The Foundation Mineral and Energy Law Newsletter
Pennsylvania- Mining
(By Joseph K. Reinhart, Sean M. McGovern, Gina N. Falaschi and Christina Puhnaty)
On November 6, 2021, the Pennsylvania Environmental Quality Board (EQB) issued proposed amendments to 25 Pa. Code chs. 88 (Anthracite Coal) and 90 (Coal Refuse Disposal). See Coal Refuse Disposal Revisions, 51 Pa. Bull. 6914 (proposed Nov. 6, 2021). The proposed amendments are intended to implement Pennsylvania’s Act of October 4, 2019 (P.L. 452, No. 74) (Act 74) and to address the differences between the commonwealth’s regulations and federal regulations relating to temporary cessation at coal refuse disposal sites.
This proposal was adopted by the EQB at its meeting on June 15, 2021. On January 5, 2022, the EQB received a letter from Pennsylvania’s Independent Regulatory Review Commission (IRRC) indicating that the IRRC has no objections, comments, or recommendations on the proposed rule. See Letter from David Sumner, Exec. Dir., IRRC, to Hon. Patrick McDonnell, Chairman, EQB (Jan. 5, 2022). The amendments will go into effect upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Changes Proposed Pursuant to Act 74
Act 74 amended section 6.1 of the Coal Refuse Disposal Control Act (CRDA), 52 Pa. Stat. § 30.56a, to remove the commonwealth’s one-year limitation on the temporary cessation of operations at a coal refuse disposal site. The Pennsylvania Department of Environmental Protection (PADEP) has proposed to incorporate this amendment at 25 Pa. Code § 88.310(k)(1).
Pursuant to Act 74’s amendment of section 6.1 of the CRDA, PADEP also proposes to amend 25 Pa. Code § 90.167(a) to address temporary cessation status of operations lasting 30 days or more and will require a notice to be submitted to PADEP. This notice must include the affected acres in the permit area, a description of the extent and kind of reclamation of the area, a description of the activities that will continue during the temporary cessation status, and a description of the status of the operation or operations that is the source of the coal refuse.
Act 74 also allowed PADEP to promulgate regulations that will link the status of operations generating coal refuse to the coal refuse disposal area. For example, under these new regulations, when an underground coal mine is approved for temporary cessation, the coal refuse disposal site associated with that mine would also be approved for temporary cessation because no refuse material is being generated to be sent there. Where a coal refuse disposal site receives material from more than one mine, the coal refuse disposal site’s temporary cessation status ends with the resumption of operations at any of its source mines, or with permanent cessation at all source mines. PADEP has proposed to incorporate these amendments at sections 88.332(d)–(f) and 90.167(e)–(g).
Act 74 also revised section 6.1 of the CRDA to include an enumerated list of the circumstances under which an operator must install a system to prevent precipitation from contacting the coal refuse. These instances include when phases reach capacity, when specified in the permit, when an operator temporarily ceases operation for a period in excess of 90 days unless PADEP approves an operator’s request for a longer period, or when the operation permanently ceases. PADEP proposed changes to section 90.122(h) to parallel Act 74’s language.
Other Changes Proposed by PADEP
PADEP further proposed an amendment to section 88.333(b) that would provide a trigger for when temporary cessation becomes permanent cessation. The three circumstances that will terminate the temporary cessation status are failure to comply with a final adjudicated proceeding through an act or omission that violates the acts defined in section 86.1 or chapters 86–90, failure to comply with a permit condition required by the acts or chapters 86–90, and failure to comply with a consent order and agreement or a consent order. A similar provision is not found in the federal requirements or in Act 74.
PADEP has also proposed clarifications to regulations that will settle confusion for applicants for coal refuse site permits. One such clarification is amending the existing performance standards for terraces and surface water runoff at coal refuse disposal sites to state that terraces must be constructed as they are needed to control erosion and prevent cascading failures of the final cap rather than just being an optional use. This proposed change is found at section 90.122(m).
PADEP has also proposed amendments to sections 88.332(b) and 90.167(b) that address a temporary cessation status of operations lasting 90 days or more. These amendments require operators to submit to PADEP a confirmation that the current bond is adequate to complete reclamation and to describe the timing of the installation of the “phased system” to prevent precipitation from contacting the refuse.
Comments on the proposed amendments were due in early December 2021 and the EQB received comments from two parties, the Center for Coalfield Justice and the Pennsylvania Coal Alliance. Comments on the proposed rule can be found at https://www.ahs.dep.pa.gov/eComment/ViewComments.aspx?enc=DN064MT8R38NKyiRv2iU7MXT16ZFzbgxvN%2bnfipCQR4%3d.
PADEP Issues Final Guidance on Remining of Areas with Preexisting Pollutional Discharges
On December 10, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published final technical guidance on remining of areas with preexisting pollutional discharges. See PADEP, TGD No. 563-2112-613, “Remining of Areas with Pre-Existing Pollutional Discharges” (Dec. 10, 2021). The purpose of this guidance is to identify and explain the requirements necessary to qualify for the remining protections found under subchapter F of 25 Pa. Code ch. 87, subchapter G of 25 Pa. Code ch. 88, and subchapter F of 25 Pa. Code ch. 90 (collectively, Subchapter F/G). This guidance explains the obligations of a mine operator during the remining activity, the procedures to be followed to modify a remining permit to account for changes in groundwater flow patterns and/or new discharges, and how to qualify for bond release.
The guidance document first identifies and explains conditions that must be met to qualify for Subchapter F/G permit authorization. For a Subchapter F/G permit to be issued, the proposed mining and reclamation activities should exhibit a significant potential to abate or reduce the pollutional load from the preexisting discharges of previous surface mining. Remining protections under Subchapter F/G do not apply to underground mining permits. To be eligible, applicants for Subchapter F/G permits must have no existing legal responsibility for treatment of the discharges or for reclaiming the proposed pollutional abatement area. The water quality must be indicative of mine drainage pollution and the discharges must be from mining activities that have been abandoned prior to the remining permit application. The discharges must also be hydrologically connected to the permit area and to the proposed pollution abatement area intended to reduce the pollution load.
The guidance document then explains the requirements of the Pollution Abatement Plans that are included in applications for authorization under Subchapter F/G. These Pollution Abatement Plans should describe the anticipated impact on the preexisting pollutional discharges, which may include effects on infiltration, evapotranspiration, water quality improvements, and any other anticipated pollution reduction benefits resulting from implementation of the abatement plan. The Pollution Abatement Plan is then incorporated into the permit as an effluent limit; the best management practices (BMPs) that comprise the Pollution Abatement Plan are the permit’s narrative effluent limits and the numerical limits are determined by a baseline dataset and are represented by the trigger values.
The guidance provides that the protections under Subchapter F/G can be applied in three ways in a tiered manner:
(1) collect data to establish a baseline pollution load at individual points and hydrologic units, (2) sample at designated in- stream monitoring points to establish an instream baseline concentration, or (3) through BMPs only. Applicants should justify why they cannot use option 1 in order to use option 2, and to use option 3, they must justify why they cannot use options 1 and 2. If individual, discrete points can be monitored, the Tier 1 option is likely the appropriate option. The guidance then outlines the steps that operators must take following trigger exceedances.
Finally, the guidance document describes the procedures for modifying Subchapter F/G permits and the permit baselines, and the standards to qualify for bond release.
PADEP Revises Air Pollution and Noise Control Plans for Three Mine Permits
On October 8, 2021, the Pennsylvania Department of Environmental Protection (PADEP) revised the air pollution and noise control plans that apply to the following permit applications: Bituminous Surface Mine Permit 5600-PM-BMP0311, Anthracite Surface Mine Permit Application 5600-PM-BMP0343, and Large Noncoal Industrial Minerals Mine Permit 5600-PM- BMP0315.
The new air pollution and noise control plan requirements for all three application types asks applicants to identify if there will be any processing facilities (crushing, screening, cleaning, and/or stockpiling) in the permit area, and asks applicants to describe those facilities and the amount of minerals to be processed. If the amount of minerals to be processed is less than 200 tons/day, these plans require applicants to describe the management practice to be utilized to control fugitive dust, and if the amount of minerals to be processed is equal to or greater than 200 tons/day, the plans direct the applicant to contact the appropriate PADEP Regional Office Air Quality Program.
To control fugitive dust, the plans ask applicants to describe the practices that will be utilized at the surface mining operation for the following activities: access roads, truck traffic, drilling, overburden removal and coal extraction, stockpiles, loading and unloading, crushing and other processing equipment, and conveyers.
The plans also ask applicants to list all noise sources from equipment and mining activity that will originate within the permit area, indicating the hours of operations for this equipment and whether the permit area is adjacent to any residential areas, schools, hospitals, or churches. The plans require applicants to describe the pre-mining environmental sound levels in the permit area at various points of the day and ask if a noise study has been conducted within the surrounding area. Finally, the plans ask applicants to describe the measures (best management practices) that will be taken to mitigate noise and prevent noise from becoming a public nuisance.
The air pollution and noise control plan for the Large Noncoal Industrial Minerals Mine Permit 5600-PM-BMP0315 contains one additional requirement that is not included in the Bituminous Surface Mine Permit 5600-PM-BMP0311 or Anthracite Surface Mine Permit Application 5600-PM-BMP0343. The Large Noncoal Industrial Minerals Mine Permit plan requires applicants to provide the date that the PADEP Regional Air Quality Office was contacted or, if applicable, provide a copy of the PADEP Air Quality Program’s determination to grant an exemption from the air quality permit requirements and of any authorizations granted under the Air Quality General Operating Permit for Portable Nonmetallic Mineral Processing Plants.
Governor Wolf Vetoes Legislative Disapproval of RGGI Rule
As previously reported, the Pennsylvania Department of Environmental Protection’s (PADEP) CO2 Budget Trading Program, or Regional Greenhouse Gas Initiative (RGGI), regulation is nearing final publication. See Vol. XXXVIII, No. 4 (2021) of this Newsletter. RGGI is a regional cap-and-trade program for carbon dioxide (CO2) emissions from fossil fuel-fired electric generating units with a nameplate capacity of 25 megawatts or greater. PADEP proposes that the commonwealth join RGGI pursuant to Governor Tom Wolf’s 2019 executive order.
Following approval of the regulation by Pennsylvania’s Independent Regulatory Review Commission in September 2021, the final-form rulemaking was submitted to the House and Senate Environmental Resources and Energy standing committees.
The Senate Environmental Resources and Energy Committee passed a resolution disapproving the regulation and reported that resolution out of committee to the full chamber. The Senate passed Senate Concurrent Regulatory Review Resolution 1 (S.C.R.R.R.1), which disapproves of the rulemaking, on October 27, 2021. S.C.R.R.R.1 was reported by the House Environmental Resources and Energy Committee on November 8, 2021. On December 15, 2021, in a 130-70 vote, the House passed a resolution as well.
While the resolution was pending in the legislature, on November 29, 2021, the Environmental Quality Board (EQB) sub- mitted the CO2 Budget Trading Program rule to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. The Legislative Reference Bureau informed the EQB that it was not authorized to publish the rule because S.C.R.R.R.1 was still pending before the House of Representatives.
Governor Wolf vetoed the resolution on January 10, 2022, and released a veto message about the importance of the regulation. Press Release, Gov’r Tom Wolf, “Governor Wolf Vetoes Resolution That Would Hinder Pennsylvania’s Ability to Address Climate Crisis” (Jan. 10, 2022). The Governor’s veto sent the resolution back to the legislature, where each chamber has 30 calendar days or 10 legislative days, whichever is longer, to at- tempt a veto override. The legislature needs a veto-proof two- thirds majority to override the veto and block the regulation. As of this writing, neither chamber has attempted to override the veto.
In the meantime, State Senator Gene Yaw, chair of the Senate Environmental Resources and Energy Committee, wrote a letter to PADEP Secretary Patrick McDonnell to urge him to re- consider an invitation to testify before the committee at a hearing to discuss RGGI allowance prices scheduled for January 18, 2022. Letter from Sen. Gene Yaw, to Hon. Patrick McDonnell, Sec’y, PADEP (Jan 13, 2022). PADEP did not attend the hearing.
Based on the legislative calendar, the legislature has until approximately March 29, 2022, to attempt to override the Governor’s veto. In the meantime, however, on February 3, 2022, McDonnell filed suit in the Commonwealth Court of Pennsylvania seeking to compel the Legislative Reference Bureau to publish the EQB’s final-form rulemaking for the CO2 Budget Trading Program in the Pennsylvania Bulletin. See Complaint, McDonnell v. Pa. Legislative Reference Bureau, No. MD 2022 (Pa. Commw. Ct. Feb. 3, 2022).
If the legislature is unsuccessful in blocking the regulation, or if the commonwealth court compels publication before the end of March 2022, it will be published in the Pennsylvania Bulletin as a final rule. The Office of the Attorney General already approved the regulation in December 2021. Legal challenges to the final rule are anticipated. Further information regarding the rule can be found on PADEP’s RGGI webpage at https://www.dep.pa.gov/Citizens/climate/Pages/RGGI.aspx.
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