[Federal Register Volume 74, Number 126 (Thursday, July 2, 2009)]
[Proposed Rules]
[Pages 31647-31649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15542]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 806 and 808


Review and Approval of Projects

AGENCY: Susquehanna River Basin Commission (SRBC).

ACTION: Notice of proposed rulemaking and public hearing.

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SUMMARY: This document contains proposed rules that would amend project 
review regulations to include provisions specifically requiring 
Commission approval of projects undergoing Federal Energy Regulatory 
Commission (FERC) and Nuclear Regulatory Commission (NRC) licensing 
actions that affect the basin's water resources; restricting the use of 
docket reopening petitions to avoid abuses of process; amending the 
``Approval by Rule'' (ABR) process to standardize ABR notice procedures 
and allow for project sponsors to utilize approved water sources at 
approved drilling pad sites without the need for modification of the 
ABR; clarifying that the public hearing requirement for rulemaking 
shall be applicable to the proposed rulemaking stage of that process; 
and further providing for the time period within which administrative 
appeals must be filed.

DATES: Comments on these proposed rules may be submitted to the SRBC on 
or before August 15, 2009. The Commission has scheduled two public 
hearings on the proposed rules, to be held August 4, 2009, in 
Harrisburg, Pennsylvania, and August 5, 2009, in Elmira, New York. The 
locations of the public hearings are listed in the addresses section of 
this document. Additionally, individuals wishing to testify are asked 
to notify the Commission in advance, if possible, at the regular or 
electronic addresses given below.

ADDRESSES: Comments may be mailed to: Mr. Richard A. Cairo, Susquehanna 
River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-
2391, or by e-mail to [email protected].
    The public hearings will be held on Tuesday, August 4, 2009, at 10 
a.m., at the Rachel Carson State Office Building, 400 Market Street, 
Harrisburg, PA 17101, and Wednesday, August 5, 2009, at 7 p.m., at the 
Holiday Inn--Elmira Riverview, 760 E. Water Street, Elmira, New York 
14901. Those wishing to testify are asked to notify the Commission in 
advance, if possible, at the regular or electronic addresses given 
below.

FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel, 
telephone: 717-238-0423, ext. 306; fax: 717-238-2436; e-mail: 
[email protected]. Also, for further information on the proposed 
rulemaking, visit the Commission's Web site at http://www.srbc.net.

SUPPLEMENTARY INFORMATION: 

Background and Purpose of Amendments

    The SRBC adopted final rulemaking on December 5, 2006, published at 
71 FR 78570, December 29, 2006, establishing: (1) The scope and 
procedures for review and approval of projects under Section 3.10 of 
the Susquehanna River Basin Compact, Public Law 91-575; 83 Stat. 1509 
et seq. (the compact); (2) special standards under Section 3.4 (2) of 
the compact governing water withdrawals, consumptive use of water; 
diversions of the basin's waters, water conservation, and water use 
registration; and (3) procedures for hearings, administrative appeals, 
and enforcement actions.
    18 CFR 806.4(a) contains broad authority for the review and 
approval of water resources projects by the Commission, including 
projects on or crossing the boundary between two member States, 
projects in a member State having a significant effect on the water 
resources in another member State, and projects affecting the SRBC 
comprehensive plan. Nevertheless, there is no express provision in 
Sec.  806.4 specifically requiring that projects affecting the water 
resources of the basin and undergoing licensing actions by the FERC or 
the NRC be approved by the Commission, although that is its current 
practice. To remove any uncertainty regarding the need for approval of 
such projects, the Commission proposes to insert language covering 
certain projects involved in FERC and NRC licensing procedures.
    18 CFR 806.22(f), which was adopted by the Commission as a final 
rule on December 4, 2008, and published in the Federal Register on 
December 23, 2008, at p. 78618, provides an ``Approval by Rule'' (ABR) 
procedure for consumptive use related to natural gas well development 
that is separate from the pre-existing ABR process for projects 
supplied by public water systems, which is contained in 18 CFR 
806.22(e). The Commission proposes to modify the public notice 
provisions related to both ABR provisions to make them consistent, and 
simplify the administration of the natural gas ABR procedure to allow 
project sponsors to utilize all approved sources at any approved 
drilling pad site without the need to register its own water source 
approvals or the need to modify each ABR issued for subsequently issued 
approvals. It also would allow for registration of other approved 
sources to allow for use at the project sponsor's approved drilling pad 
sites.
    18 CFR 806.32 allows for the reopening of a project approval upon

[[Page 31648]]

the motion of the Commission, or upon application of the project 
sponsor or any interested party for the purpose of making additional 
orders that may be necessary to mitigate or avoid adverse impacts or 
otherwise protect the public health, safety, and welfare or water 
resources. In two recent cases, interested parties whose Sec.  808.2 
administrative appeals were denied, then attempted to use Sec.  806.32 
to obtain administrative review of the same matter. The Commission 
believes that one administrative proceeding seeking relief on a 
particular issue is sufficient. Therefore the Commission proposes to 
amend Sec.  806.32 to limit the filing of a petition to reopen where 
the matter has already been considered by the Commission in an 
administrative appeal proceeding under Sec.  808.2.
    18 CFR 808.1 sets forth the public hearing requirements for various 
commission actions, including rulemaking. It is the practice of the 
Commission to meet this public hearing requirement at the proposed 
rulemaking stage. However, the current regulation does not make this 
intent clear, referring only to ``rulemaking.'' To clarify the rule and 
make it consistent with the Commission's current practice, new language 
is added to Sec.  808.1(a)(2) and 808.1(c).
    Finally, 18 CFR 808.2 9(a) specifies that an administrative appeal 
shall be filed within 30 days of the action or decision of the 
Commission or Executive Director. In the case of appeals of project 
approvals, however, the Commission believes that due process safeguards 
require that the appeal period run from the time constructive notice of 
the action is given by the Commission for aggrieved persons other than 
the project sponsor. Therefore, the Commission proposes to amend this 
provision to allow an appeal period of 30 days from the date a notice 
of a project approval appears in the Federal Register. For project 
sponsors, the 30 day appeal period would run from the date of receipt 
of actual notice.

List of Subjects in 18 CFR Parts 806 and 808

    Administrative practice and procedure, Water resources.

    Accordingly, for the reasons set forth in the preamble, the 
Susquehanna River Basin Commission proposes to amend 18 CFR Parts 806 
and 808 as follows:

PART 806--REVIEW AND APPROVAL OF PROJECTS

Subpart C--Standards for Review and Approval

    1. The authority citation for Part 806 continues to read as 
follows:

    Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.

    2. In Sec.  806.4, revise paragraphs (a)(7) and (a)(8) and add 
paragraph (a)(9) to read as follows:


Sec.  806.4  Projects requiring review and approval.

    (a) * * *
    (7) Any hydroelectric project regulated by the United States 
Federal Energy Regulatory Commission and initiating a licensing or 
license amendment process pursuant to 18 CFR Part 4 that may affect the 
water resources of the basin.
    (8) Any nuclear power project regulated by the United States 
Nuclear Regulatory Commission and initiating a licensing, renewal, 
license amendment or license uprate process pursuant to 10 CFR Part 55 
that may affect the water resources of the basin.
    (9) Any other project so determined by the Commissioners or 
Executive Director pursuant to Sec.  806.5 or 18 CFR part 801. Such 
project sponsors shall be notified in writing by the Executive 
Director.
* * * * *
    2. In Sec.  806.22, revise paragraphs (e)(1)(i)(B), 
(e)(1)(ii)(f)(2), (f)(3), (f)(11) and add paragraph (f)(12) to read as 
follows:


Sec.  806.22  Standards for consumptive use of water.

* * * * *
    (e) * * *
    (1) * * *
    (i) * * *
    (B) Send a copy of the NOI to the appropriate agencies of the 
member State, and to each municipality and county in which the project 
is located. The project sponsor shall submit a copy of the United 
States Postal Service return receipt, or other proof of service 
acceptable to the Commission, for such notifications within 10 days of 
submittal of the NOI.
    (ii) Within 10 days after submittal of an NOI under paragraph 
(e)(1)(i) of this section, the project sponsor shall submit to the 
Commission proof of publication in a newspaper of general circulation 
in the location of the project, a display ad notice of its intent to 
operate under an approval by rule, which contains a sufficient 
description of the project, its purpose, the proposed public water 
supply source(s), the requested consumptive use amount and its 
location. This notice shall also contain the address, electronic mail 
address and telephone number of the Commission. The Commission may 
further prescribe the form and manner of such notice.
* * * * *
    (f) * * *
    (2) Notification of Intent: Prior to undertaking a project or 
increasing a previously approved quantity of consumptive use, the 
project sponsor shall submit a Notice of Intent (NOI) on forms 
prescribed by the Commission, and the appropriate fee, along with any 
required attachments. The project sponsor shall send a copy of the NOI 
to the appropriate agencies of the member State, and to each 
municipality and county in which the project is located. The project 
sponsor shall submit a copy of the United States Postal Service return 
receipt, or other proof of service acceptable to the Commission, for 
such notifications within 10 days of submittal of the NOI.
    (3) Within 10 days after submittal of an NOI under paragraph (f)(2) 
of this section, the project sponsor shall submit to the Commission 
proof of publication in a newspaper of general circulation in the 
location of the project of a display ad notice of its intent to operate 
under an approval by rule, which contains a sufficient description of 
the project, its purpose, any new proposed water source(s), the 
requested consumptive use amount and its location. This notice shall 
also contain the address, electronic mail address and telephone number 
of the Commission. The Commission may further prescribe the form and 
manner of such notice.
* * * * *
    (11) A project sponsor issued an approval by rule pursuant to 
paragraph (f)(9) of this section may utilize any water source approved 
for use by the project sponsor for natural gas well development 
pursuant to Sec. Sec.  806.4 or this section, at the applicable 
drilling pad site subject to any approval or authorization required by 
the member State to utilize such source(s).
    (12) The following additional sources of water may be utilized by a 
project sponsor in conjunction with an approval by rule issued pursuant 
to paragraph (f)(9) of this section:
    (i) Water withdrawals or diversions approved by the Commission 
pursuant to Sec.  806.4(a) and issued to persons other than the project 
sponsor, provided any such source is approved for use in natural gas 
well development, the project sponsor has an agreement for its use, and 
at least 10 days prior to use, the

[[Page 31649]]

project sponsor registers such source with the Commission on a form and 
in a manner as prescribed by the Commission, and provides a copy of 
same to the appropriate agency of the member State.
    (ii) Sources of water other than those subject to paragraph 
(f)(12)(i) of this section, including, but not limited to, public water 
supply, wastewater discharge or other reclaimed waters, provided such 
sources are first approved by the Executive Director pursuant to this 
section. Any request to utilize such source(s) shall be submitted on a 
form and in a manner as prescribed by the Commission, and shall be 
subject to review pursuant to the standards set forth in subpart C of 
this part. Any approval issued hereunder shall be further subject to 
any approval or authorization required by the member State to utilize 
such source(s). The notice requirements related to agencies of member 
States, municipalities and counties contained in paragraph (f)(2) of 
this section, and the notice requirements contained in paragraph (f)(3) 
of this section, shall likewise be applicable to any request submitted 
hereunder.

Subpart D--Terms and Conditions of Approval

    3. In Sec.  806.32, revise paragraph (a) to read as follows:


Sec.  806.32  Reopening/modification.

    (a) Once a project is approved, the Commission, upon its own 
motion, or upon petition of the project sponsor or any interested 
party, may at any time reopen any project approval and make additional 
orders or otherwise modify or impose such additional conditions that 
may be necessary to mitigate or avoid adverse impacts or to otherwise 
protect the public health, safety, and welfare or water resources. 
Whenever a petition for reopening is filed by an interested party, the 
burden shall be upon that interested party to show, by a preponderance 
of the evidence, that a significant adverse impact or a threat to the 
public health, safety and welfare or water resources exists that 
warrants reopening of the docket. Notwithstanding the foregoing, any 
petition filed by a party who previously sought the same or similar 
relief identified in the petition pursuant to the administrative 
appeals process under Sec.  808.2 will not be eligible for 
consideration by the Commission absent new facts not known or readily 
discernable at the time of consideration of the petitioner's previous 
request for administrative appeal filed pursuant to Sec.  808.2.
* * * * *

PART 808--HEARINGS AND ENFORCEMENT ACTIONS

Subpart A--Conduct of Hearings

    4. The authority citation for Part 808 continues to read as 
follows:

    Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.

    5. In Sec.  808.1, revise paragraphs (a)(2) and (c) to read as 
follows:


Sec.  808.1  Public hearings.

    (a) * * *
    (2) Proposed rulemaking.
* * * * *
    (c) Notice of public hearing. At least 20 days before any public 
hearing required by the compact, notices stating the date, time, place 
and purpose of the hearing including issues of interest to the 
Commission shall be published at least once in a newspaper of general 
circulation in the area affected. Occasions when public hearings are 
required by the compact include, but are not limited to, amendments to 
the comprehensive plan, drought emergency declarations, and review and 
approval of diversions. In all other cases, at least 10 days prior to 
the hearing, notice shall be posted at the office of the Commission (or 
on the Commission Web site), mailed by first class mail to the parties 
who, to the Commission's knowledge, will participate in the hearing, 
and mailed by first class mail to persons, organizations and news media 
who have made requests to the Commission for notices of hearings or of 
a particular hearing. With regard to rulemaking, the Commission shall 
convene at least one public hearing on any proposed rulemaking it 
approves for public review and comment. For any such hearing(s), 
notices need only be forwarded to the directors of the New York 
Register, the Pennsylvania bulletin, the Maryland Register and the 
Federal Register, and it is sufficient that this notice appear only in 
the Federal Register at least 20 days prior to the hearing and in each 
individual State publication at least 10 days prior to any hearing 
scheduled in that State.
    6. In Sec.  808.2, revise paragraph (a) to read as follows:


Sec.  808.2  Administrative appeals.

    (a) A project sponsor or other person aggrieved by any action or 
decision of the Commission or Executive Director may file a written 
appeal requesting a hearing. Except with respect to project approvals 
or denials, such appeal shall be filed with the Commission within 30 
days of the action or decision. In the case of a project approval or 
denial, such appeal shall be filed by a project sponsor within 30 days 
of receipt of actual notice, and by all others within 30 days of 
publication of notice of the action taken on the project in the Federal 
Register.

    Dated: June 18, 2009.
Paul O. Swartz,
Executive Director.
[FR Doc. E9-15542 Filed 7-1-09; 8:45 am]
BILLING CODE 7040-01-P