RMMLF Mineral Law Newsletter
(by Joe Reinhart, Sean McGovern, Daniel Hido and Gina Falaschi)
Pennsylvania’s Environmental Quality Board (EQB) published its proposed Regional Greenhouse Gas Initiative (RGGI) CO2 Budget Trading Program rule in the Pennsylvania Bulletin on November 7, 2020, which opened the public comment period for the rule. See 50 Pa. Bull. 6212 (Nov. 7, 2020). EQB hosted a number of virtual public hearings in December 2020 and accepted comment until January 14, 2021. EQB received more than 13,000 public comments on the proposed rule. Currently, the Independent Regulatory Review Commission (IRRC) is reviewing the proposed CO2 Budget Trading Program rule. The IRRC reviews regulations under the Regulatory Review Act to determine whether a proposed regulation is consistent with the authorizing statute and whether the regulation is in the public interest. While the IRRC has access to all public comments submitted to EQB regarding the proposed CO2 Budget Trading Program rule, the IRRC has also received a significant number of comments directly from legislators and the public. The IRRC’s comments, recommendations, or objections on the proposed regulation were due to the Pennsylvania Department of Environmental Protection by February 16, 2021.
A final regulation is expected later in 2021, at which time EQB will also release its responses to the public comments submitted on the proposed rule. The rule is tentatively scheduled to take effect in January 2022. For detailed descriptions of the content and implementation of the proposed rule, see Vol. XXXVII, No. 4 (2020), Vol. XXXVII, No. 3 (2020), Vol. XXXVII, No. 2 (2020), Vol. XXXVII, No. 1 (2020), Vol. XXXVI, No. 4 (2019) of this Newsletter.
Ozone Transport Commission Recommends Daily NOx Emission Limits at Coal-Fired Power Plants in Pennsylvania
On June 8, 2020, the U.S. Environmental Protection Agency (EPA) received a recommendation from the Ozone Transport Commission (OTC) that EPA require Pennsylvania to adopt daily limits on nitrogen oxide (NOX) emissions from coal-fired electric generating units (EGUs). See 85 Fed. Reg. 41,972 (July 13, 2020). The OTC oversees the administration of the Ozone Transport Region (OTR), which includes Connecticut, Delaware, Maine, Massachusetts, Maryland, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the District of Columbia, and parts of Virginia. The OTC and OTR were established as part of the 1990 amendments to the Clean Air Act (CAA) due to recognition that the transport of ozone and ozone precursors throughout the northeastern states may render the states’ attainment strategies interdependent.
The recommendation was submitted under section 184(c) of the CAA, which allows the OTC to develop, and submit to EPA, recommendations for additional control measures to be applied within all or a part of the OTR if such measures are necessary to bring any area in the OTR into attainment with national ambient air quality standards (NAAQS) for ozone by the applicable attainment deadlines. 42 U.S.C. § 7511c(c). Upon receipt, EPA must publish a notice in the Federal Register, hold a public hearing within 90 days of receipt, and make a determination within nine months approving or disapproving the recommendation. Id. If EPA determines that the measures in the recommendation are necessary to bring any area in the OTR into attainment, EPA will make a finding under CAA § 110(k)(5) that the state implementation plan (SIP) for that state is inadequate to meet the requirements of CAA § 110(a)(2)(D), often referred to as the “good neighbor provision.” Id. § 7410. EPA then requires each affected state to revise its SIP to include the approved additional control measures. Id. § 7511c(c)(5).
The OTC’s recommendation, dated June 5, 2020, suggests that EPA require Pennsylvania to adopt daily limits on NOX emissions from coal-fired EGUs with existing selective catalytic reduction (SCR) or selective non-catalytic reduction (SNCR) controls. The OTC recommends that these limits be at least as stringent as those in place for plants in Delaware, Maryland, and New Jersey to ensure that controls are optimized throughout the ozone season to help downwind states attain the ozone standard by the dates required in the CAA. The OTC provided its four main reasons for making this recommendation under CAA § 184(c): (1) several areas in the OTR are not expected to attain the 2015 ozone NAAQS by 2021; (2) research shows that large regional NOX reductions lower peak ozone across the eastern United States and that additional NOX reductions are needed for attainment of the 2008 and 2015 ozone NAAQS; (3) the OTC references EPA information identifying emissions from Pennsylvania as contributing to downwind nonattainment and includes estimates developed by Maryland of additional NOX reductions from Pennsylvania EGUs that could be achieved through daily NOX limits; and (4) the OTC decided to use the CAA § 184(c) process after a collaborative process resulted in some states adopting daily NOX limits, while Pennsylvania has not
EPA issued a Federal Register notice on July 13, 2020, that the OTC had submitted a recommendation, see 85 Fed. Reg. 41,972 (July 13, 2020), but delayed the public hearing, originally scheduled for September 4, 2020. On January 15, 2021, EPA issued a notice in the Federal Register announcing a virtual public hearing on February 2, 2021, and opening a public comment period. See 86 Fed. Reg. 4049 (Jan. 15, 2021). This notice also summarizes the OTC’s recommendations, provides additional information EPA believes will be relevant in reaching a decision, and requests input on various issues. Specifically, EPA requested comment regarding whether the Delaware, Maryland, and New Jersey regulations have been accurately summarized, how those regulations could be used as standards for evaluating a SIP revision submitted by Pennsylvania, and EPA’s authority under CAA § 184(c) to modify the OTC’s recommendation. EPA recently extended the public comment period on these issues until April 7, 2021. See 86 Fed. Reg. 10,267 (Feb. 19, 2021).
PADEP Publishes Draft Reissuance of General Permit for Stormwater Discharges Associated with Mining Activities
On January 9, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published notification of its intent to modify and reissue the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Associated with Mining Activities (GP-104). See 51 Pa. Bull. 241 (Jan. 9, 2021). The five-year term of the current GP-104 was set to expire on February 12, 2021, but was extended until the permit is reissued. According to PADEP, the revised GP-104 includes “extensive revisions” required by the U.S. Environmental Protection Agency (EPA) that will affect coal and non-coal mining operators. Notable proposed modifications to GP-104 include the following:
- Expiration of Permit Coverage. The current GP-104 provides authorization for five years from the date the operator obtains coverage. Under the revised GP-104, authorization would expire upon expiration of the general permit. In other words, an operator that obtains coverage in the middle of the permit term would only be authorized to discharge for the remainder of the term rather than a full five years. The Pennsylvania Bulletin notice states that operators with current GP-104 authorizations that expire after February 2021 will receive notice and the option to certify acceptance of the renewed GP-104 with no reapplication or fee required.
- Applicability. The revised GP-104 would clarify that activities authorized through a government-financed construction contract with PADEP would be eligible for coverage under the general permit. In contrast, the revised GP-104 would not authorize discharges to sediment-impaired waters or discharges that may result in discharges of toxic substances at levels that exceed applicable water quality criteria. The revised permit also clarifies that it does not apply to activities that may result in a discharge from underground mines, acid mine drainage, pumped groundwater, water used to refine or wash product, or stormwater that is commingled with such sources. See PADEP, Draft Approval of Coverage Under the General NPDES Permit for Stormwater Discharges Associated with Mining Activities, § 2(d) (rev. Jan. 2021). Operators ineligible for coverage under GP-104 would be required to obtain an individual NPDES permit.
- Effluent Limitations. GP-104 includes effluent limitations for pH, total suspended solids, and total settleable solids in part A of the permit. The current GP-104 includes instantaneous maximum, daily maximum, and 30-day average limits. The proposed GP-104 would eliminate the daily maximum and 30-day average limits and only require instantaneous maximum limits. The revised GP-104 would also include a new provision stating that the discharge must meet applicable total maximum daily loads and must not cause or contribute to an exceedance of applicable water quality standards. This provision would further enable PADEP to revoke the general permit at any time “if the status of a watershed or receiving stream changes,” in which case the operator would be required to apply for an individual permit. Id. § A(1)(c).
The proposed GP-104 would also make several revisions to the standard conditions in part B of the permit, including monitoring, recordkeeping, and reporting; modification or termination; civil and criminal penalties under the Clean Water Act; and certification requirements. The 30-day public comment period on the draft permit closed on February 8, 2021.
PADEP Invites Public Comments on Act 54 Report Regarding Effects of Mine Subsidence
On January 9, 2021, the Citizens Advisory Council (CAC) of the Pennsylvania Department of Environmental Protection (PADEP) published notice in the Pennsylvania Bulletin of a public comment period on the report entitled “The Effects of Subsidence Resulting from Underground Bituminous Coal Mining in Pennsylvania, 2013–2018” (2019) (Report). See 51 Pa. Bull. 241 (Jan. 9, 2021). The Act of June 22, 1994, P.L. 357, No. 54 (Act 54) amended the Bituminous Mine Subsidence and Land Conservation Act of 1966, 52 Pa. Stat. § 1406.18a, to require PADEP to compile data and report findings regarding the effects of underground mining on land, structures, and water resources. An Act 54 report is prepared and presented to the governor, the Pennsylvania General Assembly, and the CAC every five years. The current Report is the fifth report issued since the passage of Act 54. As reported in Vol. XXXVII, No. 1 (2020) of this Newsletter, the Report was finalized in 2019. The January 9, 2021, notice provides the opportunity for the regulated community and the public to comment on the final Report. Comments may be submitted through April 9, 2021.
The Report, compiled by the University of Pittsburgh, is approximately 225 pages long and nearly 1,000 pages with attachments. It describes the University’s findings regarding the effects of mine subsidence on land, structures, water supplies, hydrologic balance, groundwater, streams, and wetlands, and provides recommendations to PADEP.
- Land and Structure Damages. The Report identifies 124 reported impacts to land from underground mine subsidence, 66 of which were classified “Company Liable,” defined as a final resolution holding the mining company responsible for the damage. Report at 6-3, 6-18. The Report identifies reported structural effects at 455 of the 3,612 (15%) structures that were undermined from 2013 to 2018, with 247 of the reported effects classified as “Company Liable.” Id. at 4-2. Most of the identified impacts to land or structures were attributed to longwall mining.
- Water Supply Impacts. The Report identifies reported impacts, primarily loss of flow, to 379 of 2,353 (16%) water supplies in undermined areas during the assessment period, with 192 classified as “Company Liable.” This is a significant decrease from the 2008–2013 Act 54 Report, which identified 855 water supply impacts. Id. at 5-5; see Vol. XXXII, No. 1 (2015) of this Newsletter.
- Streams. The Report identifies approximately 81 miles of streams over 148 stream reaches that were undermined during the assessment period. The Report identifies approximately 52 miles (64%) of streams that were impacted by flow loss, pooling, or both. Overall, impacts were identified in approximately half of the stream reaches that were undermined during the assessment period. Report at 9-5.
- Hydrologic Balance and Groundwater. Generally, the Report notes that it is difficult to assess the effects of subsidence on hydrologic balance or groundwater. Id. at 7-2, 8-18. Thus, rather than discussing statistics involving specifically identified impacts, the Report discusses how certain data can be better utilized to assess such effects.
The Report concludes with 40 recommendations to PADEP, many of which relate to increasing data collection and usage to better evaluate the impact of mine subsidence on hydrologic balance, groundwater, streams, and wetlands. See id. at 12-1 to 12-10.
OSMRE Approves Updates to Pennsylvania Regulatory Program
The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) took two notable actions in its oversight of Pennsylvania’s mining program in the past quarter.
Approval of Amendments Regarding Effluent Limitations
On November 9, 2020, OSMRE published notice in the Federal Register of the agency’s approval of two amendments to Pennsylvania’s regulatory program that the Pennsylvania Department of Environmental Protection (PADEP) originally submitted to OSMRE in 2010. See 85 Fed. Reg. 71,251 (Nov. 9, 2020).
First, PADEP proposed to delete manganese from the Group B effluent limitation guidelines (ELGs) applicable during precipitation events. PADEP submitted the proposed amendment on its own initiative to bring state regulations current with the U.S. Environmental Protection Agency’s (EPA) ELGs applicable to the mining industry at 40 C.F.R. § 434.63. 85 Fed. Reg. at 71,253. OSMRE approved the amendment as consistent with federal requirements. Id. at 71,255. Manganese is still included in Group A ELGs, which apply in the absence of a precipitation event.
The second change involves PADEP regulations regarding passive treatment of post-mining pollutional discharges. The changes add definitions of “post-mining pollutional discharges” and “passive treatment” to 25 Pa. Code § 86.1. The amendments then set criteria for treating post-mining pollutional discharges based on levels of pH, acidity, and alkalinity, establish design standards for passive treatment system, and set alternate ELGs for post-mining pollutional discharges treated with passive treatment systems. 85 Fed. Reg. at 71,253–54.
OSMRE noted that federal regulations do not contain provisions that address post-mining pollutional discharges or the use of passive treatment systems. In support of the amendments, PADEP cited a January 28, 1992, memorandum from EPA to Pennsylvania that stated the effluent limitations applicable to the mining industry at 40 C.F.R. pt. 434 do not expressly apply to groundwater seeps and recommended PADEP establish effluent limitations for post-mining pollutional discharges using its best professional judgment (BPJ). Pennsylvania completed its BPJ analysis in 1994. 85 Fed. Reg. at 71,254–55.
In approving the amendments, OSMRE concluded that establishing regulations for the passive treatment of post-mining pollutional discharges is within PADEP’s authority under state law and is not inconsistent with federal requirements. However, OSMRE declined to approve the part of the definition of post-mining pollutional discharges that references the definition of “minimal impact post-mining discharges” in Pennsylvania’s Surface Mining Conservation and Reclamation Act, 52 Pa. Stat. § 1396.4, because, according to OSMRE, that statutory definition itself was never approved by OSMRE. 85 Fed. Reg. at 71,256–57.
The approximately 10-year delay in OSMRE approving the proposed amendments appears to be due in part to extensive comments from federal agencies and public interest groups on the proposed amendments. The history of the amendments is summarized in the Federal Register notice at pages 71,257–62.
Notice of Receipt of Federal Consistency Rulemaking
As reported in Vol. XXXVII, No. 2 (2020) of this Newsletter, on March 14, 2020, the Environmental Quality Board (EQB) published the final “Federal Office of Surface Mining Reclamation and Enforcement Program Consistency” rule in the Pennsylvania Bulletin. See 50 Pa. Bull. 1508 (Mar. 14, 2020). On December 17, 2020, OSMRE published notice in the Federal Register of these proposed changes to Pennsylvania’s regulatory program, which were submitted by PADEP on March 16, 2020. See 85 Fed. Reg. 81,864 (Dec. 17, 2020).
As discussed in further detail in the prior report, the proposed amendments include revisions to the determination of the value of collateral bonds, clarification that seeding does not restart the period of bond liability, and a revised definition of haul road under the anthracite mining regulations at 25 Pa. Code ch. 88. These revisions were required by OSMRE. The proposed changes also include the removal of the one-year time limit on temporary cessation of surface coal mining and anthracite mining operations under 25 Pa. Code chs. 87 and 88, respectively, changes to the calculation of civil penalties, and a revision to the definition of “surface mining activities” to incorporate by reference the federal definition at 30 C.F.R. § 701.5. These changes were not required by OSMRE but were made by PADEP for consistency with federal requirements. Finally, the March 2020 rulemaking included several changes unrelated to federal consistency, such as the definition of a preferred site for new coal refuse disposal facilities, calculation of remining financial guarantees and eligibility for remining financial incentives, and the procedure to calculate the amount of precipitation from a 24-hour storm event.
The public comment period on the proposed amendments closed on January 19, 2021. OSMRE will publish its decision on the proposed amendments in a forthcoming Federal Register notice.
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