[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Proposed Rules]
[Pages 33021-33025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10819]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-173-FOR; Docket ID: OSM-2021-0005; S1D1S SS08011000 
SX064A000 234S180110; S2D2S SS08011000 SX064A000 23XS501520]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (hereinafter, the Pennsylvania program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Through this submission, Pennsylvania addresses regulations 
regarding water replacement provisions that were disapproved by us in 
2005. This document gives the times and locations that the Pennsylvania 
program and this proposed amendment to that program are available for 
your inspection, the comment period during

[[Page 33022]]

which you may submit written comments on the amendment, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
Eastern Daylight Time (EDT), June 22, 2023. If requested, we may hold a 
public hearing or meeting on the amendment on June 20, 2023. We will 
accept requests to speak at a hearing until 4 p.m., EDT on June 7, 
2023.

ADDRESSES: You may submit comments, identified by SATS No. PA-173-FOR, 
by any of the following methods:
     Mail/Hand Delivery: Ben Owens, Acting Field Office 
Director, Pittsburgh Field Office, 3 Parkway Center South, 2nd Floor, 
Pittsburgh, PA, 15220.
     Fax: (412) 937-2827.
     Email: [email protected].
     Federal eRulemaking Portal: The amendment is assigned the 
Docket ID: OSM-2021-0005, If you would like to submit comments go to 
https://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 amendment, a listing of any scheduled public 
hearings or meetings, 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 amendment by contacting OSMRE's Pittsburgh 
Field Office or the full text of the program amendment is available for 
you to read at https://www.regulations.gov.

Ben Owens, Acting Field Office Director, Pittsburgh Field Office, 
Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center 
Drive South, 2nd Floor, Pittsburgh, PA 15220, Telephone: (412) 937-
2827, Email: [email protected]

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

Nathan A. Houtz, P.G., Director, Bureau of Mining Programs, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, P.O. Box 8461, Harrisburg, PA 17101-8461

FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Field Office 
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation 
and Enforcement, 3 Parkway Center Drive South, 2nd Floor, Pittsburgh, 
PA 15220 Telephone: (412) 937-2827. Email: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Statutory Orders and Executive 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). Based on 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. Description of the Proposed Amendment

    By letter dated August 5, 2021, (Administrative Record No. PA 
907.00), Pennsylvania sent us an amendment to its program under SMCRA 
(30 U.S.C. 1201 et seq.). This submission addresses several previously 
not approved items relating to inconsistencies between Pennsylvania's 
Surface Coal Mining Program (Program) and Federal regulatory 
requirements relating to water supply replacement as specified at 30 
CFR 938.12(c). On May 13, 2005, we published a final rule notice that 
disapproved five provisions submitted by Pennsylvania pertaining to 
their water replacement provisions (70 FR 25472). This submission 
proposes to address those disapprovals. Pennsylvania has submitted 
several proposed revisions to their water replacement provisions 
intended to ensure that their water replacement requirements are 
consistent with SMCRA.
    Pennsylvania determined that 25 Pa. Code sections 87. 119 and 
88.107 require extensive reorganization for clarity. Therefore, for 
ease of reference, Pennsylvania has reserved these section numbers in 
their entirety and adopted sections 87.119a and 88.107a respectively. 
Several minor editorial changes were made throughout. Substantive 
changes are summarized as follows:
    1. Section 4.2(f)(4) of PA SMCRA was not approved because it 
allowed for final bond release when there is an outstanding 
Pennsylvania Department of Environmental Protection (Department) water 
supply replacement order. See 30 CFR 938.12(c)(1). Sections 87.119(i) 
and 88.107(i) (relating to hydrologic balance: water rights and 
replacement) were not approved for the same reason of allowing for 
final bond release when there is an outstanding Department order. See 
30 CFR 938.12(c)(7). The program amendment proposes to eliminate the 
ability to release bond when a Department order issued under the water 
supply replacement section is under appeal.
    2. 25 Pa. Code Sections 87.1 and 88.1 (Relating to definitions) and 
25 Pa. Code Sections 87.119(a)(1)(v) and 88.107(a)(1)(v) (requiring 
that a restored or replaced water supply shall not result in more than 
a ``de minimis cost increase'' to operate and maintain) were also not 
approved in 2005. This is because it established a less stringent 
standard than is required by the Federal regulations. 30 CFR 
938.12(c)(4) and (5) require that no additional costs be passed along 
to the water supply owner. This amendment proposes to delete the term 
``de minimis cost increase'' and references thereto making it just as 
effective as the regulations. See 30 CFR 938.12(c)(4) and (5).
    3. 25 Pa. Code Sections 87.119(a) and 88.107(a) were not approved 
in 2005 because they did not include a requirement to provide temporary 
replacement water supply. Furthermore, they allowed for the replacement 
supply to be of a lesser quantity and quality than the pre-mining water 
supply. See 30 CFR 938.12(c)(5). The proposed revisions amend the 
Pennsylvania Surface Mining Regulations to render them consistent, 
where possible, with existing Underground Coal Mining Regulations, 
specifically 25 Pa. Code Chapter 89.145, which sets forth program 
provisions that define circumstances where a temporary replacement 
water supply is required and direct that the supplied temporary or 
permanent replacement water supply is not of a lower quantity or 
quality.

[[Page 33023]]

    4. 25 Pa. Code Section 87.119(a)(3) and 88.107(a)(3) were not 
approved because they allowed persons with an ownership interest in the 
water supply to waive the requirements to restore or replace the water 
supply. The program amendment proposes that the Department may waive 
the restoration or replacement water supply requirement, if is 
determined by the Department that the affected water supply is to be 
abandoned. All persons who possess an ownership interest in the water 
supply would be required to submit a notarized written statement of 
knowingly and willingly agreeing to said abandonment.
    5. Sections 87.119(g) and 88.107(g) were not approved because they 
allowed for operators to recover costs in the event that an operator 
successfully appeals a Department order to restore or replace water 
supply. OSMRE did not approve these regulations because section 
4.2(f)(5) of PASMCRA which provided statutory authority for the 
regulations was repealed in 2000. As a result, there was no statutory 
authority for these regulations. The program amendment proposes to 
allow an operator or mine owner to pursue recovery costs if they 
prevail in an appeal of a Department order to replace a water supply in 
accordance with 27 Pa.C.S. section 7708.

A. Proposed Revisions in Response To Disapprovals at 938.12(c)

    In its August 5, 2021 submission (Administrative Record No. PA 
907.00), the Department explained that the changes it was proposing to 
87.119 and 88.107 required extensive reorganization, and that, to 
facilitate this, the sections were replaced by the new sections 87.119a 
and 88.107a. Additional detail on these and other changes proposed in 
the Department's amendment are discussed below.
a. Definitions
    i. ``De minimis cost increase'' is proposed to be deleted as 
required by OSMRE.
    ii. ``Alternative water supply information'' proposes revision to 
sections 87.47 and 88.27 to specify that any affected ``water supply'' 
be identified and include water supplies replacement cost calculations 
be included in the permit application. Additionally, the Department 
will provide notice to water supply owners for said supplies.
    iii. ``Operation and maintenance costs'' is proposed to be included 
to ensure consistency with State law.
    iv. ``Water supply'' is proposed revised to specify that natural 
soil moisture is not a water supply.
    v. ``Water supply owner'' is proposed to be included and that the 
term be used throughout each provision to avoid repetition of using 
both ``landowner'' and ``water supply company'' terms.
    vi. ``Water supply surveys'' is proposed relocated from definitions 
to the specific section in each chapter.
    b. Sections 87.119a and 88.107a propose language setting out 
requirements for the operator or mine owner, who affects a water supply 
to any demonstrable extent by contamination, pollution, diminution or 
interruption, to promptly provide temporary replacement water supplies 
as defined at 30 CFR 701.5.
    c. Sections 87.119a(a) and 88.107a(a) (Water supply surveys), 
proposes language expanding the detailed requirements for a water 
supply survey.
    d. Sections 87.119a(a)(1) and 88.107a(a)(1) propose expanding 
existing requirements for the water supply survey, drawing provisions 
from 25 Pa. Code 89.145a, which govern water supply surveys for 
underground coal mining. The resulting proposed regulation would 
address the following requirements:
    i. location and type of the water supply;
    ii. uses of the water supply, both existing and reasonably 
foreseeable future uses;
    iii. the chemical and physical characteristics of the water;
    iv. historic and recent quantity measurements and other hydrologic 
data;
    v. physical description of the water supply;
    vi. sufficient sampling and other measurements to document the 
seasonal variation in hydrologic conditions of the water supply.
    e. Sections 87.119a(a)(2) and 88.107a(a)(2) propose the 
requirements for operators or mine owners to submit the water supply 
survey to the Department, to the water supply owner, and the water 
supply user, prior to permit issuance.
    f. Sections 87.119a(a)(3) and 88.107a(a)(3) propose the 
requirements for operators or mine owners to complete a water supply 
survey prior to the time a water supply is susceptible to mining-
related effects and that the survey shall be included as part of the 
application for a surface mining permit.
    g. Sections 87.119a(a)(4) and 88.107a(a)(4) regarding rejection of 
pre-mining or post-mining surveys by the water supply owner, reorganize 
the requirements with regard to ``defenses to presumption of 
liability'' and ``notification to the Department.''
    h. Sections 87.119a(b) and 88.107a(b) (Water supply replacement 
obligation), propose language amending, through enhanced specificity, 
the existing requirement that an operator or mine owner to restore or 
replace an affected water supply, no matter how minimal, with a 
permanent alternative source to meet reasonably foreseeable uses of the 
existing water supply and that for any water supply that will, with a 
reasonable degree of certainty establish by supporting evidence, be 
affected by contamination, pollution, diminution or interruption by the 
proposed mining, the operator or mine owner shall provide a replacement 
supply prior to commencing the activity. In addition, it proposes to 
require that the operator or mine owner provide to the Department, in 
writing, a description of the locations of a restored or replaced water 
supply.
    i. Sections 87.119a(c) and 88.107a(c) (Temporary water supplies) 
propose requirements that, if the Department has determined in a 
preliminary review that the water loss is related to mining activity, a 
temporary water supply, adequate to meet pre-mining needs, must be 
provided within 24 hours if no alternate source of water is readily 
available to the water supply owner or user.
    j. Sections 87.119a(d) and 88.107a(d) (Immediate replacement of 
water supply by the Department) propose language addressing the 
immediate replacement of a water supply and the Department's authority 
to recover costs from the responsible operator or mine owner, as 
relocated verbatim from sections 87.119(e) and 88.107(f).
    k. Sections 87.119a(e) and 88.107a(e) (Reimbursement), propose new 
requirements addressing reimbursement of a water supply owner or user 
based on a negotiation in circumstances where a water supply owner or 
user has replaced a water supply that an operator or mine owner is 
responsible for replacing. This requirement includes a process should 
disputes arise and the determination by the Department of the fair cost 
reimbursement. This requirement also imposes a 5-year reimbursement 
claim period until final bond release.
    l. Sections 87.119a(f) and 88.107a(f) (Adequacy of permanently 
restored or replaced water supply) propose language expanding the 
concepts of ``adequate quality'' and ``adequate quantity'' in 
permanently restored or replaced water supplies and eliminates 
references to the concept of de minimis costs of operation and 
maintenance.

[[Page 33024]]

    m. Sections 87.119a(g) and 88.107a(g) (Increased operation and 
maintenance costs) propose language describing the procedure for 
determining annual operation and maintenance costs and providing for 
these costs so that the restored or replaced water supply is no more 
costly to operate and maintain than the original water supply.
    n. Sections 87.119a(h) and 88.107a(h) (Special provisions for 
operation and maintenance costs) propose language clarifying two 
provisions for operation and maintenance costs: when the ownership of 
the supply changes; and when there are multiple supplies that have been 
replaced with associated increases in costs.
    o. Sections 87.119a(i) and 88.107a(i) (Waivers) propose to address 
compensation as an alternative to replacement and would provide that 
only a water supply owner may waive the operator's or mine owner's 
responsibility to replace a water supply, which may occur only when 
replacement is not necessary to achieve the approved post-mining land 
use.
    p. Sections 87.119a(j) and 88.107a(j) (Presumption of liability) 
propose to restate provisions in PASMCRA that provide that the operator 
or mine owner is presumed liable for water supply pollution and 
diminution within 1,000 feet of areas affected by mining and restate 
the five defenses to the presumption of liability that exist in 
PASMCRA. This revision does not propose to make any changes to the 
statutory defenses but clarifies the criteria for the operator or mine 
owner to be excluded from the presumption of responsibility.
    q. Sections 87.119a(k) and 88.107a(k) (Operator cost recovery) 
propose replacement of language disapproved in 2005 due to the repeal 
of section 4.2(f)(5) of PASMCRA. They address an operator's or mine 
owner's ability to recover costs by referencing the current statute 
related to cost for mining proceedings at 27 Pa.C.S. section 7708.
    r. Sections 87.119a(l) and 88.107a(l) (Other remedies) propose 
language clarifying that nothing in the regulations would prevent a 
water supply owner or user from pursuing any other remedy provided in 
law or equity when claiming pollution or diminution of a water supply. 
The language also clarifies that nothing in the regulations prevents an 
operator or mine owner from pursuing other legal remedies should they 
incur costs in restoring or replacing a supply that experienced 
pollution or diminution caused by third parties.
    s. Sections 87.119a(m) and 88.107a(m) (Issuance of new permits) 
propose the removal of language from previous sections that indicated 
that a Department order to restore or replace a water supply would not 
affect final bond release.

B. Revisions to Other Sections are Solely for the Purpose of 
Establishing Consistency or To Adjust the References Affected by 
Renumbering

    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES or at https://www.regulations.gov.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Electronic or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations 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.
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 p.m., EDT on June 7, 
2023. 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. Statutory Orders and Executive Reviews

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, the approval of State program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

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

[[Page 33025]]

opportunity for public comment. We conclude our review of the proposed 
amendment after the close of the public comment period and determine 
whether the amendment should be approved, approved in part, or not 
approved. At that time, we will also make the determinations and 
certifications required by the various laws and Executive orders 
governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
[FR Doc. 2023-10819 Filed 5-22-23; 8:45 am]
BILLING CODE 4310-05-P