Pennsylvania Abandoned Mine Land Reclamation Program, 66563-66567 [2024-18260]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66563-66567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18260]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-165-FOR; Docket ID: OSM-2016-0013; S1D1S SS08011000 
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]


Pennsylvania Abandoned Mine Land Reclamation Program

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Pennsylvania Abandoned Mine

[[Page 66564]]

Land Reclamation Plan (Pennsylvania Plan or Plan) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Pennsylvania proposed to modify its Plan by adding Reclamation Plan 
Amendment No. 3 to allow the Pennsylvania Department of Environmental 
Protection (PADEP) to administer a State Emergency Abandoned Mine Land 
Reclamation Program (Program). The amendment to the Pennsylvania Plan 
covers coordination of emergency reclamation work between Pennsylvania 
and OSMRE as well as procedures for implementing the National 
Environmental Policy Act and other Pennsylvania procedures.

DATES: This rule is effective September 16, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting, Chief, 
Pittsburgh Field Office, 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 Plan
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations

I. Background on the Pennsylvania Plan

    The Abandoned Mine Land (AML) Reclamation Program was established 
by title IV of SMCRA (30 U.S.C. 1231-1245) in response to concerns over 
threats to the health and safety of the public and environmental damage 
caused by coal mining activities conducted before the enactment of the 
Act. The program is funded primarily by a reclamation fee collected on 
each ton of coal that is produced. The money collected is used to 
finance the reclamation of abandoned coal mines and other authorized 
activities. Section 405 of the Act allows States and Tribes to assume 
exclusive responsibility for reclamation activity within the State or 
on Indian lands if they develop and submit to the Secretary of the 
Interior (Secretary) for approval a program (often referred to as a 
plan) for the reclamation of abandoned coal mines within their 
jurisdiction.
    On July 31, 1982, the Secretary approved the Pennsylvania Plan. You 
can find background information on the Plan, including the Secretary's 
findings, the disposition of comments, and the approval of the Plan in 
the July 30, 1982, Federal Register (47 FR 33081). You can find later 
actions concerning the Pennsylvania Plan and amendments to the Plan at 
30 CFR 938.25.

II. Submission of the Amendment

    By letter dated November 22, 2016 (Administrative Record No. PA 
898.00), Pennsylvania sent us an amendment to its Plan under SMCRA at 
its own initiative. Within the proposed amendment, Pennsylvania 
requested to modify its Plan to allow PADEP to administer an Emergency 
AML Reclamation Program under title IV of SMCRA (30 U.S.C. 1231-1245).
    We announced receipt of the proposed amendment in the May 16, 2018, 
Federal Register (83 FR 22607). 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. We did not receive any 
public comments and did not hold a public hearing or meeting because 
none was requested. The public comment period ended on June 11, 2018.

III. OSMRE's Findings

    We have made the following findings concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are 
approving the amendment as described below. Any revisions that are not 
specifically discussed below concerning non-substantive wording or 
editorial changes can be found in the full text of the program 
amendment available at www.regulations.gov.
    The proposed amendment consists of new Part G, The Pennsylvania 
Emergency Response Reclamation Program, to be added to the Pennsylvania 
Plan.
    Section 410 of SMCRA (30 U.S.C. 1240) authorizes the Secretary to 
use funds under the AML Reclamation Program to abate or control 
emergency situations in which adverse effects of past coal mining pose 
an immediate danger to public health, safety, or general welfare. On 
September 29, 1982, OSMRE proposed delegating States and Tribes the 
authority to undertake emergency reclamation projects on behalf of the 
Secretary. States and Tribes were invited to amend their AML 
Reclamation Plans and demonstrate that they: (1) have the statutory 
authority to undertake emergencies; (2) the technical capability to 
design and supervise the emergency work; (3) the administrative 
mechanisms to quickly respond to emergencies either directly or through 
contractors; (4) have the staff qualified to make the findings of fact 
described in section 410 that emergency projects to be funded meet the 
definition of ``emergency'' under 30 CFR 700.5; and (5) that the scope 
of the work undertaken to reduce the emergency will be established by 
qualified staff, will not exceed the activities necessary to stabilize 
the life-threatening situation, and should allow remaining reclamation 
work to be undertaken later as a lower priority project. See 47 FR 
42729 (Sept. 29, 1982). On May 28, 2010, OSMRE notified the States with 
approved AML Reclamation Plans that due to Federal budgetary 
constraints, as of Fiscal Year 2011, States would assume the 
responsibility for funding of the AML emergency programs from their 
title IV AML grants.

1. Statutory Authority

    Part G of the Pennsylvania Plan includes a copy of the letter dated 
November 1, 1978, that Pennsylvania included in its original Plan 
submission, wherein the Governor of Pennsylvania designated the 
Pennsylvania Department of Environmental Resources (PADER) as the State 
agency responsible for the AML Program in Pennsylvania. According to 
additional information provided in Part G, on July 1, 1995, DER was 
split into the Department of Conservation and Natural Resources and 
PADEP, the latter of which administers Pennsylvania's Plan. The 
Pennsylvania Plan also includes: (1) the 1978 legal opinion of the 
Pennsylvania Attorney General that PADER (now PADEP) is authorized by 
Pennsylvania law to administer the Plan; and (2) a 2016 memorandum from 
PADEP's Office of Chief Counsel specifying PADEP's statutory authority 
to administer an Emergency AML Reclamation Program as part of its Plan.
    OSMRE Findings: In addition to the general police power granted to 
PADEP to conduct reclamation work under the Clean Streams Law (35 P.S. 
691.1 et seq.) and the Administrative Code of 1929 (71 P.S. 510-15), 
section 16 of the Land and Water Conservation and Reclamation Act (32 
P.S. 5116) and the Mine Fire and Subsidence Remedial Project 
Indemnification Law (52 P.S. 30.201-30.206) provide for the right of 
entry on any land where an emergency exists, and any other land to have 
access to the land where the emergency exists, with requirements to 
attempt to notify appropriate landowners and the option, at the 
agency's discretion, to recoup costs from the improved value of the 
land. Based on our review of Pennsylvania's relevant statutory 
provisions, and the inclusion of the 1978 legal opinion and the 2016 
memorandum, we have determined that Pennsylvania has the statutory 
authority to undertake emergencies in compliance

[[Page 66565]]

with SMCRA and all other applicable State and Federal laws and 
regulations.

2. Technical Capability

    On October 1, 2010, OSMRE ceased implementing the Emergency AML 
Reclamation Program in Pennsylvania and transferred emergency AML 
reclamation responsibilities to PADEP. Pennsylvania subsequently 
created an Accelerated Response Program (ARP) in 2010, which was 
administered by the PADEP's Bureau of Abandoned Mine Reclamation 
(BAMR), to address AML emergencies that have occurred throughout 
Pennsylvania's eligible coalfields.
    As of the end of evaluation year 2022, Pennsylvania has reclaimed a 
total of 1,574,786 feet of dangerous highwalls, 2,016 acres of 
dangerous spoil piles and embankments, 47 dangerous impoundments, 153 
hazardous water bodies, 1,601 vertical openings, and 771 miles of 
sediment-clogged streams. In its submission, Pennsylvania states that 
these are the same types of abandoned mine land features that the State 
will likely continue to encounter in emergency reclamation projects, 
and the technical capabilities used for emergency reclamation projects 
are generally the same as those used for normal, high priority 
reclamation projects, but with a potentially accelerated project 
schedule. In addition, Pennsylvania indicated that current staffing 
levels should be sufficient for the implementation of the emergency 
program, but PADEP may adjust the personnel structure as needed to 
accommodate the program in the future.
    Pennsylvania states that BAMR maintains two field offices: one in 
eastern Pennsylvania (Anthracite Region) in Wilkes-Barre and one in 
western Pennsylvania (Bituminous Region) in Ebensburg, both of which 
have the capability to address emergency AML problems with both in-
house staff and outside contractors. Pennsylvania indicates that both 
field offices maintain in-house construction crews with significant 
equipment available to respond to and address many small AML 
emergencies such as pothole (or cavehole) subsidences and mine drainage 
breakouts. Pennsylvania provides that emergency project development, 
design, realty, construction inspection, and administration are 
performed by BAMR staff or outside consultants. Pennsylvania indicates 
that approximately eighty percent of emergency projects have been 
constructed by PADEP's in-house crews between 2010 and 2020. In 
addition, Pennsylvania states that for larger AML emergencies, such as 
subsidence events causing structural damage to homes, businesses, and 
roads; mine fires; coal refuse fires; landslides; or other large-scale 
or complex AML problems, projects are completed by outside contractors 
awarded contracts using Pennsylvania's emergency contracting 
procedures.
    OSMRE Findings: We have found that Pennsylvania has run ARP since 
2010 in a cost efficient and professional manner. For example, having 
the in-house construction crews affords Pennsylvania a major time and 
cost saving advantage. We have found the in-house constructed projects 
require minimal design or construction management resources because the 
construction staff is proficient and experienced, and requires minimal, 
if any, construction inspection or oversight.
    In addition, throughout the years, PADEP, through its partnership 
with OSMRE, has assembled the necessary funding, staff resources, 
expertise, and implementation measures to effectively address and 
mitigate suddenly occurring, dangerous abandoned mine land problems. 
OSMRE has recognized 18 Pennsylvania projects since 1993 with regional 
and national awards for going beyond standard reclamation requirements 
to achieve superior results in returning a site to productive use after 
completion of mining.
    Based on Pennsylvania's demonstrated historical success in 
executing their Plan, the proficiency of ARP since 2010, and the 
description of its technical staff and processes described in section 
III of its submission, we have determined that Pennsylvania has the 
technical capability to design and supervise emergency work.

3. Administrative Mechanisms

    Pennsylvania explains in its submission that the organizational and 
management structure to be used for the proposed emergency program will 
be similar to that used for ARP. Pennsylvania states that key elements 
of the State's proposed program that provide essential flexibility to 
address emergency conditions include:
     access to accelerated contracting procedures provided 
within Pennsylvania's Procurement Code;
     use of multiple staff with the necessary technical skills 
working in parallel to advance reclamation quickly; and
     supplementary technical, legal, contracting, and 
administrative services from respective sections of PADEP as needed.
    OSMRE Findings: PADEP has been operating ARP since OSMRE ceased 
implementing the Emergency AML Reclamation Program in 2010 in 
Pennsylvania. We find that Pennsylvania has run ARP in a cost efficient 
and professional manner. Many of the administrative processes required 
to implement the proposed emergency program are the same as those 
already in place for ARP and the Pennsylvania Plan, which has run 
successfully since approval in 1982. Based on Pennsylvania's 
description of its administrative and managerial structure in section 
IV of its submission, we have determined that Pennsylvania has the 
administrative mechanisms in place to manage and implement an emergency 
program.

4. Finding of Fact

    In its submission, Pennsylvania provides that it will perform the 
investigations and eligibility findings for the proposed emergency 
projects under title IV of SMCRA. Pennsylvania indicates that it will 
then submit this information to the OSMRE official with delegated 
authority to make the requisite Finding of Fact and emergency 
declarations as required under section 410 of SMCRA. Moreover, 
Pennsylvania states that PADEP will follow the approved procedures 
contained in the OSMRE Federal Assistance Manual (FAM) chapter 4-120, 
which includes the Finding of Fact requirements.
    OSMRE Findings: Given Pennsylvania's description of how PADEP will 
coordinate with OSMRE in establishing the Finding of Fact and emergency 
declaration, including the appropriate OSMRE official finding whether 
the problem meets the definition of ``emergency'' under 30 CFR 700.5, 
we have determined that Pennsylvania has the necessary procedures in 
place to make a Finding of Fact determination consistent with section 
410 of SMCRA.

5. Scope of Work

    In its submission, Pennsylvania indicates that it will coordinate 
its emergency reclamation projects with OSMRE, including following the 
procedures found in FAM chapter 4-120. FAM 4-120 provides procedures 
for OSMRE to define the scope of work necessary to abate the emergency. 
In addition, FAM 4-120 provides information on how the State must 
determine the extent and scope of non-emergency work.
    OSMRE Findings: Based on Pennsylvania's description of how it 
intends to coordinate with OSMRE on its emergency projects consistent 
with

[[Page 66566]]

the FAM, we have determined that Pennsylvania has sufficient 
procedures, consistent with OSMRE guidelines, in place to ensure the 
scope of work for emergency projects will be established by qualified 
staff, is limited to that necessary to eliminate the life threatening 
situation, and will allow remaining reclamation work to be undertaken 
later as a lower priority project.
    In accordance with section 405 of SMCRA and 30 CFR 884.14, 
Pennsylvania has submitted an amendment to its Plan, and we have 
determined that:
    (1) The public has been given adequate notice and opportunity to 
comment, and the record does not reflect major unresolved 
controversies.
    (2) Views of other Federal agencies have been solicited and 
considered.
    (3) The State has the legal authority, policies, and administrative 
structure necessary to implement the amendment.
    (4) The proposed plan amendment meets all requirements of the 
Federal AML Reclamation program regulations at 30 CFR chapter VII, 
subchapter R.
    (5) The State has an approved State Regulatory Program.
    (6) The amendment is in compliance with all applicable State and 
Federal laws and regulations.
    Therefore, we find that the proposed Pennsylvania plan amendment 
allowing the State to assume responsibility for an Emergency AML 
Reclamation Program on behalf of OSMRE is in compliance with SMCRA and 
meets the requirements of Federal regulations. We are approving 
Pennsylvania's assumption of the Program.

IV. Summary and Disposition of Comments

Public Comments

    In the May 16, 2018, Federal Register notice announcing our receipt 
of this amendment, OSMRE asked for public comments (Administrative 
Record No. PA-898.08). No requests for public meetings or hearings were 
received. OSMRE did not receive any comments.

Federal Agency Comments

    On November 30, 2016, under 30 CFR 884.14(a)(2) and 884.15(a), 
OSMRE requested comments on the amendment from various Federal agencies 
with an actual or potential interest in the Pennsylvania program 
(Administrative Record No. PA 898.01). OSMRE did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    On November 30, 2016, under 30 CFR 884.14(a)(6), OSMRE requested 
comments from the EPA on the amendment (Administrative Record No. PA 
898.01). The EPA responded with a letter dated January 6, 2017 
(Administrative Record PA 898.03) that it has reviewed the proposed 
amendment and would not be providing comment.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 884.14(a)(6), OSMRE is required to request comments 
from the SHPO and ACHP on amendments that may have an effect on 
historic properties. On November 30, 2016, OSMRE requested comments on 
the Pennsylvania amendment (Administrative Record No. 898.01). OSMRE 
did not receive any comments.

V. OSMRE's Decision

    Based on the above findings, OSMRE is approving the Pennsylvania 
amendment sent on November 22, 2016 (Administrative Record No. PA 
898.00).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 938 that codify decisions concerning the Pennsylvania 
program. In accordance with the Administrative Procedure Act, this rule 
will take effect 30 days after the date of publication.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not affect a taking of private property or 
otherwise have taking implications that would result in private 
property being taken for government use without just compensation under 
the law. Therefore, a takings implication assessment is not required. 
This determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
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 (OMB Memo M-94-
3), the approval of State program and/or plan amendments is exempted 
from OMB review under Executive Order 12866, as amended by Executive 
Order 14094. Executive Order 13563, which reaffirms and supplements 
Executive Order 12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive order to the quality of this Federal Register document 
and to changes to the Federal regulations. The review under this 
Executive order did not extend to the language of the plan amendment 
that Pennsylvania drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Pennsylvania, through its approved 
reclamation program, implements and administers SMCRA and its 
implementing regulations at the State level. This rule approves an 
amendment to the Pennsylvania Plan submitted and drafted by the State 
and, thus, is consistent with the direction to provide maximum 
administrative discretion to States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175, and have determined that it has no substantial 
direct effects on the distribution of power and responsibilities 
between the Federal government and Tribes. The

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basis for this determination is that our decision is on the 
Pennsylvania program and plan that does not include Indian lands, as 
defined by SMCRA, or regulation of activities on Indian lands. Indian 
lands are regulated independently under the applicable, approved 
Federal program. The Department's consultation policy also acknowledges 
that our rules may have Tribal implications where the State proposing 
the amendment encompasses ancestral lands in areas with mineable coal. 
We are currently working to identify and engage appropriate Tribal 
stakeholders to devise a constructive approach for consulting on these 
amendments.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, and (2) likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Because 
this rule is exempt from review under Executive Order 12866 and is not 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. We are not required to 
provide a detailed statement under the National Environmental Policy 
Act of 1969 because this rule qualifies for a categorical exclusion 
under the U.S. Department of the Interior Departmental Manual, part 
516, section 13.5(B)(29).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject 
of this rule, is based upon corresponding Federal regulations for which 
an economic analysis was prepared and certification made that such 
regulations would not have a significant economic effect upon a 
substantial number of small entities. In making the determination as to 
whether this rule would have a significant economic impact, the 
Department relied upon the data and assumptions for the corresponding 
Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.

    For the reasons set out in the preamble, 30 CFR part 938 is amended 
as follows:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.Inserting required closing tag 
for E.


0
2. In Sec.  938.25, amend the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.25  Approval of Pennsylvania abandoned mine land reclamation 
plan amendments.

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                                                 Date of final
      Original amendment submission date          publication                 Citation/description
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                                                  * * * * * * *
November 22. 2016.............................       8/16/2024  Part G--The Pennsylvania Emergency Response
                                                                 Reclamation Program.
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[FR Doc. 2024-18260 Filed 8-15-24; 8:45 am]
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