Pennsylvania Regulatory Program

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Part 938</CFR> <DEPDOC>[SATS No. PA-170-FOR; Docket ID: OSM-2108-0007; S1D1S SS08011000 SX064A000 234S180110 S2D2S SS08011000 SX064A000 23XS501520]</DEPDOC> <SUBJECT>Pennsylvania Regulatory Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving a request from Pennsylvania for the removal of 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). The required amendment directed Pennsylvania to submit regulations requiring that siltation structures ( <E T="03">e.g.,</E> sedimentation ponds) not be removed any sooner than two years after the last augmented seeding. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date is September 9, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ben Owens, Acting Field Office Director, Pittsburgh Field Office, Office of Surface Mining Reclamation and Enforcement, Telephone: (412) 937-2827. Email: <E T="03">bowens@osmre.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background on the Pennsylvania Program</FP> <FP SOURCE="FP-2">II. Submission of the Amendment</FP> <FP SOURCE="FP-2">III. OSMRE's Findings</FP> <FP SOURCE="FP-2">IV. Summary and Disposition of Comments</FP> <FP SOURCE="FP-2">V. OSMRE's Decision</FP> <FP SOURCE="FP-2">VI. Procedural Determinations</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the Pennsylvania Program</HD> Subject to OSMRE oversight, 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 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. <E T="03">See</E> 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 in the July 30, 1982, <E T="04">Federal Register</E> (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. <HD SOURCE="HD1">II. Submission of the Amendment</HD> By letter dated August 9, 2018 (Administrative Record No. PA 903.00), Pennsylvania requested removal of a required amendment from its program. This amendment, 30 CFR 938.16(rrr), requires Pennsylvania to amend three subsections in title 25 of the Pennsylvania Code (Pa. Code), specifically subsections 87.108(c), <E T="03">Hydrologic balance: sedimentation ponds</E> (applicable to surface coal mining), 89.24(c), <E T="03">Performance Standards: Sedimentation ponds</E> (applicable to underground coal mining), and 90.108(c), <E T="03">Hydrologic balance: sedimentation ponds</E> (applicable to coal refuse disposal sites), or otherwise to amend its program to require, without exception, that sedimentation ponds not be removed sooner than two years after the last augmented seeding. We gave notice of receipt of Pennsylvania's August 9, 2018, request in the May 1, 2019, <E T="04">Federal Register</E> (84 FR 18435). In the same notice, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because none was requested. The public comment period ended on May 31, 2019. We received no comments. <HD SOURCE="HD1">III. OSMRE's Findings</HD> We are approving Pennsylvania's request to eliminate the required amendment as described below and approving language we previously rejected as being less effective than the Federal regulations. The following are findings we made concerning Pennsylvania's request under SMCRA at 30 U.S.C. 1253, <E T="03">State Programs,</E> and the Federal regulations at 30 CFR 732.15, <E T="03">Criteria for approval or disapproval of State programs,</E> and 732.17, <E T="03">State program amendments.</E> <HD SOURCE="HD2">A. Pennsylvania's Rationale</HD> With this request, Pennsylvania presents a number of reasons why the required amendment should be removed and why previously submitted language revising 25 Pa. Code 87.108(c)—Sedimentation Ponds: Surface Coal Mines; 89.24(c)—Sedimentation Ponds: Underground Mines and Coal Preparation Facilities; and 90.108(c)—Sedimentation Ponds: Coal Refuse Disposal should be approved. The previously submitted revised language required that sedimentation ponds be maintained until the disturbed area has been stabilized and revegetated and removal is approved by the Department, and that the ponds may not be removed sooner than 2 years after the last augmented seeding unless the Department finds that the disturbed area has been sufficiently revegetated and stabilized. <HD SOURCE="HD3">1. Use of Best Technology Currently Available (BTCA)</HD> In support of removing the required amendment and accepting the revised language, Pennsylvania identifies the 1985 court decision in <E T="03">In re Permanent Surface Mining Regulation Litigation,</E> 620 F. Supp. 1519 (D.D.C.), as well as our 1986 rule suspending 30 CFR 816.46(b)(2) and 817.46(b)(2), and reasons that 30 CFR 816.46(b)(1) now governs sediment control. Pennsylvania also notes that when a pond is removed prior to two years after the last augmented seeding, its program requires that sediment control measures that have been determined by the Pennsylvania Department of Environmental Protection (PADEP) to constitute BTCA must at that point be in place. 25 Pa. Code 87.108(i), 90.108(j). Pennsylvania also notes that its program establishes vegetation standards (25 Pa. Code 87.147-87.153, 87.155, 87.156, 89.86, 90.151-90.157, 90.159, and 90.160) as the BTCA. For example, 25 Pa. Code 87.147(b) requires the establishment of “a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area. . . .”. Pennsylvania's submission also references Montana and Ohio as successfully amending their programs and receiving OSMRE approval to allow removal of sedimentation ponds sooner than two years after last augmented seeding if replaced by BTCA. <E T="03">See</E> 55 FR 19727 (May 11, 1990) (regarding the Montana program); 59 FR 58778 (November 15, 1994) (regarding the Ohio program). <HD SOURCE="HD3">2. Approval Required Prior to Removal</HD> In support of removing the required amendment and accepting the revised language, Pennsylvania also indicates that 25 Pa. Code 87.108(c), 89.24(c), and 90.108(c) require the regulatory authority to approve the removal of the ponds as required by 30 CFR 816.46(b)(5), which we infer reflects Pennsylvania's view that the required approval provides a safeguard against the possibility that sedimentation ponds would be removed prematurely. <HD SOURCE="HD3">3. Revegetation Experience</HD> In further support of removing the required amendment and accepting the revised language, Pennsylvania recounts its experience with revegetation and notes that revegetation is often established in less than two years. 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. <HD SOURCE="HD3">4. No Statutory Prohibition</HD> Finally, in support of removing the required amendment and accepting the revised language, Pennsylvania states that there is no statutory prohibition to Pennsylvania's approach. In conclusion, Pennsylvania asserts that its program's approach, with the revised language and without the required amendment, is no less effective than the Federal program for the reasons mentioned above. Therefore, Pennsylvania is requesting that the required program amendment at 30 CFR 938.16(rrr) be removed and proposed revisions to 25 Pa. Code sections 87.108(c), 89.24(c), and 90.108(c) be approved. <HD SOURCE="HD2">B. Background of Regulatory Scheme</HD> The Federal regulations at 30 CFR parts 816 and 817 (Permanent program performance standards for surface mining and underground mining, respectively) require operators to minimize disturbance 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. 30 CFR 816.41(a) and 817.41(a). The standards address groundwater and surface water protections and include a requirement that additional contributions to streamflow of suspended solids or runoff outside the permit area be prevented to the extent possible using the BTCA. 30 CFR 816.45(a)(1) and 817.45(a). To assist in achieving these objectives, operators often construct siltation structures for sediment control of surface drainage. The Federal regulations define a siltation structure as “a sedimentation pond, a series of sedimentation ponds, or other treatment facility.” 30 CFR 701.5. Siltation structures were originally considered by OSMRE to be the BTCA. They are desig ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━