Rule2026-00701
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
January 15, 2026
Effective
February 17, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), approve an amendment to the Pennsylvania regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the Pennsylvania program by adding language consistent with section 5 of the Bituminous Mine Subsidence and Land Conversation Act, which specifies circumstances where a finding of presumptive evidence of potential pollution under the Commonwealth's Clean Streams Law is not warranted.
Full Text
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<title>Federal Register, Volume 91 Issue 10 (Thursday, January 15, 2026)</title>
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[Federal Register Volume 91, Number 10 (Thursday, January 15, 2026)]
[Rules and Regulations]
[Pages 1696-1706]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00701]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[SATS No. PA-166-FOR; Docket ID: OSM-2017-0008; S1D1S SS08011000
SX064A000 256S180110; S2D2S SS08011000 SX064A000 25XS501520]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
[[Page 1697]]
(OSMRE), approve an amendment to the Pennsylvania regulatory program
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act). The amendment revises the Pennsylvania program by adding
language consistent with section 5 of the Bituminous Mine Subsidence
and Land Conversation Act, which specifies circumstances where a
finding of presumptive evidence of potential pollution under the
Commonwealth's Clean Streams Law is not warranted.
DATES: This rule is effective February 17, 2026.
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:
(412) 937-2827; Fax: (412) 937-2177; Email: <a href="/cdn-cgi/l/email-protection#cbbfa0a4bbbfa8a3aaa08ba4b8a6b9aee5aca4bd"><span class="__cf_email__" data-cfemail="61150a0e11150209000a210e120c13044f060e17">[email protected]</span></a>.
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 July 30,
1982, Federal Register (47 FR 33050). You can also find later actions
concerning the Pennsylvania program and program amendments at 30 CFR
938.11, 938.12, 938.13, 938.15 and 938.16.
II. Submission of the Amendment
By letter dated August 4, 2017 (Administrative Record No. PA
899.00), the Pennsylvania Department of Environmental Protection
(PADEP) sent us an amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). On July 21, 2017, the Pennsylvania General Assembly enacted
Act 32, which amended section 5 of the Commonwealth's Bituminous Mine
Subsidence and Land Conservation Act (BMSLCA), 52 P.S. 1406.5, by
specifying circumstances where a finding of presumptive evidence of
potential pollution, as the term ``pollution'' is defined under the
Commonwealth's Clean Streams Law, 35 P.S. 691.1 (Definitions), is not
warranted. The specified circumstances appear in new subsections 5(i)
and 5(j) (52 P.S. 1406.5(i), -(j)).
Act 32 also amended subsection 9a(d) of BMSLCA, 52 P.S. 1406.9a(d),
to except 52 P.S. 1406.5(i) from the rule in subsection 1406.9a(d)
prohibiting anything in BMSLCA from being construed to amend, modify,
or otherwise supersede any standard contained in the Pennsylvania Clean
Streams Law at 35 P.S. 691.1 et seq. Notably, the new sections of 52
P.S. 1406.5(i)-(j) are not excepted from the rule at 52 P.S.
1406.9a(d)(1) prohibiting any part of BMSLCA from being construed to
amend, modify, or otherwise supersede the standards related to
prevailing hydrologic balance in SMCRA. Finally, section 3 of Act 32
specified that the amendments to 52 P.S. 1406.5(i)-(j) apply only to
permits issued after October 8, 2005.
We announced receipt of the proposed amendment in the March 12,
2018. Federal Register (83 FR 10647). 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. The public comment
period was originally set to end on April 11, 2018. At the request of
thirteen citizens, however, we reopened the public comment period and
approved a request for a public hearing.
In a May 8, 2018, Federal Register notice (83 FR 20774), we
erroneously stated that a public hearing would be held on May 1, 2018,
with public comment period ending June 7, 2018. But in a May 16, 2018,
Federal Register notice (83 FR 22607), we published a correction to the
public hearing date. As corrected, the public comment period ended on
June 15, 2018, and we held a public hearing on May 17, 2018, in Green
Tree, Pennsylvania (Administrative record number PA 899.13). We
received 55 substantive written comments and additional oral comments
at a public hearing which are addressed in the ``Public Comments''
section of Part IV, ``Summary and Disposition of Comments,'' below.
III. OSMRE's Findings
We are approving the amendment as described below. We made the
following findings concerning Pennsylvania's amendment under SMCRA and
the Federal regulations at 30 CFR 730.5, 732.15, and 732.17. Any
revisions that we do not specifically discuss 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>, searchable
by the docket ID numbers referenced at the top of this notice.
Through Act 32, Pennsylvania added language to section 5 of BMSLCA,
52 P.S. 1406.5, specifying circumstances where a finding of presumptive
evidence of potential pollution is not warranted. In particular, 52
P.S. 1406.5(i) states that, in a permit application to conduct
underground bituminous coal mining operations, planned subsidence (that
is, subsidence occurring in a predictable and controlled manner which
is not predicted to result in the permanent disruption of premining
existing or designated uses of surface waters) will not be considered
presumptive evidence that the proposed operations have the potential to
cause ``pollution,'' as that term is defined in section 1 of the Clean
Streams Law (Pub. L. 1987, No. 394, 35 P.S. 691.1 et seq.).
Act 32 provided language, at 52 P.S. 1406.5(j)(1), that section 52
P.S. 1406.5(i) only applies if (1) a person submits an application to
conduct bituminous mining operations that specifically provides for the
restoration of the premining range of flows and for restoration of
premining biological communities in any waters of Pennsylvania
predicted to be adversely affected by subsidence and (2) the
application is approved by the Department. Act 32 further states, at 52
P.S. 1406.5(i)(1), that the referenced ``restoration'' must be
consistent with the premining existing and designated uses of the
waters of Pennsylvania.
The criteria for permit approval in Pennsylvania's administrative
code appear in 25 Pa. Code 86.37. 25 Pa. Code 86.37(a)(3) currently
provides that, to obtain a permit, an applicant must demonstrate that
there is ``no presumptive evidence of potential pollution of the waters
of this Commonwealth.'' Act 32 specifies that planned subsidence in a
predictable and controlled manner, which is not predicted to result in
the permanent disruption of premining existing or designated uses of
Pennsylvania surface waters, will not constitute evidence that
[[Page 1698]]
the proposed bituminous coal mining operations have the potential to
cause pollution as defined in section 1 of the Clean Streams Law.
While there is no Federal counterpart to 25 Pa. Code 86.37(a)(3),
the most closely related provisions for underground mining are found in
(1) 30 CFR part 784, which governs permit applications for underground
mining and sets forth the minimum requirements for the reclamation and
operation plans required of operators and (2) 30 CFR part 817, which
sets forth operational performance standards. 30 CFR part 784 includes
provisions identifying the information required in reclamation and
operation plans submitted during the application process, including
information relating to hydrologic conditions (30 CFR 784.14) and fish
and wildlife resources (30 CFR 784.21).
For example, 30 CFR 784.14(g) requires that such plans identify the
steps to be taken to minimize disturbance to the hydrologic balance
from underground mining within and adjacent to the permit area and to
prevent material damage to the hydrologic balance outside the permit
area. Similarly, 30 CFR 817.41(a) requires that underground mining and
reclamation activities be ``conducted to minimize disturbance of the
hydrologic balance within the permit and adjacent areas, to prevent
material damage to the hydrologic balance outside the permit area, and
to support approved postmining land uses.'' These provisions, including
use of the term ``minimize,'' make clear that some amount of
disturbance is permissible, provided it does not rise to the level of
material damage.
PADEP, in approving applications for planned subsidence and
addressing operational deficiencies, has historically interpreted the
provisions in this manner. Act 32 codifies this interpretation and,
contrary to the suggestions of several commenters, does not authorize
destruction of streams, as we further explain in our responses to
public comments in section IV.
We find that the Pennsylvania program, even with the addition of
Act 32, exceeds Federal standards. The proposed statutory language
leaves intact the regulatory requirement in 25 Pa. Code 86.37(a)(3)
that mining applicants demonstrate there is no presumptive evidence of
potential pollution and provides that subsidence, done in a predictable
and controlled manner that is not predicted to result in the permanent
disruption of premining existing or designated uses of surface waters,
is not presumptive evidence of potential pollution. We find this
specification to be a proper exercise of regulatory authority given the
broad language on presumptive evidence in the current version of 25 Pa.
Code 86.37(a)(3).
Even with the addition of Act 32's specification that properly
planned subsidence is not presumptive evidence of potential pollution,
the Pennsylvania program remains more effective than the relevant
Federal regulations, particularly 30 CFR 784.14, 784.21, and 817.41, as
discussed below. It also remains more stringent than section 516 of
SMCRA (30 U.S.C. 1266).
Specifically, 30 U.S.C. 1266 provides that mine operators must
``minimize'' disturbances to the prevailing hydrologic balance and
``avoid'' acid or other mine drainage. By contrast, Pennsylvania's Act
32 imposes an affirmative duty on permit applicants to demonstrate the
absence of any ``presumptive evidence of potential pollution,'' even
while limiting the scope of what automatically qualifies as such
presumptive evidence. Moreover, section 5(j) of Act 32 provides that
this exemption from presumptive evidence of pollution is only available
when the permit application provides for the restoration of the
premining range of flows and restoration of premining biological
communities in any waters predicted to be adversely affected by
subsidence, and that the restoration shall be consistent with the
premining existing and designated uses of the waters of Pennsylvania.
Even as amended by Act 32, Pennsylvania's regulatory scheme
promotes the core objective of 30 U.S.C. 1266(b)(9), which is to
minimize disturbances to the prevailing hydrologic balance at the
minesite and in associated offsite areas and to the quantity of water
in surface groundwater systems both during and after coal mining
operations and during reclamation. Thus, the Pennsylvania regulatory
scheme remains in accordance with SMCRA and consistent with (and more
stringent than) the Federal regulations.
For these reasons, we are approving the proposed changes.
IV. Summary and Disposition of Comments
Public Comments
We announced the receipt of the proposed amendment in the March 12,
2018, Federal Register (83 FR 10647). In the same notice, we initially
opened the public comment period through April 11, 2018, and provided
an opportunity for a public hearing or meeting on the adequacy of the
amendment. As discussed in section II, above, the comment period was
extended to June 15, 2018, and a public hearing was held in Green Tree,
Pennsylvania, on May 17, 2018.
Public comments were received in writing and orally at the public
hearing. Seven individuals spoke at the public hearing (three opposed
to Act 32 and four in favor). Additionally, we received written public
comments during the comment period. The substantive comments about the
amendment that we received are summarized below, which also includes
our responses. In addition, we received 62 non-substantive comments or
comments that are beyond the scope of this amendment; no response to
those comments are necessary. The comments are available in their
entirety at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Comment 1: This commenter opposed the amendment and raised specific
concerns about the amendment's consistency with a premise in the
Pennsylvania regulatory scheme that if someone can show that mining
will cause irreparable stream damage, no permit will be issued.
OSMRE Response: We disagree with the commenter's characterization
of the Pennsylvania program. Both before and after the enactment of Act
32, under the Pennsylvania program, the operator is required to
demonstrate the absence of presumptive evidence of pollution. The
proposed amendment simply adds that, if planned subsidence will be done
in a predictable and controlled manner and is not predicted to result
in the permanent disruption of streams, then it will not be considered
presumptive evidence of pollution under the Clean Streams Law. In
addition, this exemption is only available when the operator's
application provides for the restoration of the premining range of
flows and restoration of premining biological communities predicted to
be adversely affected by subsidence, and that such restoration is
consistent with the premining existing and designated uses of
Pennsylvania waters. Furthermore, to undertake planned subsidence, an
operator must obtain approval from PADEP. This approval must be based
on PADEP's technical review of applications and supporting data. Under
section 5(j) of Act 32, PADEP must conclude that the application
adequately ``provide[s] for'' restoration of premining flows and
premining biological communities.
Comment 2: Commenter stated that Act 32 fails to regulate and
protect the common resources of State streams.
OSMRE Response: We disagree with the commenter's assessment of the
[[Page 1699]]
proposed amendment; Act 32 clarifies the Pennsylvania regulatory
program, and, operating in conjunction with the existing regulatory
scheme, the program is in accordance with SMCRA and consistent with the
Federal regulations that govern the protections for streams potentially
impacted by coal mining. Section 5(j) ensures that permit applications
specifically ``provide for'' restoration of the premining range of
flows and for restoration of premining biological communities. It also
directs that ``restoration'' be consistent with the premining existing
and designated uses of the water resources. These additional regulatory
requirements have no specific counterparts in the Federal regulations,
and we find they make the Pennsylvania program more stringent than
SMCRA in regard to hydrologic balance. Before enactment of Act 32,
planned subsidence was allowable under long-standing practice,
supported by PADEP's view that it does not constitute presumptive
evidence of pollution under the Clean Streams Law. Act 32 codifies that
practice, which clarifies the law for operators, regulators, and the
public. As noted, it also adds a safeguard by requiring operators that
seek approval of planned subsidence to submit applications that
``provide for'' restoration of premining flows and premining biological
communities. Additional safeguards are discussed in the responses to
comments below.
Comment 3: Commenter claimed that most longwall mines dewater the
streams above them, and this dewatering is often complete. Commenter
claimed that, when this occurs, industry is unable to restore both the
premining flow and the premining aquatic biology, which means that the
damage to streams is often not reparable, and the water chemistry
irreparably affected.
OSMRE Response: Under Federal and Pennsylvania law both before and
after Act 32, ``perfect'' stream restoration is not required.
Subsection 516(b)(1) of SMCRA (30 U.S.C. 1266(b)(1)) regulates surface
effects of underground mining, requiring operators to adopt measures
``consistent with known technology in order to prevent subsidence
causing material damage to the extent technologically and economically
feasible.'' This standard is echoed in Pennsylvania law at 52 P.S.
Sec. 1406.5(e). In addition, subsection 516(b)(9) of SMCRA requires
that activities be conducted to ``minimize disturbance of the
hydrologic balance within the permit and adjacent areas, to prevent
material damage to the hydrologic balance outside the permit area, and
to support approved postmining land uses.'' OSMRE's regulations echo
and reinforce these requirements. Under 30 CFR 817.41, underground
mining and reclamation activities must be ``conducted to minimize
disturbance of the hydrologic balance within the permit and adjacent
areas, to prevent material damage to the hydrologic balance outside the
permit area, and to support approved postmining land uses.'' As these
provisions make clear, some amount of damage is permissible, provided
it does not rise to the level of material damage. If it rises to
material damage, remedies and enforcement mechanisms for addressing
damage exist under the Pennsylvania program and the Federal
regulations. See, e.g., 25 Pa. Code Sec. 86.211 (abatement orders); 25
Pa. Code Sec. 86.194(b)(1)(i) (assessment of civil penalties for
``damage or injury to the lands or to the waters . . . or their
uses''); 30 CFR 843.11 (federal cessation orders, including imposition
of ``affirmative obligations'' on the permittee to abate ``imminent
danger or significant environmental harm''). For all these reasons, we
disagree with commenter's suggestion that risk of dewatering or
impacting water chemistry precludes approval of Act 32. In our
oversight role, we will continue to monitor success with stream
restoration following planned subsidence in accordance with the
applicable standards.
Comment 4: Commenter pointed to proposed section 5(i), which adds
planned subsidence to the circumstances where a finding of presumptive
evidence of potential pollution is not warranted, and contended that
operators will never predict permanent damage because there is ``no
solid evidence to assure [any disruption] won't be permanent.''
OSMRE Response: Permit applications and supporting data are
reviewed by PADEP technical staff. If an application predicts no
permanent damage but the operational plans or supporting data
(considered in light of site geology and hydrology) fail to support
that prediction, PADEP would be obligated to disapprove the
application. If an interested party objects to how PADEP exercises its
discretionary authority and applies its technical expertise in
approving planned subsidence, legal mechanisms exist for challenging
PADEP's approval, including appeal to Pennsylvania's Environmental
Hearings Board. Commenters' concern that permanent damage is never
predicted (and the implication that it would be carelessly approved) do
not make Act 32 less stringent or less effective than SMCRA or its
implementing regulations, which is the standard governing OSMRE
approval of state program amendments.
Comment 5: Commenter stated that the amendment is an attempt to
ensure that environmental groups cannot argue that a longwall mine that
predicts dewatering damage should be denied a permit.
OSMRE Response: Permit applications and supporting data are
reviewed by PADEP technical staff. If an application predicts no
permanent damage but the operational plans or supporting data
(considered in light of site geology and hydrology) fail to support
that prediction, PADEP would be obligated to disapprove the
application. If an interested party objects to the how PADEP exercises
its discretionary authority and applies its technical expertise in
approving the permit, legal mechanisms exist for individuals or groups
to challenge PADEP's approval, including appeal to Pennsylvania's
Environmental Hearings Board. We recognize the commenter may be
referring to a recent appeal of a PADEP permitting decision before
Pennsylvania's Environmental Hearings Board (Docket No. 2014-072-BP),
in which the groups argued any stream subsidence is pollution within
the meaning of the Clean Streams Law and that permit approval in such
circumstances is unlawful. While the amendment may dissuade these
groups from arguing in the future that subsidence is pollution, the
fact is the legislature simply agreed with PADEP's view (consistent
with long-standing practice) that properly planned subsidence is not
pollution within the meaning of the Clean Streams Law, and it enacted
Act 32 to make that point explicit. OSMRE has no reason or authority to
question the motives of the legislature or PADEP in submitting the
proposed amendment. OSMRE must assure that a proposed amendment is in
accordance with SMCRA and consistent with the relevant Federal
regulations. In the case of Act 32, we conclude that it is.
Comment 6: Commenters opposed the amendment and argue that Act 32
was a response to the litigation discussed in comment 4, that it was
intended to extinguish the arguments of the conservation organizations,
and that the Pennsylvania legislature enacted Act 32 to ``weaken the
protections afforded to Pennsylvania streams and allow destruction of
public natural resources for private profit.''
OSMRE Response: We refer commenters to our response to comment 4,
in particular, our statement that it is our duty to assess the proposed
[[Page 1700]]
amendment to ensure that it is in accordance with SMCRA and consistent
with the Federal regulations, which Act 32 is.
Comment 7: Commenters opined that the provisions in Act 32 are not
in accordance with SMCRA and its implementing regulations because Act
32 does not adequately protect waters of the Commonwealth and their
existing and designated uses.
OSMRE Response: We disagree with commenters' conclusion that Act 32
does not adequately protect streams. For the reasons stated in our
response to comment 2, we believe it enhances stream protection over
the level required by SMCRA and the Federal regulations. Under the
proposed amendment, an operator seeking authorization for planned
subsidence must submit an application that ``provides for'' restoration
of the ``premining range of flows'' and restoration of ``premining
biological communities'' in waters predicted to be adversely affected
by subsidence, a provision that has no counterpart in the Federal
regulations. Pennsylvania's previously approved program remains in
effect, and Act 32 enhances that program, while codifying PADEP's long-
standing regulatory interpretation of what constitutes evidence of
presumptive pollution, which gives Act 32 a limited substantive effect.
If commenters are concerned that the existing Pennsylvania program is
inadequate, SMCRA provides other avenues for that challenge; however,
for this amendment, we are only looking at the changes made to the
Pennsylvania program by Act 32, which are in accordance with SMCRA and
consistent with the Federal regulations.
Comment 8: Commenters stated that Act 32 was enacted for the sole
benefit and private profit of the coal mining industry, and they
alleged that article III, section 32, of the Pennsylvania Constitution
prohibits such ``special laws.'' Another commenter reiterated this
concern and provided that ``special laws'' include laws granting
special privileges to a ``select industry,'' which does not serve to
promote the general welfare of the public.
OSMRE Response: OSMRE has no authority to review whether acts of
the Pennsylvania legislature violate the Pennsylvania Constitution. Our
review of proposed amendments to the Pennsylvania program is limited to
ensuring that such changes are in accordance with SMCRA and consistent
with the Federal regulations.
Comment 9: Commenters stated that Act 32 attempts to exempt
predicted impairment of streams from the Clean Streams Law and that
this contradicts Federal water quality standards required under the
Clean Water Act.
OSMRE Response: We disagree with this characterization of the
amendment. The Pennsylvania program, with the addition of Act 32,
requires operators to submit applications; these applications now must
include the supporting analysis and data that was contained in PADEP's
2005 Technical Guidance Document (TGD) and must ``provide for'' the
restoration of premining flows and premining biological communities.
The TGD set out PADEP's process for evaluating the sufficiency of
mitigation plans for mining operations predicting flow loss to ensure
that mitigation and restoration measures would restore protected uses.
Act 32 codifies this process into law and eliminates PADEP discretion
to deviate from its now-codified interpretation.
Act 32 also makes clear that planned subsidence, which meets
existing regulatory requirements (as well as the regulatory
requirements in Act 32), is not presumptive evidence of pollution.
However, technical staff at PADEP still must apply their expertise to
the applications and supporting data to make predictive judgments in
approving permits allowing planned subsidence to ensure the regulatory
requirements are met. They make this determination within the construct
of the approved Pennsylvania program, which includes various
regulations that we have found to be consistent with Federal standards
for protecting the hydrologic balance at coal mining sites. In
particular, the Pennsylvania program has been found to be consistent
with the Federal regulation at 30 CFR 817.42 (Water quality standards
and effluent limitations). Section 817.42 provides that water
discharges ``shall be made in compliance with all applicable State and
Federal water quality laws and regulations and with the effluent
limitations for coal mining promulgated by the [EPA] set forth in 40
CFR part 434,'' and this includes the Clean Water Act. Act 32 makes no
change to this part of the Pennsylvania program's regulatory scheme
pertaining to water quality and effluent limitations, except to the
extent it strengthens stream protection through the specific
requirements of section 5(j) of the Act (in particular, the requirement
that an application ``provide for'' restoration of premining flows and
premining biological communities). As these prior regulations in the
Pennsylvania program require water discharges be in compliance with the
Clean Water Act, we fail to see how Act 32 would contradict this
existing requirement.
Comment 10: Commenters stated that Act 32 creates an exception to
State water quality standards and antidegradation standards, where
operators predict subsidence-induced impairment to uses of overlying
streams. According to commenters, such revisions to state water quality
programs are not effective until approved by EPA under 40 CFR 123.62;
therefore, this requirement necessitates, at the very least, consulting
with EPA before making a decision approving the amendment.
OSMRE Response: As explained in the response to comment 9, Act 32
neither revises water quality standards or antidegradation standards
nor does it create any exceptions or exemptions. Further, OSMRE did
seek EPA comment, but EPA declined to comment.
Comment 11: Commenters opined that the amendment is incompatible
with PADEP's duties as a trustee of Pennsylvania's public natural
resources under article I, section 27 of the Pennsylvania Constitution,
which protects individual environmental rights of citizens (citing
Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013)).
OSMRE Response: OSMRE has no authority to review whether acts of
the Pennsylvania legislature violate the Pennsylvania Constitution. Our
review of proposed amendments to the Pennsylvania mining program is
limited to ensuring that the proposed amendments are in accordance with
SMCRA and consistent with the Federal regulations.
Comment 12: Commenter raised concerns that the amendment would
allow ``predicted adverse stream impacts . . . with no assurance that
those adverse effects will ever be corrected.''
OSMRE Response: The commenter misstates the relevant standard.
Under 30 CFR 817.41(a), mining activities must be conducted ``to
minimize disturbance of the hydrologic balance'' and to ``prevent
material damage to the hydrologic balance outside the permit area.'' As
discussed in the response to comment 3, some amount of damage is
permissible, provided it does not rise to the level of material damage.
Comment 13: Commenter stated that the amendment allows damage to
streams and employs ``Orwellian doublespeak to declare that such
damages are not a violation of the Pennsylvania Clean Streams Law.''
OSMRE Response: We refer the commenter to the responses in comments
3, and 12. SMCRA does not prohibit adverse impacts to streams; it
[[Page 1701]]
only prohibits those impacts that rise to the level of material damage
outside of the permit area. Act 32 does not change the standard by
which we review program amendments for consistency with the Federal
regulations.
Comment 14: Commenter stated that accurate predictions as to
whether undermined streams are likely to experience significant flow
loss still are not being made, indicating that at least six streams had
been irreparably damaged during the 2003-2008 period.
OSMRE Response: As discussed in response to the responses in
comments 3, ``perfect'' stream restoration is not required under
preexisting Pennsylvania and Federal law. SMCRA does not prohibit any
impacts to streams. OSMRE cannot disapprove an amendment unless it is
not in accordance with SMCRA or inconsistent with the Federal
regulations.
Comment 15: Commenters noted that PADEP must prepare assessments on
the effects of underground mining every five years and claimed that
those assessments ``consistently demonstrate'' that damages from
longwall mines have been increasing in numbers and severity over time
and that repair of damage to ``natural features particularly streams
cannot be assured.'' They cited a 2014 PADEP report that said the
ability to repair stream damage ``remains largely unknown.'' Similarly,
commenters stated that stream restoration ``still is in its infancy''
and does not have a ``documented record of success.'' Another commenter
cited a 2012 report indicating that current stream restoration
practices ``cannot be assumed to provide demonstrable physical,
chemical, or biological functional improvements'' and cited additional
studies, in 2002, 2003 and 2014 reaching similar conclusions.
OSMRE Response: As discussed in the response to comment 3,
``perfect'' stream restoration is not required under preexisting
Federal law or even under the Pennsylvania program (either before or
after the enactment of Act 32). SMCRA does not prohibit impacts so long
as those impact do not rise to the level of material damage outside the
permit area. OSMRE cannot disapprove an amendment unless it is not in
accordance with SMCRA or inconsistent with the Federal regulations.
Comment 16: Because predicting restoration is difficult and because
full restoration has a low chance of occurring, this commenter
suggested that OSMRE should disapprove the amendment.
OSMRE Response: The relevant standard for OSMRE to approve a
program amendment is whether the amendment is ``in accordance with''
SMCRA and ``consistent with'' the Federal regulations as those terms
are defined in 30 CFR 830.5. As we explain in the Findings and in the
response to comment 3, Act 32 meets these standards. The comment
appears to ignore the role of PADEP's expert technical staff who review
and approve applications under the requirements of Pennsylvania's
approved program. As discussed in the response to comment 4, if an
application predicts no permanent damage but the operational plans or
supporting data (considered in light of site geology and hydrology)
fail to support that prediction, PADEP would be obligated to disapprove
the permit application.
Comment 17: Commenter stated that approval of this amendment would
be contrary to 30 CFR 817.41, which directs that underground mining be
conducted to minimize disturbance to the hydrologic balance within the
permit and adjacent areas, to prevent material damage to the hydrologic
balance outside the permit area, and to support approved postmining
land use(s).
OSMRE Response: We disagree. Approving Act 32 does not change the
standards for protecting the hydrologic balance in Pennsylvania's
approved program below what is required in 30 CFR 817.41 and the other
Federal regulations. As discussed in the response to comment 9 and
elsewhere, Act 32 codifies PADEP's prior regulatory interpretation of
what constitutes evidence of presumptive pollution and adds
requirements that strengthen stream protections. In particular, section
5(j) of Act 32 requires that permit applications specifically ``provide
for'' restoration of the premining range of flows and for restoration
of premining biological communities, which is a standard above that
found in the Federal regulations. Thus, the Pennsylvania program with
Act 32 is no less stringent than SMCRA and no less effective than the
Federal regulations with regard to the protection of the hydrologic
balance.
Comment 18: Commenter opined that approving the amendment would
violate three SMCRA regulations--(i) 30 CFR 783.10 (requiring that each
applicant provide an adequate description of the environmental
baseline), (ii) 30 CFR 784.14 (requiring baseline hydrologic
information); and (iii) 30 CFR 783.2 (requiring that applicants provide
a complete and accurate description of the environmental resources that
may be impacted or affected by proposed underground mining
activities)--because the amendment allows applicants to predict there
will be no permanent disruption of premining uses and predicting is
uncertain.
OSMRE Response: We disagree with the contention that Act 32
violates the cited provisions. As discussed above, Act 32 is more
stringent than SMCRA and no less effective than the Federal
regulations; Act 32 adds to the stream protections of SMCRA and makes
no changes to the portions of the Pennsylvania program that give effect
to the cited Federal regulations. In addition, the comment appears to
ignore the role of PADEP's expert technical staff who review and
approve each application under requirements of the approved
Pennsylvania program. As discussed in the response to comment 4, if an
application predicts no permanent damage but the PADEP expert technical
staff who review the operational plans or supporting data (considered
in light of site geology and hydrology) determine that the application
fails to support that prediction, PADEP would be obligated to
disapprove the application.
Comment 19: Commenter stated that PADEP compiled no evidence to
determine the reliability of such predictions, despite numerous
requests to gather such evidence, and imposed no consequences on
applicants who wrongly predicted no permanent damage.
OSMRE Response: We disagree. The commenter appears to ignore Act
32's narrow scope, which leaves the other provisions of the current
Pennsylvania program intact while codifying PADEP's long-standing
regulatory interpretation of what constitutes evidence of presumptive
pollution and adding safeguards that enhance stream protections. We
also note that the Pennsylvania program and Federal regulations include
numerous enforcement mechanisms, including penalties and cessation
orders, as discussed in the response to comment 3.
Comment 20: Commenter raised concerns that approving the amendment
would violate unspecified provisions of Subchapter J, 30 CFR part 800
(Bond and Insurance Requirements), by removing ``any assignment or
determination of liability'' and thereby negating any need for
performance bonds.
OSMRE Response: We believe the commenter is incorrect in suggesting
that Act 32 somehow negates the need for performance bonds.
Pennsylvania's bonding requirements in Subchapter F of Chapter 86,
Title 25, will still apply following approval. Act 32 neither addresses
bonding and nor amends
[[Page 1702]]
Pennsylvania's approved bonding scheme.
Comment 21: Commenter alleged that 30 CFR 732.15(c) prohibits state
program provisions that interfere with or preclude implementation of
SMCRA.
OSMRE Response: Although the commenter failed to provide a reason
explaining how Act 32 purportedly interferes with or precludes
implementation of SMCRA, we have reviewed Act 32 and compared it to
SMCRA and the Federal regulations and disagree with the commenter's
allegation. As discussed in the Findings section and in the response to
comment 4, OSMRE must assure that a proposed amendment is in accordance
with SMCRA and consistent with the Federal regulations. In the case of
Act 32, after our review, we conclude that it meets that standard.
Comment 22: Commenter claimed that the amendment violates section
303 of the Clean Water Act and EPA's antidegradation regulations, which
mandate that when the regulatory authority approves coal mining permits
or approvals, it must ensure that the existing and designated uses of
surface waters are maintained and protected.
OSMRE Response: Section 303 of the Clean Water Act sets forth an
``anti-degradation policy,'' which requires that state standards be
sufficient to maintain existing beneficial uses of navigable waters,
preventing their further degradation. See 33 U.S.C. 1313(d)(4)(B).
Pennsylvania's Clean Water Act program has met these requirements, and
SMCRA provides that nothing in it can ``be construed as superseding,
amending, modifying or repealing'' the Clean Water Act. See 30 U.S.C.
1292(a)(3). Act 32 does not change the fact that Pennsylvania must
comply with the remainder of its SMCRA regulatory program and with all
applicable portions of the Clean Water Act, including the anti-
degradation policy. Rather, Act 32 leaves the rest of the current
Pennsylvania SMCRA regulatory program as well as the Clean Water Act
requirements intact. Act 32 simply codifies PADEP's long-standing
regulatory interpretation of what constitutes evidence of presumptive
pollution and adds safeguards that enhance stream protections.
Moreover, as noted above we sought comments from EPA, which regulates
the Clean Water Act, but EPA did not provide any comments.
Comment 23: Commenter suggested that the amendment will lead to the
wholesale destruction of streams in coalfields where longwall mining
occurs. According to the commenter, mine operators will no longer need
to make even a pretense of trying to avoid or minimize damage to
streams.
OSMRE Response: As stated above, we conclude that Act 32 enhances
and clarifies the existing Pennsylvania regulatory program. Section
516(b)(9) of SMCRA directs that permits require operators to minimize
disturbances to the ``prevailing hydrologic balance'' and to the
``quantity of water in surface ground water systems both during and
after coal mining operations and during reclamation.'' See 30 U.S.C.
1266(b)(9). Pennsylvania's approach is more rigorous than that
standard. As discussed in response to comment 2, Act 32 operates in
conjunction with the existing regulatory scheme and expressly requires
that permit applications ``provide for'' restoration of premining range
of flows and restoration of premining biological communities. There is
no comparable requirement in SMCRA that requires those restoration
metrics. Act 32 imposes on operators the additional duty of
demonstrating the absence of ``presumptive evidence of potential
pollution,'' something also not required by SMCRA or its implementing
regulations. Given the protections in the Pennsylvania program, which
is in accordance with SMCRA and consistent with the Federal
regulations, we disagree with this commenter's allegations.
Comment 24: Commenter asserted that changes in baseflow of a stream
can have ``marked effects on the integrity of macroinvertebrate
communities in stream ecosystems.''
OSMRE Response: We agree that changes in baseflow can affect stream
biology, but that fact does not support disapproval of this amendment.
Planned subsidence is permissible under SMCRA and the approved
Pennsylvania program. Act 32 clarifies the Pennsylvania program in
regard to presumptive evidence of pollution and enhances the permitting
process by adding greater stream protections, including the restoration
of premining biological communities, as discussed in the response to
comments 2 and 23.
Comment 25: Commenter requested that the scope of ``biological
communities'' be more clearly defined and include invertebrate, algal,
and piscivorous species, among others.
OSMRE Response: While we understand the commenter's request, the
fact that Pennsylvania could have more clearly defined ``biological
communities'' does not make the amendment not in accordance with SMCRA
or inconsistent with the Federal regulations. If Pennsylvania later
determines that additional clarification of that term is necessary,
Pennsylvania could always propose another amendment to their program to
further define this term.
Comment 26: Commenter stated that the proposed changes do not
facilitate the goals of the Clean Streams Law because altered
streamflow regimes can adversely impact health of ecosystems, which
will not lead to their net improvement.
OSMRE Response: We agree that altered streamflow can adversely
impact stream ecosystems, but we note that ``net improvement'' is not a
requirement under the Clean Streams Law or SMCRA. Instead, the SMCRA
standard for approving a program amendment requires us to determine
whether the amendment is in accordance with SMCRA and consistent with
the Federal regulations as those terms are defined in 30 CFR 730.5. The
applicable Federal regulation is 30 CFR 817.41(a), which requires that
mining activities be conducted ``to minimize disturbance of the
hydrologic balance'' and to ``prevent material damage to the hydrologic
balance outside the permit area.'' SMCRA's standards do not require
``net improvement.'' As discussed in the response to comment 3, some
amount of damage is permissible so long as it does not rise above the
acceptable level of damage. If it does, remedies and enforcement
mechanisms for addressing damage exist under the Pennsylvania program
and Federal regulations.
Comment 27: Commenter raised concerns that Act 32 seeks to weaken
the protections afforded to streams and allows the destruction of
public natural resources for private profit.
OSMRE Response: We disagree and believe that Act 32 enhances the
Pennsylvania program, as discussed in the responses in comments 2 and
23.
Comment 28: Commenter asserted that Act 32 ``contradicts the
minimum statutory floors'' in Part 817 of SMCRA, referring specifically
to 30 CFR 817.41(a), and contended that Act 32 violates the requirement
that mining activities be conducted ``to minimize disturbance of the
hydrologic balance'' and to ``prevent material damage to the hydrologic
balance outside the permit area.''
OSMRE Response: As noted in our response to comment 26, we do not
agree that Act 32 violates or contradicts 30 CFR 817.41(a). The current
Pennsylvania program meets the standard of section 817.41, and, as
explained further in the responses to comments 2 and 23, the addition
of Act 32 serves to clarify and enhance the existing program.
[[Page 1703]]
Comment 29: Commenter stated that Act 32 uses ``dangerously vague
language,'' by not defining ``permanent,'' as used in sec. 5(i), which
provides that applications for planned subsidence cannot be approved if
they predict ``permanent disruption of premining existing or designated
uses of surface waters . . . .''
OSMRE Response: Courts read terms in a statute or regulation that
are not defined according to their plain meaning, a rule we observe in
this instance. The absence of a definition for ``permanent'' in Act 32
does not demand disapproval of the amendment.
Comment 30: Commenter stated that healthy ephemeral streams could
be predicted to change to intermittent streams which ``would then
essentially be gone'' and their ``aquatic life largely wiped out for
[up to decades] before any restoration to premining flow occurs.''
OSMRE Response: While we recognize this possibility exists, we note
that the approved Pennsylvania program includes numerous regulatory
requirements serving as safeguards to assist in avoiding such outcomes,
as discussed in the response to comment 6. As discussed in the response
to comments 2 and 23, Act 32, with the new requirements related to
restoration of premining range of flows and biological communities
should actually enhance stream protections over the minimum standards
contained in SMCRA and makes the outcomes described by the commenter
less likely. Under the approved Pennsylvania program, technical staff
at PADEP will apply their expertise to the applications and supporting
data to make predictive judgments in approving planned subsidence. Act
32 does not change this requirement, except to the extent it enhances
stream protection, as discussed throughout these comment responses.
Comment 31: Commenter states successful restoration is
``extraordinarily difficult'' to predict and argues Act 32 should not
be approved because it ``banks heavily on the viability of successful
stream restoration techniques,'' adding that ``banking on modern day
methodology to prevent future harms can and does fail.''
OSMRE Response: We refer the commenter to the responses to comments
16 and 23.
Comment 32: Commenter suggested that Act 32 was intended to
``affirm the PADEP interpretation of the Clean Streams Law allowing
temporary material damage to water resources from `planned subsidence'
provided that a plan was submitted to restore the damaged resource.''
Commenter also stated that Act 32 seeks to ``legislatively resolve the
question left open in'' UMCO Energy v. Department of Environmental
Protection, 938 A.2d 530 (2007).
OSMRE Response: We refer commenters to the response to comment 5,
including the statement that it is the duty of PADEP and OSMRE to
faithfully execute the law and that OSMRE has no reason or authority to
question the legislature's motives. It is our duty is to assess the
proposed amendment under the SMCRA standard discussed in the response
to comment 3.
Comment 33: Commenter stated that Act 32 ``eliminates the
presumption that planned subsidence . . . has the potential to cause
pollution, provided that the permit application contains a plan to
restore [premining flows and biological communities].''
OSMRE Response: This comment mischaracterizes the effect of section
5(j) of Act 32. Even prior to the enactment of Act 32, under the
approved Pennsylvania program, there was no blanket presumption that
planned subsidence has the potential to cause pollution; thus, the
enactment of Act 32 could not cause such presumption to be eliminated.
We recognize, however, that Act 32 does add language to section 5 of
the Bituminous Mine Subsidence and Land Conversation Act, which
specifies that planned subsidence meeting regulatory requirements is
not a circumstance where a finding of presumptive evidence of potential
pollution under the Clean Streams Law is warranted.
Comment 34: Commenter alleged that Act 32 ignores ``temporal
losses'' of a stream's ``function, use, and values'' and ``sanctions
temporary impacts on [water resources] in a fashion repugnant to
SMCRA.''
OSMRE Response: Nothing in SMCRA would prohibit temporal losses;
SMCRA requires restoration after subsidence, which necessarily means
that temporal losses are expected under SMCRA between the time of
impact and restoration. As discussed in the response to comment 3, some
degree of disturbance is allowable under SMCRA; Act 32 does not go
beyond what is allowable.
Comment 35: Commenter stated that Act 32 is arbitrary, capricious,
and inconsistent with law as a matter of law and as a matter of fact
and because it excludes temporary damage from ``pollution.''
OSMRE Response: We disagree. As stated in responses other comments
and our findings, the amendments made to the Pennsylvania program by
Act 32 are in accordance with SMCRA and consistent with the Federal
regulations.
Comment 36: Commenter extensively summarized the law (including
prior OSMRE rulemakings on protection of the hydrologic balance and
prevention of material damage) and asserts that the Pennsylvania
legislature ``cannot linguistically redefine `pollution' in a manner
that effectively redefines `material damage' . . . to mean only
permanent or irreparable material damage.''
OSMRE Response: As stated elsewhere in this preamble, we do not
believe Act 32 lowers the standard of ``material damage'' below the
standard set forth in SMCRA. As stated in the response to comment 2,
even before the enactment of Act 32, planned subsidence was permissible
under the Pennsylvania program and PADEP's long-standing practice. This
practice was supported by PADEP's view that planned subsidence, in and
of itself, does not constitute presumptive evidence of pollution under
the Clean Streams Law. While we recognize that some commenters may have
a different interpretation, Act 32 codifies the interpretation that had
previously been used by PADEP, which clarifies the operative standard
for operators, regulators, and the public.
Comment 37: Commenter contended that neither the factual record nor
the law supports approval of a state program amendment allowing PADEP
the authority to approve planned subsidence ``without an affirmative
demonstration by the permit applicant and a finding by the agency''
that the operation is designed to `` `prevent material damage to the
hydrologic balance outside the permit area' inclusive of both permanent
and temporary interference with the designated and actual uses of the
waterbody due to subsidence.''
OSMRE Response: Act 32 did not change the requirement of the
approved Pennsylvania program at 25 Pa. Code Sec. 86.37(a) that
mandates that an application cannot be approved unless the application
``affirmatively demonstrates and [PADEP] finds, in writing, on the
basis of the information in the application or from information
otherwise available,'' that the ``activities proposed under the
application have been designed to prevent material damage to the
hydrologic balance outside the proposed permit area.'' In addition,
under section 5(j) of Act 32, operators are required to make an
affirmative demonstration sufficient for PADEP to conclude that the
application adequately ``provide[s] for'' restoration of premining
flows and premining
[[Page 1704]]
biological communities. Thus, PADEP still must make the findings
required by SMCRA related to material damage caused by underground
mining.
Comment 38: Commenter raised concerns that the amendment creates an
exemption to an 80-year-old law that protects streams and water
supplies and will allow mining companies to predictably damage or
pollute streams based on a promise to clean them up later.
OSMRE Response: We disagree with the commenter's characterization
of the amendment. As explained in the response to comment 7, Act 32
codifies PADEP's prior interpretation of what constitutes evidence of
presumptive pollution and adds requirements that strengthen stream
protection. To describe Act 32 as creating an exemption to
Pennsylvania's Clean Streams Law would ignore PADEP's long-standing
practice and regulatory interpretation that law's application to
underground mining with planned subsidence.
Comment 39: Commenter noted that PADEP identified six streams in
December 2012 as having been irreparably damaged after being dewatered,
and, restoration of those streams were unsuccessful after five years.
OSMRE Response: While stream damage, such as the commenter has
described, has occurred in the past, neither that fact nor the fact
that PADEP has overseen many successful restorations is the standard by
which we evaluate a proposed state program amendment. The Pennsylvania
program, as amended by Act 32 and in accordance with SMCRA and
consistent with the Federal regulations, does not require perfect
restoration. Some amount of damage is permissible under these
authorities, provided it does not rise to the level of material damage.
If it does rise to the level of material damage, in accordance with
SMCRA and consistent with the Federal regulations, the Pennsylvania
program contains remedies and enforcement mechanisms to allow PADEP to
address such a violation.
Comment 40: Commenter requested an extension of the comment period,
because of the ``horrendous damage this change would allow to
Pennsylvania streams.''
OSMRE Response: As indicated in section II, OSMRE extended the
comment period April 11, 2018, to June 15, 2018. We disagree with
commenter's allegation regarding the consequences of this amendment. As
discussed in the Findings and in responses to comments 2 and 3, by
imposing on operators a duty of affirmatively demonstrating the absence
of any ``presumptive evidence of potential pollution,'' even while
excepting planned subsidence from the demonstration, the proposed
amendment promotes the core objective of subsection 516(b)(9) of SMCRA.
Comment 41: Commenter claimed that changes in baseflow can have
``marked effects on the integrity of macroinvertebrate communities in
stream ecosystems.''
OSMRE Response: We agree that changes in baseflow can affect stream
biology, but this fact is not a reason for disapproval. Planned
subsidence is permissible under SMCRA and the approved State program.
Act 32 clarifies the Pennsylvania program with regard to presumptive
evidence of pollution and enhances the permitting process by adding
greater stream protections, as discussed in the response to comments 2,
and 23
Comment 42: Commenter stated that the scope of ``biological
communities'' should be more clearly defined and should include
invertebrate, algal, and piscivorous species, among others.
OSMRE Response: While we understand why the commenter suggested
that a definition of ``biological communities'' be included, such a
definition is not necessary for us to consider and approve this
amendment. As written the proposed amendment is in accordance with
SMCRA and consistent with the Federal regulations, as discussed in the
response to comments 2 and 23.
At a public hearing in Green Tree, PA, OSMRE heard from three
individuals opposed to the amendment. The comments in opposition to the
proposed amendment raised concerns similar to those set out above and
are addressed by these responses. At the same public hearing, OSMRE
heard statements from four individuals in favor of the proposed
amendment, who indicated, among other things, that Act 32 reaffirms the
permitting protocols already employed under the Pennsylvania program
and does not lessen existing standards; long wall mining is consistent
with section 516 of SMCRA, which has been construed as allowing use of
longwall mining methods; and some amount of stream damage is
permissible so long as it does not rise to the level of material
damage. We generally agree with these statements, and we appreciate all
parties' participation in the process.
Federal Agency Comments
On February 21, 2019, pursuant to 30 CFR 732.17(h)(11)(i) and
section 503(b) of SMCRA (30 U.S.C. 1253(b)), we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Pennsylvania program (Administrative Record No. PA-
899). We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
None of the revisions that Pennsylvania proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment. However, on August 7, 2017,
under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on
the amendment (Administrative Record No. PA-899.00). The EPA responded
(Administrative Records No. PA-899.003) via letter dated October 31,
2017, that they have reviewed the proposed amendment and would not be
providing comments.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On August 7, 2017, we requested comments on the amendment
(Administrative Record No. PA-899). We did not receive any comments.
V. OSMRE's Decision
Based on the above findings, we are approving the Pennsylvania
amendment that was submitted on August 4, 2017 (Administrative Record
No. PA-899.00). 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 (5 U.S.C. 553), 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
Constitutionality Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in
[[Page 1705]]
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 Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866, provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993 (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 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 State regulatory
program or to the program amendment that the Commonwealth of
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
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
Government
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 Tribal
self-governance and 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 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 will 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 an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information
[[Page 1706]]
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 H. Owens,
Acting Regional Director, North Atlantic--Appalachian Region.
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. Amend Sec. 938.15 in the table by adding an entry in chronological
order by ``Date of Final Publication'' for ``August 4, 2017'' to read
as follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
August 4, 2017................ January 15, 2026. Addition of
subsections (i) and
(j) to Section 5 of
BMSLCA (52 P.S. Sec.
1406.5(i) and
(j)); amendment of
Section 9a(d) of
BMSLCA (52 P.S. Sec.
1406.9a(d)).
------------------------------------------------------------------------
[FR Doc. 2026-00701 Filed 1-14-26; 8:45 am]
BILLING CODE 4310-05-P
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