
purpose of conducting the survey, the operator must provide evidence to
PADEP proving that the water supply owner was notified by
[[Page 35411]]
certified mail or personal service, that the operator attempted to
conduct a survey, and that the water supply owner failed to authorize
access prior to the commencement of mining activity.
OSMRE Finding: We previously approved of the prior definition
``water supply survey'' as it appeared at 25 Pa. Code sections 87.1 and
88.1 because the term is undefined in SMCRA and the Federal
regulations, the term is only used in conjunction with an operator's
ability to rebut the presumption of liability of pollution, and the
term's use does not relieve operators of liability for replacement or
restoration of water supplies that were impacted by their mining
operations. See 70 FR 25472, 25482 (May 13, 2005). For the same
reasons, we find that the addition of the water supply survey
provisions detailed in 25 Pa. Code Sections 87.119a(a) and 88.107a(a)
are consistent with SMCRA and no less stringent than the Federal
regulations. Therefore, we approve the changes.
5. 25 Pa. Code Sections 87.119a(b) and 88.107a(b)--Water Supply
Replacement Obligations
Pennsylvania has proposed regulations at 25 Pa. Code 87.119a(b) and
88.107a(b), relating to water supply replacement obligations. The
proposed regulations at 25 Pa. Code 87.119a(b)(1) and 87.107a(b)(1)
provide that ``the operator of any mine or a person engaged in
government-financed reclamation who affects a water supply by
contamination, pollution, diminution or interruption shall restore or
replace the affected water supply with an alternate source, adequate in
water quantity and water quality, for the purpose served by the water
supply.'' The proposed regulations at 25 Pa. Code 87.119a(b)(2) and
88.107a(b)(2) provide that ``for any water supply that will, with a
reasonable degree of certainty established 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.''
OSMRE Finding: As discussed at Finding 3 above, the proposed
regulations at subsection (b) only require that a water supply
replacement be ``adequate'' considering its purpose, which we found
less stringent than the Federal regulations as discussed at Finding 3
above. Accordingly, the proposed regulations at 25 Pa. Code Sections
87.119a(b) and 88.107a(b) remain less stringent than required by the
Federal regulations because they do not require the replacement water
supply to be of ``equivalent to premining'' quantity and quality. 30
CFR 938.12(c)(5); 70 FR 25472, 25483 (May 13, 2005). Accordingly, we
are not approving the proposed regulations at 25 Pa. Code 87.119a(b)
and 88.107a(b) to the extent they would allow the replaced water supply
to be of a lesser quantity and quality than the premining water supply.
Otherwise, they are approved.
6. 25 Pa. Code Sections 87.119a(c) and 88.107a(c)--Temporary Water
Supplies
Pennsylvania has proposed regulations at 25 Pa. Code 87.119a(c) and
87.107a(c), requiring that, if the affected water supply owner or water
supply user whose supply is in the area of presumption as defined in
subsection (j)(1) is without a readily available alternate source of
water, the operator or mine owner shall provide a temporary water
supply within 24 hours of being contacted by the water supply owner,
water supply user or PADEP, whichever occurs first. The proposed
regulation provides that the temporary water supply shall meet the
quality requirements of subsection (f)(2) and provide sufficient
quantity to meet the water supply owner or water supply user's
premining needs, and that the requirement for a temporary water supply
may be subject to a preliminary determination by PADEP.
OSMRE Finding: The Federal definition of the term ``replacement of
water supply'' requires that an operator must restore or replace an
affected water supply, on both a temporary and permanent basis, with
one that is equivalent to premining quantity and quality. 30 CFR 701.5.
We did not approve the prior versions of Pennsylvania's water supply
replacement obligations provisions to the extent that they did not
require an operator to provide a temporary water supply in addition to
a permanent water supply as required by the Federal regulations at 30
CFR 701.5. 70 FR 25472, 25483 (May 13, 2005). Pennsylvania's proposal
to add a regulation requiring the provision of a temporary water supply
resolves this issue, which addresses one of the reasons we did not
approve 25 Pa. Code 87.119 and 88.107, as codified at 30 CFR
938.12(c)(5).
However, Pennsylvania's proposed regulations only require that the
temporary water supply meet the quality requirements of subsection
(f)(2) and provide ``sufficient'' quantity to meet the water supply
owner or water supply user's premining needs. As discussed at Finding 3
above, the criteria at proposed subsection (f), fall below the Federal
requirement that the replacement water supply be equivalent in quantity
and quality to the premining supply. We similarly find that a
``sufficient'' quantity of water is less stringent than the Federal
requirement for an ``equivalent'' quantity of water.
Because 25 Pa. Code 87.119a(c) and 88.107a(c) are less stringent
than the Federal regulations at 30 CFR 701.5, we are not approving them
to the extent they would allow the temporary water supply to be of a
lesser quantity and quality than the premining water supply. Otherwise,
they are approved.
7. 25 Pa. Code Sections 87.119a(d) and 88.107a(d)--Immediate
Replacement of Water Supply by the Department
Pennsylvania's proposed regulations at 25 Pa. Code Sections
87.119a(d)(1) and 88.107a(d)(1) provide that, if PADEP finds that
immediate replacement of an affected water supply used for potable or
domestic purposes is required to protect public health or safety, and
the operator or mine owner has failed to comply with an order issued
under section 4.2(f) of PASMCRA (52 P.S. 1396.4b(f)) (relating to the
mine owner liability to restore or replace an affected water supply),
PADEP may use moneys from the Surface Mining Conservation and
Reclamation Fund to restore or replace the affected water supply.
Subsections (d)(2) and (d)(2) would provide that PADEP will recover the
costs of such restoration or replacement, the costs of temporary water
supply, and costs incurred for design and construction of facilities
from the responsible operator or mine owner. Such costs recovered will
be deposited in the Surface Mining Conservation and Reclamation Fund.
OSMRE Finding: The foregoing proposed provisions at subsections
87.119a(d)(1) and 88.107a(d)(1) substantively match those that
previously appeared at 25 Pa. Code Sections 87.119(e) and 88.107(e),
while proposed sections 87.119a(d)(2) and 88.107a(d)(2) substantively
match those that previously appeared at 87.119(f) and 88.107(f). We
approved of former sections 87.119(e) and 88.107(e) for the same reason
that we approved Section 4.2(f)(3) of PASMCRA, finding that while there
is no provision in the Federal program expressly allowing an agency to
fund the restoration/replacement of temporary water supplies, it is not
inconsistent with SMCRA and the Federal regulations because it holds
the operator responsible for replacing water supplies affected by coal
mining operations through a cost recovery action. See 70 FR 25472,
25475-84 (May 13, 2005). We
[[Page 35412]]
approved of former sections 87.119(f) and 88.107(f) because, under
SMCRA, an operator remains responsible for replacing a water supply
that was affected by the mining operations, and former subsection (f)
provided another means to achieve that purpose. See 70 FR 25472, 25484
(May 13, 2005). We also found that there was no similar provision in
the Federal regulations, and that these were not inconsistent with the
requirements of SMCRA or the Federal regulations. Because the proposed
regulations at 25 Pa. Code Sections 87.119a(d) and 88.107a(d)
substantively match those we previously approved, the same analyses
apply. Accordingly, we approve the provisions proposed at 25 Pa. Code
Sections 87.119a(d) and 88.107a(d).
8. 25 Pa. Code Sections 87.119a(e) and 88.107a(e)--Reimbursement
Pennsylvania has proposed provisions at 25 Pa. Code Sections
87.119a(e) and 88.107a(e) which would require that if a water supply is
restored or replaced by the water supply owner or user prior to
establishing that mining activity is responsible for the pollution or
diminution, a responsible operator or mine owner must reimburse the
water supply owner or user for the cost of replacing or restoring a
water supply, including payment of increased operation and maintenance
costs. This subsection further provides that if the operator or mine
owner disputes the cost as presented by the water supply owner or user,
the operator or mine owner may present to PADEP comparable estimates
meeting the requirements of subsection (b)(1) from three water supply
installers in the area. PADEP will determine the fair cost of
reimbursement based upon these estimates and any other applicable
information. Without affecting a water supply owner's or user's other
rights consistent with subsection (l), an affected water supply owner
or user may make a reimbursement claim to PADEP against an operator or
mine owner only until final release of the reclamation bond for the
site.
OSMRE Finding: The first sentence of the proposed provision would
allow the owner or user of a water supply negatively affected by mining
to be made completely whole for the cost incurred if they choose to
replace the water supply before proving such to PADEP. This portion of
subsection (e) also does not relieve the mine owner or operator from
their responsibility to provide the water supply replacement and pay
all operating and maintenance costs of such. However, the following two
sentences of the proposed regulation provide that an operator that
disputes the cost presented by the water supply owner or user may
present to PADEP comparable estimates for three water supply installers
in the area that meet the requirements of subsection (b)(1), and that
PADEP will determine the fair cost of reimbursement based on such
estimates. The requirements of subsection (b)(1) incorporate the
``adequate in water quantity and quality'' standard we did not approve
as described in Findings 3 and 5 above. Pennsylvania's proposed
requirements use the standard of an ``adequate'' or ``sufficient''
supply, which falls below the Federal requirement that the replacement
water supply be equivalent in quantity and quality to the premining
supply. The final sentence, of subsection (e), only allowing the
affected water supply user to seek reimbursement from the mine company
or operator until final bond release, has no Federal equivalent but is
not inconsistent with SMCRA or the Federal regulations.
Accordingly, we do not approve of the proposed regulations at 25
Pa. Code Sections 87.119a(e) and 88.107a(e) to the extent that they
would set the amount of reimbursement based on estimates of an
``adequate'' water supply rather than one of equivalent quantity and
quality to the premining supply as required by the Federal regulations.
Otherwise, it is approved.
9. 25 Pa. Code Sections 87.119a(g) and 88.107a(g)--Increased Operation
and Maintenance Costs
Pennsylvania has proposed revisions to 25 Pa. Code Sections
87.119a(g) and 88.107a(g) relating to procedures that an operator or
mine owner must follow if the operation and maintenance costs of the
restored or replaced water supply are more than those of the previous
supply. These subsections require that the operator or mine owner shall
provide for the permanent payment of the increased operation and
maintenance costs of the restored or replaced water supply in
accordance with a procedure described in four subsequent subsections,
each with their own criteria.
Subsection (g)(1) requires PADEP to determine the amount of the
annual increase in operation and maintenance costs of the restored or
replaced water supply based on the current actual uses of the water
supply, based on information about those costs submitted by the mine
owner or operator, in consultation with the water supply owner or user.
Within 30 days after the end of the data collection period, the
operator or mine owner must submit to PADEP, and to the water supply
owner by certified mail, the operator's or mine owner's calculation of
the annual increased operation and maintenance costs, as well as a plan
for payment of these costs. The water supply owner may respond to the
proposed calculation of costs within 30 days from receipt of the
certified mail. PADEP is required to review the operator's or mine
owner's information, the water supply owner's information, and any
other information PADEP deems relevant, then determine the amount of
annual increase in operation and maintenance costs.
Subsection (g)(2) requires that within 60 days of PADEP's
determination of the annual increased cost, the operator shall post a
surety or collateral bond separate from the designated reclamation
bond, on a form prepared by PADEP, in an amount calculated in
accordance with a formula provided at subsection (g)(3). Pursuant to
subsection (g)(2)(ii), this bond amount will be reviewed and adjusted
as necessary and in accordance with 25 Pa. Code 86.152 (relating to
bond adjustments) at an interval no less than every five years in
conjunction with the permit renewal. Pursuant to subsection
(g)(2)(iii), a replacement bond must be posted by any successor
operator of the associated permit. Subsection (g)(2)(iv) provides that
if a water supply operation and maintenance costs bond is forfeited,
money received from the forfeiture of the bond can be used only for the
water supply for which PADEP forfeited the bond unless this supply has
since been abandoned. The money will be paid by PADEP to the current
water supply owner as a settlement of the water supply owner's claim
for increased operation and maintenance costs for the water supply for
which the bond was forfeited. If a permittee has posted a bond for
multiple water supplies, the moneys will be paid to the water supply
owners on a prorated basis, based on the respective operation and
maintenance costs.
Subsection (g)(3) provides a formula to calculate the amount of the
bond, which includes variables to account for annual increased
operation and maintenance costs as well as inflation.
Subsection (g)(4), relating to release of the obligation, provides
that a voluntary agreement between the water supply owner and the
operator or mine owner may be executed at any time. This agreement
shall include a notarized statement signed by the water supply owner
that documents the settlement of increased operation and maintenance
costs to the satisfaction of all parties. Upon receipt of the fully
executed and
[[Page 35413]]
recorded release, PADEP will consider the operator's or mine owner's
obligation to pay increased operation and maintenance costs for the
water supply to be satisfied and any bonds posted for this supply can
be released.
OSMRE Finding: The Federal regulations at 30 CFR 701.5 state that
replacement of a water supply includes provision of an equivalent water
delivery system and payment of operation and maintenance costs in
excess of customary and reasonable delivery costs for premining water
supplies. However, 30 CFR 701.5 continues that, upon agreement by the
permittee and the water supply owner, the obligation to pay such
operation and maintenance costs may be satisfied by a one-time payment
in an amount which covers the present worth of the increased annual
operation and maintenance costs for a period agreed to by the permittee
and the water supply owner.
The proposed Subsections 87.119a(g) and 88.107a(g) satisfy the
requirements at the Federal regulations that waiver of the water supply
replacement obligation as to the portion of increased operation and
maintenance costs. As with the Federal regulation, a written waiver is
required, and the requirement of a one-time payment will be satisfied,
at the very least, in the form of the bond forfeiture and settlement
remitted to the water supply owner or user pursuant to subsection
(g)(2)(iv). Because the proposed Subsections 87.119a(g) and 88.107a(g)
comply with the provisions relating to voluntary waiver of the
obligation to provide increased operation and maintenance costs at 30
CFR 701.5, we are approving them.
10. 25 Pa. Code Sections 87.119a(h) and 88.107a(h)--Special Provisions
for Operation and Maintenance Costs
Proposed subsections 87.119a(h)(1) and 88.107a(h)(1) would provide
that if ownership of the affected water supply changes, the operator or
mine owner must continue to pay the increased operation and maintenance
costs unless a release outlined in subsection (g)(4) is executed.
Subsections 87.119a(h)(2) and 88.107a(h)(2) provide that an operator
who incurs the obligation to pay for increased operation and
maintenance costs for multiple water supplies may post one bond that
covers the increased operation and maintenance costs for multiple water
supplies. The procedures for calculating this bond amount shall be
consistent with a single supply bond value as described in subsection
(g)(3) but the bond amount must be sufficient to provide for the
payment for each water supply in the event that the operator defaults
on the legal obligation of permanent payment.
OSMRE Finding: We have determined that there are is no direct
Federal counterpart to 25 Pa. Code sections 87.119a(h) and 88.107a(h).
Subsections 87.119a(h)(1) and 88.107a(h)(1) continue to require an
operator to pay increased operation and maintenance costs until
release, per subsection (g) which we approved above. Nothing at
subsection (h)(2) substantively changes the requirement that the
operator or mine owner must pay for the increased operation and
maintenance costs until release, as required by 30 CFR 701.5. We find
that proposed regulations at subsection (h) are consistent with SMCRA
and no less stringent than the Federal regulations. Therefore, we are
approving them.
11. 25 Pa. Code Sections 87.119a(i) and 88.107a(i)--Waivers
Pennsylvania has proposed regulations at 25 Pa. Code 87.119a(i)
(formerly 25 Pa. Code 87.119(a)(3)) and 25 Pa. Code 88.107a(i)
(formerly 25 Pa. Code 88.107(a)(3)) related to procedures for waiving
the obligation to provide water supply replacement. Pennsylvania's
proposed regulations at subsection (i) would allow waiver of the
requirement to restore or replace an affected water supply if: PADEP
determines that the affected water supply is to be abandoned whereby a
replacement is no longer needed based on the approved post-mining land
use; and, a notarized written statement signed by all persons who
possess an ownership interest in the water supply is submitted to PADEP
establishing that the individuals knowingly and willingly agree to
abandon the water supply.
OSMRE Finding: We previously did not approve the waiver provisions
at 25 Pa. Code 87.119(a)(3) and 88.107(a)(3) to the extent they would
allow a waiver from the requirements for replacing a water supply
outside the requirements of 30 CFR 701.5 regarding the definition of
the term, ``replacement of water supply.'' 70 FR 25472, 25483 (May 13,
2005). The Federal definition for ``replacement of water supply''
states that ``if the affected water supply was not needed for the land
use in existence at the time of loss, contamination, or diminution, and
if the supply is not needed to achieve the postmining land use,
replacement requirements may be satisfied by demonstrating that a
suitable alternative water source is available and could feasibly be
developed. If the latter approach is selected, written concurrence must
be obtained from the water supply owner.'' 30 CFR 701.5. We disapproved
of Pennsylvania's prior regulations for falling below the Federal
requirement, since it allowed a waiver from the restoration or
replacement obligations without requiring a demonstration that a
suitable alternative water source is available and could feasibly be
developed, and the water supply is not needed for the land use in
existence at the time it was affected by surface mining and the supply
is not needed to achieve the postmining land use. 70 FR 25472, 25483
(May 13, 2005).
Pennsylvania's proposed regulations at subsection (i) would require
that before the obligation to restore or replace an affected water
supply can be waived, PADEP must determine the affected water supply
``is to be abandoned whereby a replacement is no longer needed based on
the approved post-mining land use.'' While Pennsylvania's new proposed
regulations address the Federal requirement for a demonstration that
the water supply is not needed to achieve the postmining land use,
there is no explicit requirement that PADEP make any findings related
to the supply's necessity for the land use in existence at the time it
was affected by surface mining, nor that a suitable alternative water
source is available and could feasibly be developed.
Accordingly, we do not approve the proposed regulations at 25 Pa.
Code 87.119a(i) and 88.107a(i) to the extent they would allow a waiver
from the requirements for replacing a water supply outside the
requirements of 30 CFR 701.5 regarding the definition of the term,
``replacement of water supply.''
12. 25 Pa. Code Sections 87.119a(j) and 88.107a(j)--Presumption of
Liability
Pennsylvania has submitted 25 Pa. Code Sections 87.119a(j) and
88.107a(j) for approval, relating to the presumption of liability for
pollution and its defenses. This section combines and makes minor
changes to provisions previously located at 25 Pa. Code Sections
87.119(b)-(d) and 88.107(b)-(d).
Proposed subsection (j)(1) provides that it shall be presumed, as a
matter of law, that a mine operator or owner is responsible without
proof of fault, negligence, or causation for all pollution and
diminution, except for bacteriological contamination, of public or
private water supplies within 1,000 linear feet of the boundaries of
any areas affected by surface mining activities whether or not
permitted, including all reclaimed areas that underwent these
activities. Areas utilized solely for haul and access roads are not
included in the
[[Page 35414]]
presumption area. This language substantively matches that which
previously appeared at 87.119(b)(1) and 88.107(b)(1).
Proposed subsection (j)(2), and the following subsection at
(j)(2)(i) through (iv), provide largely similar defenses to the
presumption of liability to those that previously appeared at Sections
87.119(c)(1)-(5) and 88.107(c)(1)-(5). These defenses include: the
operator, mine owner, or PADEP determines that the water supply is not
within the 1,000-foot area; the water supply owner refused to allow the
operator or mine owner access to conduct a water supply survey prior to
commencing surface mining activities; the water supply owner or water
supply user refused to allow the operator or mine owner access to
determine the cause of pollution or diminution or to replace or restore
the water supply; the pollution or diminution existed prior to the
surface mining activities as evidenced by a water supply survey
conducted prior to commencing surface mining activities and as
documented in the approved surface mine permit application submitted to
the Department prior to permit issuance; and, the pollution or
diminution is not a result of the surface mining activities.
Proposed subsection (j)(3) matches provisions previously located at
sections 87.119(d) and 88.107(d), stating that if the operator or mine
owner intends to demonstrate the presumption of liability is not
applicable, they shall notify PADEP and provide supporting evidence.
Subsection (j)(3) adds the requirement that PADEP consider the
submitted proof and make a liability determination within 90 days of
the operator's or mine owner's submissions.
OSMRE Finding: The foregoing subsections substantively match those
we previously approved at 25 Pa. Code Sections 87.119(b)-(d) and
88.107(b)-(d). 70 FR 25472, 25483-84 (May 13, 2005). We found that the
Federal regulations do not provide for a similar rebuttable presumption
for such liability, but that this does not prohibit Pennsylvania from
enacting such a presumption. We found those subsections are not
inconsistent with the requirements of SMCRA and the Federal regulations
because they do not eliminate an operator's responsibility under
Section 717(b) of SMCRA. The presumptions and their enumerated defenses
do not relieve the regulatory authority of its initial burden. If the
evidence demonstrates that a water supply is affected within the
presumption area, then the operator has the burden to rebut the
presumption with one of the defenses, and the ultimate burden remains
with the regulatory authority. Nothing in the changes proposed in
subsection (j) changes our prior analysis. We find these provisions
have no direct Federal counterpart, but that they are consistent with
SMCRA and are no less stringent than the Federal regulations.
Therefore, we approve them.
13. 25 Pa. Code Sections 87.119a(k) and 88.107a(k)--Operator Cost
Recovery
Pennsylvania has proposed revisions to its regulations at
87.119a(k) and 88.107a(k) (formerly located at 25 Pa. Code sections
87.119(g) and 88.107(g)), which were previously not approved because
they allowed for operators to recover costs if an operator successfully
appeals a PADEP order to restore or replace water supply. We did not
approve these regulations because they were the implementing
regulations for Section 4.2(f)(5) of PASMCRA (52 P.S. 1396.4b(f)(5)),
which allowed a surface operator or owner to recover sustained costs
from PADEP if an effective defense to presumption was provided. Since
Section 4.2(f)(5) was repealed, we found that there was no statutory
authority for the regulations at 25 Pa. Code Sections 87.119(g) and
88.107(g). 70 FR 25472, 25484 (May 13, 2005).
OSMRE Finding: Pennsylvania's proposed regulations at 25 Pa. Code
87.119a(k) and 88.107a(k) identify statutory authority for their cost
recovery provisions at 27 Pennsylvania Consolidated Statutes (Pa. C.S.)
Section 7708 (Costs for Mining Proceedings). 27 Pa.C.S. Section 7708(a)
states that the purpose of this statute is to provide costs and fees
available in proceedings involving coal mining activities to the same
extent of section 525(e) of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1275(e)) and the regulations promulgated
pursuant thereto. We previously approved 27 Pa.C.S. Section 7708,
finding that it was consistent with SMCRA and no less stringent than
the Federal regulations. 66 FR 57662, 57664 (November 16, 2001).
Because the proposed regulations at 25 Pa. Code 87.119a(k) and
88.107a(k) are authorized by 27 Pa.C.S. Section 7708 (Costs for Mining
Proceedings) which we have previously found to be consistent with SMCRA
and the Federal regulations, we approve these provisions.
14. 25 Pa. Code Sections 87.119a(l) and 88.107a(l)--Other Remedies
Pennsylvania has proposed regulations at 25 Pa. Code Sections
87.119a(l) and 88.107a(l), which both provide ``nothing in this section
prevents a water supply owner or water supply user who claims pollution
or diminution of a water supply from pursuing any other remedy that may
be provided for in law or in equity.'' This portion subsection (l)
matches provisions we previously approved at 25 Pa. Code Sections
87.119(h) and 88.107(h). See 70 FR 25472, 25484 (May 13, 2005).
Pennsylvania's proposal has added a sentence at the end, stating ``this
section does not prevent an operator or mine owner from pursuing any
remedy in law or in equity should the operator incur costs for
restoring or replacing a water supply that experienced pollution or
diminution caused by third parties.''
OSMRE Finding: The first sentence of the proposed subsection (l)
matches provisions we previously approved at 25 Pa. Code Sections
87.119(h) and 88.107(h). See 70 FR 25472, 25484 (May 13, 2005). We
found that nothing in those sections prevent anyone who claims water
pollution or diminution of a water supply from pursuing any other
remedy that may be provided for in law or equity. We also found that
there is no Federal counterpart to these provisions, and that
landowners or water supply users have the full protection of Chapters
87 and 88 even while pursuing other avenues of redress. That same
analysis applies here.
Regarding the additional sentence, the provision that an operator
or mine owner may pursue costs for restoring or replacing a water
supply because of damage caused by third parties, also has no Federal
counterpart. However, its addition does not render the Pennsylvania
program inconsistent with SMCRA or less stringent than the Federal
regulations. Since all the protections of Chapter 87 and 88 remain
available, we have determined that the proposed regulations at
subsection (l) are not inconsistent with the requirements of SMCRA or
the Federal regulations. Accordingly, we approve them.
15. 25 Pa. Code sections 87.119a(m) and 88.107a(m)--Issuance of New
Permits
Certain provisions of section 4.2(f)(4) (52 P.S. 1396.4b(f)(4)) of
the Pennsylvania Surface Mining Conservation and Reclamation Act
(PASMCRA) (52 P.S. 1396.1 et seq.) and 25 Pa. Code sections 87.119(i)
and 88.107(i) were not previously approved in our decision of May 13,
2005, because they allowed for final bond release when there is an
outstanding Pennsylvania Department of Environmental Protection (PADEP)
water replacement order. 30 CFR 938.12(c)(1), (c)(7); 70 FR 25472,
25475
[[Page 35415]]
(May 13, 2005). 25 Pa. Code 87.119(i) and 88.107(i) provided that a
PADEP water replacement order could not be used to block issuance of
new permits ``or the release of bonds when a stage of reclamation work
is completed.''
While the disapproved language at section 4.2(f)(4) of PASMCRA (52
P.S. 1396.4b(f)(4)) has not had the offending bond release language
removed, Pennsylvania has proposed regulations largely matching the
prior, non-approved subsection (i) at 25 Pa. Code 87.119a(m) and
88.107a(m). Proposed subsection (m) still provides that a PADEP water
replacement order which is appealed will not be used to block issuance
of new permits. However, the former provision related to bond release
has been deleted.
OSMRE Finding: By striking the bond release provision from this
regulation, Pennsylvania's proposed subsection (m) is now consistent
with Section 519(c)(3) of SMCRA (30 U.S.C. 1269) and 30 CFR
800.40(c)(3) by preventing final bond release when a PADEP water supply
replacement order is under appeal. Phase 3 bond release cannot be
granted until all reclamation requirements of SMCRA and the permit are
fully met. Because the proposed regulations at subsection (m) comply
with SMCRA and are no less stringent than the Federal regulations, we
approve of these changes. This approval resolves our prior non-approval
codified at 30 CFR 938.12(c)(7).
16. 25 Pa. Code Sections 87.119a(n) and 88.107a(n)--Department
Authority
Pennsylvania has submitted 25 Pa. Code Sections 87.119a(n) and
88.107a(n) for approval, which both read ``nothing in this section
limits the Department's authority under section 4.2(f)(1) of
[PASMCRA].''
OSMRE Finding: The foregoing proposed provisions at 25 Pa. Code
match provisions we previously approved at 25 Pa. Code Sections
87.119(j) and 88.107(j). See 70 FR 25472, 25484 (May 13, 2005). We
found that this subsection was not inconsistent with SMCRA or the
Federal regulations, and the same analysis applies here. Accordingly,
we are approving these provisions.
17. 25 Pa. Code Sections 87.119a(o) and 88.107a(o)--Exception
Pennsylvania has proposed regulations at 25 Pa. Code Sections
87.119a(o) and 88.107a(o), which provide ``a surface mining operation
conducted under a surface mining permit issued by the Department before
February 16, 1993, is not subject to subsections (b)-(i) but is subject
to subsections (a) and (j).''
OSMRE Finding: Aside from the renumbering of internal cross-
references, the foregoing proposed provisions at 25 Pa. Code match
provisions we previously reviewed at 25 Pa. Code Sections 87.119(k) and
88.107(k). See 70 FR 25472, 25484 (May 13, 2005). We found that these
provisions were not inconsistent with SMCRA or the Federal regulations,
and that same analysis applies here. Accordingly, we approve these
subsections to the extent that they require compliance with the
provisions of 25 Pa. Code Sections 87.119a and 88.107a which we have
approved above.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment but received none.
Federal Agency Comments
On August 5, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the Pennsylvania
program (Administrative Record No. 907.01). We did not receive any
comments.
V. OSMRE's Decision
Based on the above findings we approve, with certain exceptions,
Pennsylvania's program amendment sent to us on August 5, 2021
(Administrative Record No. PA 907.00). We are not approving the
following provisions to the extent noted:
25 Pa. Code 87.119a and 88.107a. We are not approving subsections
(b), (c), and (f) to the extent that they would allow the replaced
water supply to be of a lesser quantity and quality than the premining
water supply.
25 Pa. Code 87.119a(e) and 88.107a(e). We are not approving these
subsections to the extent that they would set the amount of
reimbursement based on estimates of an ``adequate'' water supply rather
than one of equivalent quantity and quality to the premining supply.
25 Pa. Code 87.119a(i) and 88.107a(i). We are not approving these
subsections to the extent that they would allow a waiver from the
requirements for replacing a water supply outside the requirements of
30 CFR 701.5 regarding the definition of the term, ``replacement of
water supply.''
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. Section 503(a)
of SMCRA requires that the State's program demonstrate that the State
has the capability of carrying out the provisions of the Act and
meeting its purposes. SMCRA requires consistency of State and Federal
standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public 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 and 13563--
Improving Regulation and 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 amendments is exempted from OMB
review under Executive Order 12866.
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 has determined
that this Federal Register notice 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 notice and
to changes to the Federal regulations. The review under this Executive
Order did
[[Page 35416]]
not extend to the language of the State regulatory program or to the
program amendment that the Commonwealth of Pennsylvania drafted.
Executive Orders 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
regulatory program, implements and administers SMCRA and its
implementing regulations at the state level. This rule approves an
amendment to the Pennsylvania program 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 basis for this
determination is that our decision on the Pennsylvania program does not
include Indian lands as defined by SMCRA or other Tribal lands and it
does not affect the regulation of activities on Indian lands or other
Tribal lands. Indian lands under SMCRA are regulated independently
under the applicable, Federal Indian 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
significant energy action under the definition in Executive Order
13211, a statement of energy effects is not required.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
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 US.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.
Ben Owens,
Acting Regional Director, Interior Regions 1 & 2.
For the reasons set out in the preamble, 30 CFR part 938 is amended
as set forth below:
PART 938--PENNSYLVANIA
0
1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 938.12 is amended by:
0
a. Removing and reserving paragraphs (c)(4) and (7).
0
b. Adding paragraph (f).
The addition reads as follows:
Sec. 938.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(f) We are not approving the following portions of provisions of
the proposed program amendment that Pennsylvania submitted on August 5,
2021:
(1) 25 Pa. Code 87.119a and 88.107a. We are not approving
subsections (b), (c), and (f) to the extent that they would allow the
replaced water supply to be of a lesser quantity and quality than the
premining water supply.
(2) 25 Pa. Code 87.119a(e) and 88.107a(e). We are not approving
these subsections to the extent that they would set the amount of
reimbursement based on estimates of an ``adequate'' water supply rather
than one of equivalent quantity and quality to the premining supply.
(3) 25 Pa. Code 87.119a(i) and 88.107a(i). We are not approving
these
[[Page 35417]]
subsections to the extent that they would allow a waiver from the
requirements for replacing a water supply outside the requirements of
30 CFR 701.5 regarding the definition of the term, ``replacement of
water supply.''
0
3. Section 938.15 is amended in the table by adding an entry for
``August 5, 2021'' in chronological order by ``Date of final
publication'' to read as follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
August 5, 2021.......................... July 28, 2025.............. 25 Pa. Code 87.1 (addition of definitions
for ``operation and maintenance costs''
and ``water supply owner,'' revision of
the definition for ``water supply''); 25
Pa. Code 88.1 (addition of definitions
for ``operation and maintenance costs''
and ``water supply owner,'' revision of
the definition for ``water supply''); 25
Pa. Code 87.47 (revision of text to
permit application requirements,
including renumbering of an internal
reference, rewording text to indicate
``any water supply,'' removal of
requirement that water supply is ``for
domestic, agricultural, industrial or
other legitimate use,'' addition of a
requirement to provide cost calculations
to restore or replace water supplies,
and addition of requirement that PADEP
notify the water supply owner of any
potentially affected water supply); 25
Pa. Code 88.27 (revision of text to
permit application requirements,
including rewording text to indicate
``any water supply,'' removal of
requirement that water supply is ``for
domestic, agricultural, industrial or
other legitimate use,'' addition of a
requirement to provide cost calculations
to restore or replace water supplies,
and addition of requirement that PADEP
notify the water supply owner of any
potentially affected water supply); 25
Pa. Code 87.119a(a), (d), (g), (h), (j),
(k), (l), (m), (n), and (o); and 25 Pa.
Code 88.107a(a), (d), (g), (h), (j),
(k), (l), (m), (n), and (o).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2025-14245 Filed 7-25-25; 8:45 am]
BILLING CODE 4310-05-P
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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.