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-173-FOR; Docket ID: OSM-2021-0005; S1D1S SS08011000 SX064A000 256S180110; S2D2S SS08011000 SX064A000 25XS501520]</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; partial approval of amendment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving in part an amendment to the Pennsylvania regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment addresses regulations regarding water replacement provisions that were disapproved by us in 2005. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date is August 27, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Thomas J. Koptchak, Field Office Director, Pittsburgh Field Office, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220; Telephone: (202) 513-7685; Email: <E T="03">tkoptchak@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. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the Pennsylvania Program</HD> 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. <E T="03">See</E> 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 <E T="04">Federal Register</E> on July 30, 1982 (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. <HD SOURCE="HD1">II. Submission of the Amendment</HD> 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 <E T="03">et seq.</E> ). The proposed amendment addresses several items, previously not approved, relating to inconsistencies between Pennsylvania's Surface Coal Mining Program and Federal regulatory requirements relating to water supply replacement as specified at 30 CFR 938.12(c). This submission also proposes to address, among other issues, five provisions previously submitted by Pennsylvania pertaining to water replacement which were not approved by final rule on May 13, 2005 (70 FR 25472). In its August 5, 2021 amendment submission letter, Pennsylvania states that 25 Pa. Code Sections 87.119 and 88.107 required extensive reorganization for clarity. Pennsylvania has reserved these sections and adopted new sections at 25 Pa. Code 87.119a and 25 Pa. Code 88.107a. With this submission, Pennsylvania intends to create water replacement requirements that are consistent with SMCRA and the Federal regulations. We announced receipt of the proposed amendment in the <E T="04">Federal Register</E> on May 23, 2023 (88 FR 33021). 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. No hearing or meeting was requested and, therefore, neither was held. The public comment period ended June 22, 2023. We received no comments. <HD SOURCE="HD1">III. OSMRE's Findings</HD> The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concern non-substantive wording or editorial changes. We are approving the amendment, in part, and not approving it in part, as described below. As an initial matter, in its August 5, 2021, submission (Administrative Record No. PA 907.00), Pennsylvania explained that its proposed changes to 25 Pa. Code sections 87.119 and 88.107 required extensive reorganization, and these sections were replaced by the new Sections 87.119a and 88.107a. The text of 25 Pa. Code 87.119a is structurally and substantively identical to that of 25 Pa. Code 88.107a. Accordingly, our findings regarding any specific subsection or provision of 25 Pa. Code 87.119a also apply to its twin at 25 Pa. Code 88.107a. <HD SOURCE="HD2">1. 25 Pa. Code Sections 87.1 and 88.1—Definitions</HD> Pennsylvania has proposed to amend 25 Pa. Code Sections 87.1 and 88.1 to provide definitions for “operation and maintenance costs” and “water supply owner,” as well as to amend the term “water supply” as follows. The term “operation and maintenance costs” is defined as “all costs incurred by the water supply owner or water supply user associated with utilizing that supply for the purposes served. Examples of these costs include electricity, chemicals, treatment system maintenance, public water fees and equipment replacement costs.” The definition provided for “water supply owner” is a “landowner or water supply company.” The proposed amendment to the definition for “water supply” is, “for the purpose of Sections 87.47 and 87.119a (relating to alternative water supply information; and hydrologic balance: water rights and replacement), an existing, designated, or currently planned source of water, facility, or system for the supply of water for human consumption or for agricultural, commercial, industrial or other uses. Natural soil moisture utilized by vegetation or crops is not a water supply.” The changes to this definition are the addition of the last sentence regarding soil moisture, the revision of the reference to section 87.119 to reflect its replacement at 87.119a, and the addition of a parenthetical description of the contents of section 87.119a. 25 Pa. Code Sections 87.1, 88.1, and 89.5 previously defined the term “de minimis cost increase” as a cost increase either less than 15% of the annual operating and maintenance costs of the previous water supply that is restored or replaced, or a cost that is less than $60 per year. We previously did not approve of this term or its use in conjunction with replacement water supplies to the extent it could allow any additional cost above the premining cost to be passed to the water supply user or owner. <E T="03">See</E> 70 FR 25472, 25482-83 (May 13, 2005); 66 FR 67010, 67029 (December 27, 2001). The definition for “de minimis cost increase” has since been deleted from 25 Pa. Code Sections 87.1, 88.1, and 89.5. <E T="03">OSMRE Finding:</E> The definitions of “operation and maintenance costs,” “water supply,” and “water supply owner” are not defined terms in SMCRA or the Federal regulations at 30 CFR part 700. We find these proposed definitions are not inconsistent with the use of those terms used with section 4.2(f) of PASMCRA (52 P.S. 1396.4b(f)). When we previously considered the water supply replacement requirements for 25 Pa. Code Chapter 89 relating to water supplies affected by underground mining activities, we determined that the definition of “de minimis cost increase” was not as effective as that which appears in the Federal regulation at 30 CFR 701.5 (definition of the term, “replacement of water supply”). 70 FR 25472, 25482-83 (May 13, 2005); 66 FR 67010, 67029 (December 27, 2001). We found the intent of the Federal regulation was to ensure that the owner or user of the water supply was made whole and that no additional costs were passed on to the water supply owner or user. Accordingly, we previously did not approve the definition of “de minimis cost increase” as it appeared at 25 Pa. Code 87.1 and 88.1. 70 FR 25472, 25482 (May 13, 2005); 30 CFR 938.12(c)(4). Pennsylvania has now proposed to delete the “de minimis cost increase” provisions from 25 Pa. Code 87.1 and 88.1, and to not insert any such term as part of the criteria at 25 Pa. Code 87.119a(f) and 88.107a(f) (which were included with their predecessor sections at 25 Pa. Code 87.119(a)(1)(v) and 88.107(a)(1)(v)). These deletions resolve our prior disapproval and cause the Pennsylvania program to comply with SMCRA and the Federal regulations at 30 CFR 701.5. The definitions and deletions proposed above are consistent with SMCRA and no less stringent than the Federal regulations, and we approve these changes. Because the deletion of the term “de minimis cost increase” at 25 Pa. Code 87.1 and 88.1 resolves our prior non-approval codified at 30 CFR 938.12(c)(4), that provision can be removed and reserved. <HD SOURCE="HD2">2. 25 Pa. Code Sections 87.47 and 88.27—Alternative Water Supply Information</HD> Pennsylvania has proposed revisions to 25 Pa. Code sections 87.47 and 88.27. These sections state that a permit application “shall identify the extent to which the proposed . . . mining activities may result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent area for domestic, agricultural, industrial or other legitimate use.” Pennsyl ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 71k characters. 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