E9-15542. Review and Approval of Projects

AGENCY:

Susquehanna River Basin Commission (SRBC).

ACTION:

Notice of proposed rulemaking and public hearing.

SUMMARY:

This document contains proposed rules that would amend project review regulations to include provisions specifically requiring Commission approval of projects undergoing Federal Energy Regulatory Commission (FERC) and Nuclear Regulatory Commission (NRC) licensing actions that affect the basin's water resources; restricting the use of docket reopening petitions to avoid abuses of process; amending the “Approval by Rule” (ABR) process to standardize ABR notice procedures and allow for project sponsors to utilize approved water sources at approved drilling pad sites without the need for modification of the ABR; clarifying that the public hearing requirement for rulemaking shall be applicable to the proposed rulemaking stage of that process; and further providing for the time period within which administrative appeals must be filed.

DATES:

Comments on these proposed rules may be submitted to the SRBC on or before August 15, 2009. The Commission has scheduled two public hearings on the proposed rules, to be held August 4, 2009, in Harrisburg, Pennsylvania, and August 5, 2009, in Elmira, New York. The locations of the public hearings are listed in the addresses section of this document. Additionally, individuals wishing to testify are asked to notify the Commission in advance, if possible, at the regular or electronic addresses given below.

ADDRESSES:

Comments may be mailed to: Mr. Richard A. Cairo, Susquehanna River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-2391, or by e-mail to [e-mail].

The public hearings will be held on Tuesday, August 4, 2009, at 10 a.m., at the Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101, and Wednesday, August 5, 2009, at 7 p.m., at the Holiday Inn—Elmira Riverview, 760 E. Water Street, Elmira, New York 14901. Those wishing to testify are asked to notify the Commission in advance, if possible, at the regular or electronic addresses given below.

FOR FURTHER INFORMATION CONTACT:

Richard A. Cairo, General Counsel, telephone: [phone], ext. 306; fax: [phone]; e-mail: [e-mail]. Also, for further information on the proposed rulemaking, visit the Commission's Web site at http://www.srbc.net.

SUPPLEMENTARY INFORMATION:

Background and Purpose of Amendments

The SRBC adopted final rulemaking on December 5, 2006, published at 71 FR 78570, December 29, 2006, establishing: (1) The scope and procedures for review and approval of projects under Section 3.10 of the Susquehanna River Basin Compact, Public Law 91-575; 83 Stat. 1509 et seq. (the compact); (2) special standards under Section 3.4 (2) of the compact governing water withdrawals, consumptive use of water; diversions of the basin's waters, water conservation, and water use registration; and (3) procedures for hearings, administrative appeals, and enforcement actions.

18 CFR 806.4(a) contains broad authority for the review and approval of water resources projects by the Commission, including projects on or crossing the boundary between two member States, projects in a member State having a significant effect on the water resources in another member State, and projects affecting the SRBC comprehensive plan. Nevertheless, there is no express provision in § 806.4 specifically requiring that projects affecting the water resources of the basin and undergoing licensing actions by the FERC or the NRC be approved by the Commission, although that is its current practice. To remove any uncertainty regarding the need for approval of such projects, the Commission proposes to insert language covering certain projects involved in FERC and NRC licensing procedures.

18 CFR 806.22(f), which was adopted by the Commission as a final rule on December 4, 2008, and published in the Federal Register on December 23, 2008, at p. 78618, provides an “Approval by Rule” (ABR) procedure for consumptive use related to natural gas well development that is separate from the pre-existing ABR process for projects supplied by public water systems, which is contained in 18 CFR 806.22(e). The Commission proposes to modify the public notice provisions related to both ABR provisions to make them consistent, and simplify the administration of the natural gas ABR procedure to allow project sponsors to utilize all approved sources at any approved drilling pad site without the need to register its own water source approvals or the need to modify each ABR issued for subsequently issued approvals. It also would allow for registration of other approved sources to allow for use at the project sponsor's approved drilling pad sites.

18 CFR 806.32 allows for the reopening of a project approval upon the motion of the Commission, or upon application of the project sponsor or any interested party for the purpose of making additional orders that may be necessary to mitigate or avoid adverse impacts or otherwise protect the public health, safety, and welfare or water resources. In two recent cases, interested parties whose § 808.2 administrative appeals were denied, then attempted to use § 806.32 to obtain administrative review of the same matter. The Commission believes that one administrative proceeding seeking relief on a particular issue is sufficient. Therefore the Commission proposes to amend § 806.32 to limit the filing of a petition to reopen where the matter has already been considered by the Commission in an administrative appeal proceeding under § 808.2.

18 CFR 808.1 sets forth the public hearing requirements for various commission actions, including rulemaking. It is the practice of the Commission to meet this public hearing requirement at the proposed rulemaking stage. However, the current regulation does not make this intent clear, referring only to “rulemaking.” To clarify the rule and make it consistent with the Commission's current practice, new language is added to § 808.1(a)(2) and 808.1(c).

Finally, 18 CFR 808.2 9(a) specifies that an administrative appeal shall be filed within 30 days of the action or decision of the Commission or Executive Director. In the case of appeals of project approvals, however, the Commission believes that due process safeguards require that the appeal period run from the time constructive notice of the action is given by the Commission for aggrieved persons other than the project sponsor. Therefore, the Commission proposes to amend this provision to allow an appeal period of 30 days from the date a notice of a project approval appears in the Federal Register. For project sponsors, the 30 day appeal period would run from the date of receipt of actual notice.

List of Subjects in 18 CFR Parts 806 and 808

• Administrative practice and procedure
• Water resources

Accordingly, for the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR Parts 806 and 808 as follows:

PART 806—REVIEW AND APPROVAL OF PROJECTS

Subpart C—Standards for Review and Approval

1. The authority citation for Part 806 continues to read as follows:

Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 et seq.

2. In § 806.4, revise paragraphs (a)(7) and (a)(8) and add paragraph (a)(9) to read as follows:

§ 806.4

Projects requiring review and approval.

(a) * * *

(7) Any hydroelectric project regulated by the United States Federal Energy Regulatory Commission and initiating a licensing or license amendment process pursuant to 18 CFR Part 4 that may affect the water resources of the basin.

(8) Any nuclear power project regulated by the United States Nuclear Regulatory Commission and initiating a licensing, renewal, license amendment or license uprate process pursuant to 10 CFR Part 55 that may affect the water resources of the basin.

(9) Any other project so determined by the Commissioners or Executive Director pursuant to § 806.5 or 18 CFR part 801. Such project sponsors shall be notified in writing by the Executive Director.

* * * * *

2. In § 806.22, revise paragraphs (e)(1)(i)(B), (e)(1)(ii)(f)(2), (f)(3), (f)(11) and add paragraph (f)(12) to read as follows:

§ 806.22

Standards for consumptive use of water.

* * * * *

(e) * * *

(1) * * *

(i) * * *

(B) Send a copy of the NOI to the appropriate agencies of the member State, and to each municipality and county in which the project is located. The project sponsor shall submit a copy of the United States Postal Service return receipt, or other proof of service acceptable to the Commission, for such notifications within 10 days of submittal of the NOI.

(ii) Within 10 days after submittal of an NOI under paragraph (e)(1)(i) of this section, the project sponsor shall submit to the Commission proof of publication in a newspaper of general circulation in the location of the project, a display ad notice of its intent to operate under an approval by rule, which contains a sufficient description of the project, its purpose, the proposed public water supply source(s), the requested consumptive use amount and its location. This notice shall also contain the address, electronic mail address and telephone number of the Commission. The Commission may further prescribe the form and manner of such notice.

* * * * *

(f) * * *

(2) Notification of Intent: Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a Notice of Intent (NOI) on forms prescribed by the Commission, and the appropriate fee, along with any required attachments. The project sponsor shall send a copy of the NOI to the appropriate agencies of the member State, and to each municipality and county in which the project is located. The project sponsor shall submit a copy of the United States Postal Service return receipt, or other proof of service acceptable to the Commission, for such notifications within 10 days of submittal of the NOI.

(3) Within 10 days after submittal of an NOI under paragraph (f)(2) of this section, the project sponsor shall submit to the Commission proof of publication in a newspaper of general circulation in the location of the project of a display ad notice of its intent to operate under an approval by rule, which contains a sufficient description of the project, its purpose, any new proposed water source(s), the requested consumptive use amount and its location. This notice shall also contain the address, electronic mail address and telephone number of the Commission. The Commission may further prescribe the form and manner of such notice.

* * * * *

(11) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize any water source approved for use by the project sponsor for natural gas well development pursuant to §§ 806.4 or this section, at the applicable drilling pad site subject to any approval or authorization required by the member State to utilize such source(s).

(12) The following additional sources of water may be utilized by a project sponsor in conjunction with an approval by rule issued pursuant to paragraph (f)(9) of this section:

(i) Water withdrawals or diversions approved by the Commission pursuant to § 806.4(a) and issued to persons other than the project sponsor, provided any such source is approved for use in natural gas well development, the project sponsor has an agreement for its use, and at least 10 days prior to use, the project sponsor registers such source with the Commission on a form and in a manner as prescribed by the Commission, and provides a copy of same to the appropriate agency of the member State.

(ii) Sources of water other than those subject to paragraph (f)(12)(i) of this section, including, but not limited to, public water supply, wastewater discharge or other reclaimed waters, provided such sources are first approved by the Executive Director pursuant to this section. Any request to utilize such source(s) shall be submitted on a form and in a manner as prescribed by the Commission, and shall be subject to review pursuant to the standards set forth in subpart C of this part. Any approval issued hereunder shall be further subject to any approval or authorization required by the member State to utilize such source(s). The notice requirements related to agencies of member States, municipalities and counties contained in paragraph (f)(2) of this section, and the notice requirements contained in paragraph (f)(3) of this section, shall likewise be applicable to any request submitted hereunder.

Subpart D—Terms and Conditions of Approval

3. In § 806.32, revise paragraph (a) to read as follows:

§ 806.32

Reopening/modification.

(a) Once a project is approved, the Commission, upon its own motion, or upon petition of the project sponsor or any interested party, may at any time reopen any project approval and make additional orders or otherwise modify or impose such additional conditions that may be necessary to mitigate or avoid adverse impacts or to otherwise protect the public health, safety, and welfare or water resources. Whenever a petition for reopening is filed by an interested party, the burden shall be upon that interested party to show, by a preponderance of the evidence, that a significant adverse impact or a threat to the public health, safety and welfare or water resources exists that warrants reopening of the docket. Notwithstanding the foregoing, any petition filed by a party who previously sought the same or similar relief identified in the petition pursuant to the administrative appeals process under § 808.2 will not be eligible for consideration by the Commission absent new facts not known or readily discernable at the time of consideration of the petitioner's previous request for administrative appeal filed pursuant to § 808.2.

* * * * *

PART 808—HEARINGS AND ENFORCEMENT ACTIONS

Subpart A—Conduct of Hearings

4. The authority citation for Part 808 continues to read as follows:

Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 et seq.

5. In § 808.1, revise paragraphs (a)(2) and (c) to read as follows:

§ 808.1

Public hearings.

(a) * * *

(2) Proposed rulemaking.

* * * * *

(c) Notice of public hearing. At least 20 days before any public hearing required by the compact, notices stating the date, time, place and purpose of the hearing including issues of interest to the Commission shall be published at least once in a newspaper of general circulation in the area affected. Occasions when public hearings are required by the compact include, but are not limited to, amendments to the comprehensive plan, drought emergency declarations, and review and approval of diversions. In all other cases, at least 10 days prior to the hearing, notice shall be posted at the office of the Commission (or on the Commission Web site), mailed by first class mail to the parties who, to the Commission's knowledge, will participate in the hearing, and mailed by first class mail to persons, organizations and news media who have made requests to the Commission for notices of hearings or of a particular hearing. With regard to rulemaking, the Commission shall convene at least one public hearing on any proposed rulemaking it approves for public review and comment. For any such hearing(s), notices need only be forwarded to the directors of the New York Register, the Pennsylvania bulletin, the Maryland Register and the Federal Register, and it is sufficient that this notice appear only in the Federal Register at least 20 days prior to the hearing and in each individual State publication at least 10 days prior to any hearing scheduled in that State.

6. In § 808.2, revise paragraph (a) to read as follows:

§ 808.2

Administrative appeals.

(a) A project sponsor or other person aggrieved by any action or decision of the Commission or Executive Director may file a written appeal requesting a hearing. Except with respect to project approvals or denials, such appeal shall be filed with the Commission within 30 days of the action or decision. In the case of a project approval or denial, such appeal shall be filed by a project sponsor within 30 days of receipt of actual notice, and by all others within 30 days of publication of notice of the action taken on the project in the Federal Register.

Dated: June 18, 2009.

Paul O. Swartz,

Executive Director.