RMMLF Mineral Law Newsletter
(By Joseph K. Reinhart, Sean M. McGovern, Daniel P. Hido and Gina N. Falaschi)
In recent months there have been several notable updates regarding Pennsylvania’s statutory and regulatory provisions on temporary cessation of coal refuse disposal operations.
OSMRE Publishes Proposed Rule Regarding Pennsylvania Regulatory Program
As reported in Vol. XXXVI, No. 4 (2019) of this Newsletter, Act 74, P.L. 452 (2019), amending the 1968 Coal Refuse Disposal Control Act (CRDCA), 52 Pa. Stat. §§ 30.51–.66, went into effect on December 3, 2019. Act 74 amended section 6.1(i) of the CRDCA, 52 Pa. Stat. § 30.56a(i), regarding temporary cessation of operations. Prior to Act 74, section 6.1(i) required operators to install a system for preventing precipitation from contacting coal refuse disposal areas that have reached capacity, permanently ceased operation, or temporarily ceased operation for more than 90 days, but allowed the Pennsylvania Department of Environmental Protection (PADEP) to approve an extension of up to one year for reasons of labor strike or business necessity. Act 74 removed the one-year time limit on temporary cessation and the restriction that an extension beyond 90 days could only be granted for reasons of labor strike or business necessity.
On October 16, 2019, Pennsylvania submitted an amendment to its regulatory program under the Surface Mining Control and Reclamation Act to the Office of Surface Mining Reclamation and Enforcement (OSMRE) for approval. OSMRE published notice of the proposed program amendment in the Federal Register on February 14, 2020. See 85 Fed. Reg. 8494 (proposed Feb. 14, 2020) (to be codified at 30 C.F.R. pt. 938).
The public comment period on the proposed rule closed on March 16, 2020. Only two comments were submitted. OSMRE will now determine whether the proposed amendment should be approved. If OSMRE approves the amendment it will become part of Pennsylvania’s approved regulatory program upon publication of the final rule in the Federal Register.
PADEP Unveils Proposed Changes to Coal Refuse Disposal Regulations
The requirements of section 6.1(i) of the CRDCA are further reflected in PADEP’s coal refuse disposal regulations at 25 Pa. Code § 90.167(d), which will therefore require amendment to conform to the new section 6.1(i). PADEP unveiled an initial draft of proposed amendments to the chapter 90 regulations in advance of the March 16, 2020, meeting of the Mining and Reclamation Advisory Board (MRAB) that would revise section 90.167, in addition to other provisions of chapter 90. The proposed amendments may change based on feedback from MRAB at future meetings.
PADEP has not announced its expected time frame for publishing the proposed rule in the Pennsylvania Bulletin, at which point there will be a public comment period prior to publication of the final rule. The current draft of the proposed rule is available at https://www.dep.pa.gov/PublicParticipation/AdvisoryCommittees/Mining/MiningReclamation/Pages/ 2020.aspx.
EQB FINALIZES FEDERAL CONSISTENCY RULEMAKING
On March 14, 2020, the Pennsylvania Environmental Quality Board (EQB) published a final rule titled “Federal Office of Surface Mining Reclamation and Enforcement Program Consistency” in the Pennsylvania Bulletin. See 50 Pa. Bull. 1508 (Mar. 14, 2020). The rule, which was first proposed on October 27, 2018, amends Pennsylvania’s coal mining regulations at 25 Pa. Code chs. 86–90 to address inconsistencies with federal requirements. See Vol. XXXV, No. 4 (2018) of this Newsletter.
The Pennsylvania Department of Environmental Protection (PADEP) initiated these revisions in response to the Office of Surface Mining Reclamation and Enforcement’s (OSMRE) identification of several state regulations that required revision because they were not as effective as federal requirements. These amendments include:
- The word “augmented,” referring to “augmented seeding,” was removed from the state bonding requirements regulations at 25 Pa. Code § 86.151(d) to clarify that seeding does not restart the period of bond liability.
- Bonding requirements at 25 Pa. Code § 86.158(b) were revised to clarify that PADEP will determine the value of collateral bonds at market value, less any legal and liquidation costs, and will require additional bond if necessary with each permit renewal.
- The definition of “haul road” under the anthracite coal mining regulations at 25 Pa. Code § 88.1 was revised to clarify that the term includes public roads used as an integral part of the mining operation.
While PADEP noted that the following changes were not required by OSMRE, the final rule also revises the following provisions to make them consistent with federal requirements:
Alternative effluent limitations for underground mine passive treatment systems were removed from 25 Pa. Code § 89.52(f).
- The one-year time limit on temporary cessation of surface mining operations was removed from 25 Pa. Code § 87.157. Section 87.157 was further revised to include new provisions regarding information required to be submitted by the operator in connection with temporary cessation and the circumstances under which temporary cessation status would terminate.
- The definition of “surface mining activities” in 25 Pa. Code §§ 86.1 and 87.1 was revised to incorporate by reference the federal definition at 30 C.F.R. § 701.5. Pennsylvania’s regulations previously had a separate definition of surface mining activities that closely followed the federal definition.
- 25 Pa. Code § 86.193, relating to assessment of civil penalties, previously required PADEP to issue a penalty if the calculated penalty amount was $1,100 or more. This provision was revised to instead incorporate the federal system of requiring assessment of a penalty based on a points system, where points then correspond to a dollar amount.
Finally, the final rule also includes the following changes unrelated to federal consistency:
- Tables in 25 Pa. Code chs. 87, 88, and 89 used for calculating the amount of precipitation for a 24-hour storm event were removed and replaced with a reference to data available from the National Oceanic and Atmospheric Administration to reflect updated information. According to the final rule, this change will generally result in calculations of amounts of precipitation lower than what was previously listed in the tables.
- 25 Pa. Code § 86.281, relating to remining financial guarantees, was revised to clarify how PADEP calculates and maintains the amount of the financial guarantee. Section 86.282 was revised to state that an operator is not eligible to participate in the remining financial incentives program if it received a notice of violation related to maintaining bonds within the last three years.
- The definition of a “preferred site” for a coal refuse disposal facility in 25 Pa. Code § 90.201 was revised to include “an area adjacent to or an expansion of an existing coal refuse disposal site,” consistent with a 2010 amendment to the CRDCA.
The Pennsylvania Bulletin notice states that the final rule is effective immediately, although the official version of the regulations has not yet been updated to reflect the changes.
PADEP PRESENTS DRAFT CARBON TRADING REGULATIONS FOLLOWING RGGI MODEL
As previously reported, the Pennsylvania Department of Environmental Protection (PADEP) continues to work toward developing a rule to limit carbon dioxide (CO2) emissions from fossil fuel-fired electric power generators consistent with the Regional Greenhouse Gas Initiative (RGGI) Model Rule and Governor Tom Wolf’s October 2019 Executive Order No. 2019-07, 49 Pa. Bull. 6376 (Oct. 26, 2019). See Vol. XXXVII, No. 1 (2020); Vol. XXXVI, No. 4 (2019) of this Newsletter.
On February 13, 2020, PADEP presented its preliminary draft proposed rulemaking to establish a CO2 budget trading program to the Air Quality Technical Advisory Committee (AQTAC). See Presentation by PADEP to the AQTAC, “Pennsylvania’s Proposed CO2 Budget Trading Program” (Feb. 13, 2020). The draft proposed rule parallels the RGGI Model Rule with a few notable differences, including: (1) the draft proposed rule states that it is designed to reduce CO2 emissions “in a manner that is protective of public health, welfare and the environment and is economically efficient,” while the RGGI Model Rule only mentions economic efficiency in its statement of purpose; and (2) the draft proposed rule does not require the establishment of multi-state allowance auctions, as performed within RGGI, but gives PADEP discretion to hold Pennsylvania-only auctions if it determines, among other things, that its participation in a multi-state auction process would not provide more benefits than costs to Pennsylvania versus a statewide auction. The draft proposed rule is available at https://www.dep.pa.gov/Business/Air/BAQ/AdvisoryGroups/Air-Quality-Technical-Advisory-Commit-tee/Pages/default.aspx.
In response to requests for further opportunities to learn about the program, PADEP held a virtual special joint informational meeting with the AQTAC and the Citizens Advisory Council (CAC) on April 23, 2020. See Presentation by PADEP to the AQTAC, “IPM Modeling Results Discussion Reference Case and RGGI Policy Scenario” (Apr. 23, 2020). At this meeting PADEP presented the modeling results from consulting firm ICF International, Inc. associated with Pennsylvania’s participation in a CO2 budget trading program. PADEP proposes an initial CO2 baseline budget allowance of 78 million short tons of CO2, which would decrease by approximately 2.5 tons annually from 2022 to 2030. The budget of 58 million tons in 2030 would be a 25% decrease from 2020 emission levels.
PADEP asserted during the presentation that joining RGGI is critical to meet greenhouse gas reduction goals for Pennsylvania, and that Pennsylvania would realize “significant CO2 reductions” beginning in 2022 while remaining a leading electricity exporter at roughly historical generation levels for the commonwealth. PADEP also stated that wholesale energy prices would increase only slightly, and that Pennsylvania’s generation mix over the next decade would favor gas over coal. PADEP offered relatively little data in its presentation that would support these assertions.
Further information regarding the CO2 budget trading program regulation was presented at the May 7, 2020, AQTAC meeting, where the AQTAC members voted on the CO2 budget trading program and heard public comment on the proposal. The draft proposed rule was also discussed at the May 19 CAC meeting.
Despite the COVID-19 pandemic, PADEP has stated it still anticipates that the proposed rule will be presented to the EQB on July 21, 2020, and that it will open a public comment period in fall 2020. PADEP then anticipates presenting the final rule to the agency’s advisory committees in spring 2021 and to the EQB in summer 2021, with an anticipated effective date in fall 2021. We will continue to monitor this process and provide updates accordingly.
EPA ROLLS BACK OBAMA-ERA MERCURY RULE FOR COAL REFUSE-FIRED POWER PLANTS
On April 15, 2020, the U.S. Environmental Protection Agency (EPA) released a final rule that creates a new subcategory in the Mercury and Air Toxics Standards (MATS) for certain existing electric utility steam generating units (EGUs) firing eastern bituminous coal refuse (EBCR) and is only for emissions of acid gas hazardous air pollutants (HAPs). See National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired EGUs—Subcategory of Certain Existing EGUs Firing EBCR for Emissions of Acid Gas HAPs, 85 Fed. Reg. 20,838 (Apr. 15, 2020) (to be codified at 40 C.F.R. pt. 63). (EPA released a pre-publication version of another MATS rule entitled “National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review” on April 16, 2020. We do not address that rule here.) The new subcategory and emission standards will affect six existing EGUs (all small units operating in Pennsylvania or West Virginia) that fire EBCR. Id. at 20,847. These EBCR-fired EGUs achieved the new emission standards without the need for downstream acid gas controls. Id. at 20,846. The new emission standards will allow higher acid gas HAP emissions from these facilities compared to the emission standards in the 2012 MATS. Id. at 20,847.
In the original 2012 MATS, EPA determined that there was no basis for this subcategory and finalized hydrochloric acid and sulfur dioxide standards that apply to all coal-fired EGUs. See 77 Fed. Reg. 9304 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts. 60, 63). That rule was challenged and EPA received a petition for reconsideration of the rule, which was also the subject of a legal challenge. See White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014), rev’d sub nom. Michigan v. EPA, 135 S. Ct. 2699 (2015).
In a February 2019 proposed rule, EPA, based on reevaluation of data available when the 2012 MATS was established and new information, determined that there were differences in the HAP emissions of EGUs firing EBCR and those firing other types of coal (including those firing other types of coal refuse, such as anthracite coal refuse) and solicited comment on establishing a subcategory of certain existing EGUs firing EBCR for emissions of acid gas HAPs. See National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired EGUs—Reconsideration of Supplemental Finding and Residual Risk and Technology Review, 84 Fed. Reg. 2670 (proposed Feb. 7, 2019) (to be codified at 40 C.F.R. pt. 63). The April 15, 2020, final rule is the result of EPA’s determination, after reviewing public comments and other information submitted in response to the February 2019 proposal, that such a subcategory is warranted.
Copyright © 2020, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
