[Federal Register Volume 84, Number 84 (Wednesday, May 1, 2019)]
[Proposed Rules]
[Pages 18435-18437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08867]



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DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-170-FOR; Docket ID: OSM-2018-0007 S1D1S SS08011000 SX064A000 
190S180110; S2D2S SS08011000 SX064A000 19XS501520]


Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSMRE), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on a request to remove a required amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of a request to remove a required 
amendment to the Pennsylvania regulatory program, hereinafter the 
Pennsylvania program, under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA or the Act). Pennsylvania provided a rationale it 
believes supports its position that an amendment we required related to 
the timing of the reclamation of temporary storm water control 
facilities (siltation structures) should be removed. This document 
gives the times and locations that the Pennsylvania program and this 
request are available for your inspection, the comment period during 
which you may submit written comments, and the procedures that we will 
follow for the public hearing, if one is requested.

DATES: We will accept written comments on this request until 4:00 p.m., 
Eastern Standard Time (e.s.t.), May 31, 2019. If requested, we will 
hold a public hearing on the request on May 28, 2019. We will accept 
requests to speak at a hearing until 4:00 p.m., e.s.t. on May 16, 2019.

ADDRESSES: You may submit comments, identified by SATS No. PA-170-FOR, 
Docket ID: OSM-2018-0007, by any of the following methods:
     Mail/Hand Delivery: Mr. Ben Owens, Chief, Pittsburgh Field 
Division Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, Pa 15220.
     Fax: (412) 937-2177.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the 
Pennsylvania program, this request, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the request by contacting OSMRE's Pittsburgh 
Field Division or the full text of the request is available for you to 
read at www.regulations.gov.
    Ms. Ben Owens, Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, Pa 
15220, Telephone: (412) 937-2827, Email: [email protected].
    In addition, you may review a copy of the request during regular 
business hours at the following location: Mr. William S. Allen Jr., 
Director, Bureau of Mining Programs, Pennsylvania Department of 
Environmental Protection, Rachel Carson State Office Building, 400 
Market St., Harrisburg, Pa 17105-8461, Telephone: (717) 787-5103, 
Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Chief, Pittsburgh Field 
Division, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, Pa 15220, Telephone: (412) 937-2827, Email: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Request
III. Public Comment Procedures
IV. Procedural Determinations

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 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 effective July 31, 1982. You can find additional background 
information on the Pennsylvania program, including the Secretary's 
findings, the disposition of comments, and conditions of approval in 
the July 30, 1982, Federal Register, (47 FR 33050). You can also find 
later actions concerning Pennsylvania's program and program amendments 
at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

II. Description of the Request

    By letter dated August 9, 2018, Pennsylvania sent us rationale it 
believes supports its request that a program amendment OSMRE required 
on November 7, 1997, at 30 CFR 938.16(rrr), which involves hydrologic 
balance protections and siltation structures, be removed 
(Administrative Record No. PA 903.00). See 62 FR 60172. The Federal 
regulations at 30 CFR parts 816 and 817 (Permanent Program Performance 
Standards for surface mining and underground mining respectively) 
include requirements for protection of the hydrologic balance within 
the permit and adjacent areas and to prevent material damage to the 
hydrologic balance outside the permit area during mining and 
reclamation activities. The standards address ground-water quality and 
surface water protections and include the requirement that additional 
contributions of suspended solids sediment to streamflow or runoff 
outside the permit area be prevented to the extent possible. One of the 
mechanisms used to address this requirement is the construction of 
siltation structures, which include sedimentation ponds. These ponds 
are designed, constructed and maintained to provide adequate sediment 
storage volume and adequate detention time to allow the effluent from 
the ponds to meet State and Federal effluent limitations.
    In 1996, through a program amendment request, Pennsylvania proposed 
requiring that sedimentation ponds be maintained until the disturbed 
area is stabilized and revegetated and removal is approved by the 
Department of Environmental Protection (herein referred to as the 
``Department''). The regulation also added that ponds may not be 
removed sooner than two years after the last augmented seeding, unless 
the Department finds that the disturbed area has been sufficiently 
revegetated and stabilized. The regulations at 30 CFR 816.46(b)(5), 
Hydrologic balance: Siltation structures, general requirements 
(applicable to surface mining) and 817.46(b)(5), (applicable to 
underground mining), specifically prohibit the removal of siltation 
structures (e.g., sedimentation ponds) sooner than two years after the 
last augmented seeding. Therefore OSMRE imposed a requirement at 
938.16(rrr)

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that Pennsylvania submit a program amendment to 25 Pennsylvania Code 
(Pa Code) subsections 87.108(c), Hydrologic balance: sedimentation 
ponds (applicable to surface coal mining), 89.24(c), Performance 
Standards: Sedimentation ponds (applicable to underground coal mining), 
and 90.108(c), Hydrologic balance: sedimentation ponds (applicable to 
coal refuse disposal sites), or otherwise amend its program to require, 
without exception, that sedimentation ponds not be removed sooner than 
two years after the last augmented seeding.
    Pennsylvania states that it included language requiring the two-
year limitation in 1995 when it submitted the regulation to the 
Pennsylvania Environmental Quality Board (EQB) for review and approval, 
but the EQB revised the proposed regulation and added an exception to 
allow removal of the siltation structures sooner than the two-year time 
frame. The EQB provided an exception to the two-year limitation and 
allowed removal when the Department determines that the reclaimed area 
has been sufficiently revegetated and stabilized. Pennsylvania states 
the basis for the EQB allowing a lesser period of time was that a 
properly managed site will normally be revegetated and stabilized 
within one year and as few as eight months when ideal conditions exist.
    With this request, Pennsylvania provides rationale it contends 
supports its position that the required amendment be removed. 
Pennsylvania presents the following four reasons why the required 
amendment should be removed.
    1. The Federal regulations and Pennsylvania regulations require the 
approval by the regulatory authority before siltation structures can be 
removed. Pennsylvania reasons that its regulations at Sec. Sec.  
87.108(c), 89.24(c), and 90.108(c) require the regulatory authority to 
approve the removal of the ponds as required by Federal regulation.
    2. Pennsylvania's approved program requires the use of the Best 
Technology Currently Available (BTCA) to prevent erosion and 
sedimentation and that vegetation can serve as BTCA. Pennsylvania 
refers to the Federal regulation at Sec.  816.46(b)(1), which requires 
additional contributions of suspended sediment to streamflow or runoff 
outside the permit area be prevented to the extent possible using the 
BTCA. Pennsylvania points out that the Federal requirement at 
816.46(b)(2) that existed in 1986 required all surface drainage from 
the disturbed area be passed through a siltation structure before 
leaving the permit area, but the regulation was suspended on December 
22, 1986, due to a 1985 court order. See the November 20, 1986, Federal 
Register (51 FR 41952, 51957). The regulation was suspended due to 
litigation that resulted in the determination that the preamble to the 
regulations failed to provide a sufficient rationale for requiring 
siltation structures in every instance. In re Permanent Surface Mining 
Reclamation Litigation, 620 F. Supp. 1519, 1568 (1985). Pennsylvania 
states the result of the suspension is that the regulation at 
816.46(b)(1) is now the governing regulation. Pennsylvania asserts the 
regulation only requires the use of BTCA, when possible, and that 
vegetation serves as the BTCA where successful vegetation has served to 
meet the sedimentation control requirements. The vegetation is intended 
to assure drainage meets effluent limits and does not contribute 
suspended solids to the streamflow.
    Regarding surface mines and coal refuse disposal facilities, 
Pennsylvania states its approved program at Sec. Sec.  87.108(i) and 
90.108(j), respectively, requires the implementation of BTCA upon 
reclamation of the sedimentation ponds, which is consistent with Sec.  
816.46(b)(1). Pennsylvania points to the regulations at these sections, 
which provide when a sedimentation pond is to be removed, the affected 
land shall be regraded and revegetated in accordance with Sec. Sec.  
87.147 and 90.151, Revegetation: general requirements, (applicable to 
surface mining and coal refuse disposal sites respectively). 
Pennsylvania specifically references subsections (c) and (d) of 
Sec. Sec.  87.147 and 90.151, which require that revegetation provide a 
quick germinating, fast-growing, vegetative cover capable of 
stabilizing the soil surface from erosion; be completed in compliance 
with the reclamation plan as approved by Pennsylvania in the permit; 
and be carried out in a manner that encourages a prompt vegetative 
cover and recovery of productivity levels compatible with the approved 
postmining land use.
    Regarding underground mining, Pennsylvania refers to the general 
revegetation requirements in Sec.  89.86, Performance Standards: 
Revegetation which provide for implementation of BTCA for the 
reclamation of stormwater controls. It notes that this section is 
applicable to all reclamation, including the reclamation of stormwater 
controls. Pennsylvania also notes the specific requirements in 
subsections (c) and (d), which address seeding, planting, mulching, and 
other soil stabilizing practices.
    Pennsylvania asserts at least two states (Ohio and Montana) have 
amended their programs and received OSMRE approval to allow removal of 
sedimentation ponds sooner than two years after last augmented seeding 
if replaced by BTCA and, in these cases, the BTCA includes sediment 
control measures, in the form of vegetation. See the November 15, 1994, 
Federal Register (59 FR 58778) and the May 11, 1990, Federal Register 
(55 FR 19727), respectively.
    3. Based on Pennsylvania's experience, revegetation is often 
established in less than two years. Further, Pennsylvania adds that 
because siltation structures pose reclamation liability, and in some 
cases a potential public safety hazard, they should be removed as soon 
as they are no longer necessary, which is often less than two years.
    4. There is no statutory prohibition to Pennsylvania's approach.
    In conclusion, Pennsylvania asserts that its program is no less 
effective than the Federal program for all the reasons mentioned above 
and requests the required amendment be removed.
    The full text of the justification to remove the required amendment 
is available for you to read at the locations listed above under 
ADDRESSES or at www.regulations.gov.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the justification is sufficient to remove the 
required amendment at 30 CFR 938.16(rrr). If we approve the request, we 
will remove the provision at 938.16(rrr).

Electronic or Written Comments

    If you submit written or electronic comments on the request during 
the 30-day comment period, they should be specific, confined to issues 
pertinent to the request, and explain the reason for any recommended 
change(s). We appreciate any and all comments, but those most useful 
and likely to influence our decision will be those that either involve 
personal experience or include citations to and analyses of SMCRA, its 
legislative history, its implementing regulations, case law, other 
pertinent State or Federal laws or regulations, technical literature, 
or other relevant publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

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Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on 
May 16, 2019. If you are disabled and need reasonable accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak, and others present 
in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    Pursuant to Office of Management and Budget (OMB) Guidance dated 
October 12, 1993, the approval of State program amendments is exempted 
from OMB review under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
will conclude our review of the request for removal of the required 
amendment after the close of the public comment period and determine 
whether the amendment should be removed.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Editorial Note: This document was received for publication by 
the Office of the Federal Register on April 26, 2019.


    Dated: October 5, 2018.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2019-08867 Filed 4-30-19; 8:45 am]
 BILLING CODE 4310-05-P