[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Proposed Rules]
[Pages 24158-24162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10278]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-085-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The program amendment consists of 
changes to the West Virginia regulations (38 CSR 2) contained in House 
Bill 4223, and changes to the Code of West Virginia contained in Senate 
Bill 614. The amendments are intended to comply with the Consent Decree 
between the plaintiff and the West Virginia Division of Environmental 
Protection (WVDEP) entered on February 17, 2000, in the matter of Bragg 
v. Robertson, No. 2:98-636 (S.D.W.Va.).

DATES: If you submit written comments, they must be received on or 
before 4 p.m. (local time), on May 25, 2000. If requested, a public 
hearing on the proposed amendments will be held at 1 p.m. (local time), 
on May 22, 2000. Requests to speak at the hearing must be received by 4 
p.m. (local time), on May 10, 2000.

ADDRESSES: Mail or hand-deliver your written comments and requests to 
speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston 
Field Office at the address listed below.
    You may review copies of the West Virginia program, the proposed 
amendment, a listing of any scheduled

[[Page 24159]]

hearings, and all written comments received in response to this 
document at the addresses below during normal business hours, Monday 
through Friday, excluding holidays. You may receive one free copy of 
the proposed amendment by contacting OSM's Charleston Field Office.

Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301 Telephone: (304) 347-7158. E-mail: 
<a href="/cdn-cgi/l/email-protection#2c4f444a436c435f415e49024b435a"><span class="__cf_email__" data-cfemail="593a313f3619362a342b3c773e362f">[email protected]</span></a>.
West Virginia Division of Environmental Protection, 10 McJunkin Road, 
Nitro, West Virginia 25143, Telephone: (304) 759-0515. The proposed 
amendment will be posted at the Division's Internet page: http://www.dep.state.wv.us.

    In addition, you may review copies of the proposed amendment during 
regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West 
Virginia 26507, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office; Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. You can find background information 
on the West Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the January 
21, 1981, Federal Register (46 FR 5915-5956). You can find later 
actions concerning the conditions of approval and program amendments at 
30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amendment

    By letters dated March 14, 2000 (Administrative Record Number WV-
1147) and March 28, 2000 (Administrative Record Number WV-1148), and 
electronic mail dated April 6, 2000 (Administrative Record Number WV-
1149), the WVDEP submitted an amendment to its program. The amendment 
concerns changes to the West Virginia regulations made by the State 
legislature in House Bill 4223, and changes made to the Code of West 
Virginia in Senate Bill 614. Many of the amendments are intended to 
comply with the Consent Decree between the plaintiff and the West 
Virginia Division of Environmental Protection entered on February 17, 
2000, in the matter of Bragg v. Robertson, No. 2:98-636 (S.D.W.Va.).
    The amendments submitted by the WVDEP are identified below.

A. Senate Bill 614

    Numerous wording and paragraph notation changes have been made. 
These are nonsubstantive changes that will not be discussed. The 
substantive changes are identified below.
    1. W.Va. Code 22-3-3. Definitions.
    At Sec. 22-3-3(e) the definition of ``approximate original 
contour'' (AOC) is amended by deleting the word ``disturbed'' and 
adding in its place the word ``mined.'' As amended, AOC ``means that 
surface configuration achieved by the backfilling and grading of the 
``mined'' areas * * *.''
    At Sec. 22-3-3(u) (2), the definition of ``surface mine,'' 
``surface-mining'' or ``surface-mining operations'' is amended by 
deleting the word ``may'' in the sentence immediately before 
subdivision (i), and replacing that word with the word ``does.'' As 
amended, the sentence reads: ``Surface-mining does not include any of 
the following: * * *.''
    At Sec. 22-3-3(y), the definition of ``lands eligible for 
remining'' is amended in the second sentence by deleting the word 
``may'' and adding in its place the word ``do.'' As amended, the 
sentence reads: ``Surface-mining operations on lands eligible for 
remining ``do'' not affect the eligibility * * *.''
    2. W.Va. Code 22-3-13 General environmental protection performance 
standards for surface mining; variances.
    At Sec. 22-3-13(c)(3), concerning mountaintop removal mining 
operations, the list of approvable postmining land uses is amended as 
follows. In the first sentence, the word ``woodland'' is deleted, the 
words ``commercial forestry'' are added, the words ``or fish and 
wildlife habitat and recreation lands use'' are deleted, the word 
``facility'' and the words ``including recreational uses'' are added. 
As amended, the sentence reads as follows: ``In cases where an 
industrial, commercial, agricultural, commercial forestry, residential, 
public facility including recreational uses is proposed for the 
postmining use of the affected land * * *.''
    In addition, a new subdivision Sec. 22-3-13(c)(3)(iii) is added to 
read as follows. ``(iii) obtainable according to data regarding 
expected need and market.'' The previously existing subdivision (iii) 
is renumbered as subdivision (iv), and so on.
    3. W.Va. Code 22-3-23 Release of bond or deposits; application; 
notice; duties of director; public hearings; final maps on grade 
release.
    At subsection Sec. 22-3-23(c), a new subdivision (c)(1) is added to 
read as follows. ``(1) For all operations except those with an approved 
variance from approximate original contour:'' Previously existing 
subdivisions (c)(1), (2), and (3) have been relettered as (c)(1)(A), 
(B), and (C). As amended, Sec. 22-3-23(c)(1) applies only to operations 
that do not have an approved variance from the AOC requirements.
    New subsection Sec. 22-3-23(c)(2) is added to specify the bond 
release requirements that apply only to operations with an approved 
variance from the AOC requirements.

B. House Bill 4223

    1. CSR 38-2-2.31. Definition of commercial forestry and forestry. 
This new definition is added to read as follows.

    2.31.a. Commercial Forestry, as used in Subsection 7.4 of this 
rule, means a long-term postmining land use designed to accomplish 
the following: (1) Achieve greater forest productivity than that 
found on the mine site before mining; (2) Minimize erosion and/or 
sediment yield and serve the hydrologic functions of infiltrating, 
holding, and yielding water commonly found in undisturbed forests; 
(3) Result in biodiversity by facilitating rapid recruitment of 
native species of plants and animals via the process of natural 
succession; (4) Result in a premium forest that will thrive under 
stressful conditions; and (5) Result in landscape, vegetation and 
water resources that create habitat for forest-dwelling wildlife.
    2.31.b. Forestry, as used in Subsection 7.4 of this rule, means 
a long-term postmining land use designed to accomplish the 
following: (1) Achieve forest productivity equal to that found on 
the mine site before mining; (2) Minimize erosion and/or sediment 
yield and serve the hydrologic functions of infiltrating, holding, 
and yielding water commonly found in undisturbed forests; (3) Result 
in biodiversity by facilitating rapid recruitment of native species 
of plants and animals via the process of natural succession; and (4) 
Result in landscape, vegetation and water resources that create 
habitat for forest-dwelling wildlife.

    2. CSR 38-2-2.31. Definition of downslope.
    This definition is amended by deleting the words ``except in

[[Page 24160]]

operations where the entire upper horizon above the lowest coal seam is 
proposed to be partly or entirely removed.'' As amended, ``downslope'' 
means the land surface between the projected outcrop of the lowest coal 
seam being mined along each highwall, or any mining-related 
construction, and the valley floor.
    3. CSR 38-2-2.98. Definition of prospecting.
    This definition is amended by deleting the word ``substantial'' 
before the word ``disturbance'' in the first sentence. The effect of 
this deletion is that the definition of ``prospecting'' is no longer 
limited to those activities that cause ``substantial'' disturbance.
    4. CSR 38-2-2.123  Definition of substantially disturb.
    This definition is amended by deleting the word ``and'' after the 
words ``significantly impact land,'' and adding in its place the word 
``or.'' With this change, substantially disturb means to significantly 
impact land or water resources.
    5. CSR 38-2-2.136  Definition of woodlands.
    This definition is deleted.
    6. CSR 38-2-3.8.c  Structures and support facilities.
    This subsection is amended by adding a concluding sentence which 
reads as follows. ``This exemption shall not apply to new and existing 
coal waste facilities.''
    7. CSR 38-2-3.25  Transfer, assignment, or sale of permit rights 
and obtaining approval.
    This subsection is amended by adding the term ``reinstatement'' in 
the title of the subsection, and in four locations where the phrase 
``transfer, assignment, or sale'' appears. In addition, subdivision 
3.25.b. is amended by adding a sentence which states that, ``as a 
condition of reinstatement, the Director may require a modification to 
the mining and reclamation plan.'' With this amendment, the provisions 
of CSR 38-2-3.25 will apply to reinstated permits.
    8. CSR 38-2-7.2.i  Commercial woodland.
    This provision is amended by deleting the word ``woodland'' from 
the land use category ``commercial woodland,'' and adding in its place 
the word ``forestry.'' The effect of this change is that ``commercial 
forestry'' is where forest cover is managed for commercial production 
of timber.
    9. CSR 38-2-7.3  Criteria for approving alternative postmining use 
of land.
    New subdivision 7.3.c. is added to provide that: ``A change in 
postmining land use to grassland uses such as rangeland and/or hayland 
or pasture is prohibited on operations that obtain an approximate 
original contour variance described in WV Code Sec. 22-3-13(b)(25)(c). 
Provided, however, That this subdivision is not effective until 
Sections 7.4 and 7.5 of this rule are approved by the federal Office of 
Surface Mining.''
    10. CSR 38-2-7.4  Standards applicable to approximate original 
contour variance operations with a postmining land use of commercial 
forestry and forestry.
    This provision is new and contains the following subsections:
    7.4.a. Applicability. This provision applies to commercial forestry 
and forestry as defined at CSR 38-2-2.31 (see item B. 1. above).
    7.4.b. Requirements. This subsection contains requirements 
concerning planting and management plan development, oversight 
procedures, landscape criteria, soil and soil substitutes, soil 
placement and grading, liming and fertilizing, ground cover vegetation, 
tree species and compositions, standards of success, and front faces of 
valley fills.
    11. CSR 38-2-7.5  Homestead land use.
    This subsection is new and contains the following subdivisions. 
Subdivision 7.5.a., requires that the minimum area for a homestead 
shall be at least one-half of the permit area. The remainder of the 
permit area shall support an alternate AOC variance use.
    Subdivision 7.5.b. concerns the terms applicable only to homestead 
land use.
    Subdivision 7.5.c. concerns the eligibility requirements and 
responsibilities for homesteaders.
    Subdivision 7.5.d. concerns the rules for the homestead lottery.
    Subdivision 7.5.e. concerns the homestead plan development.
    Subdivision 7.5.f. concerns the provisions for financial 
commitments.
    Subdivision 7.5.g. concerns the required elements for all homestead 
plans.
    Subdivision 7.5.h. concerns the construction and conveyance of 
homestead parcels.
    Subdivision 7.5.i. concerns required infrastructure.
    Subdivision 7.5.j. concerns soils, soil placement and grading.
    Subdivision 7.5.k. concerns requirements for reclamation maps.
    Subdivision 7.5.l. concerns homestead village.
    Subdivision 7.5.m. concerns community association.
    Subdivision 7.5.n. concerns interim homestead management.
    Subdivision 7.5.o. concerns bond release.
    12. CSR 38-2-14.12.  Variance from AOC requirements.
    This provision is amended at subdivision 14.12.a.1. to delete the 
word ``woodlands'' and add in its place the words ``commercial 
forestry.''
    13. CSR 38-2-14.15 Contemporaneous reclamation standards.
    This provision is amended at subdivision 14.15.f. concerning 
variance-permit applications to add a sentence which reads as follows: 
``Furthermore, the amount of bond for the operation shall be the 
maximum per acre specified in WV Code Sec. 22-3-12(c)(1).''

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments, on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the West Virginia program.

Written Comments

    If you submit written or electronic comments on the proposed 
amendment during the 30-day comment period, they should be specific, 
should be confined to issues pertinent to the notice, and should 
explain the reason for your recommendation(s). We may not be able to 
consider or include in the Administrative Record comments delivered to 
an address other than the one listed above (see ADDRESSES).

Electronic Comments

    Please submit Internet comments as an ASCII, Word Perfect, or Word 
file avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: SPATS NO. WV-085-FOR'' and your name and 
return address in your Internet message. If you do not receive a 
confirmation that we have received your Internet message, contact the 
Charleston Field office at (304) 347-7158.

Availability of Comments

    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during our 
regular business hours at the OSM Administrative Record Room (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the rulemaking record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the rulemaking record a respondent's identity, as 
allowable by law. If you wish us to withhold your

[[Page 24161]]

name and/or address, you must state this prominently at the beginning 
of your comment. However, we will not consider anonymous comments. We 
will make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Public Hearing

    If you wish to speak at the public hearing, you should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local 
time), on May 10, 2000. The location and time of the hearing will be 
arranged with those persons requesting the hearing. If no one requests 
an opportunity to speak at the public hearing, the hearing will not be 
held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who testifies at a public 
hearing provide us with a written copy of his or her testimony. The 
public hearing will continue on the specified date until all persons 
scheduled to speak have been heard. If you are in the audience and have 
not been scheduled to speak and wish to do so, you will be allowed to 
speak after those who have been scheduled. We will end the hearing 
after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. If you wish 
to meet with OSM representatives to discuss the proposed amendment, you 
may request a meeting by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT. All such meetings will be open to the public and, 
if possible, notices of meetings will be posted at the locations listed 
under ADDRESSES. A written summary of each meeting will be made a part 
of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific state, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed state regulatory programs and program amendments 
submitted by the states must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that 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 
counterpart 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.
    Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the state. 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 counterpart federal regulation.

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.
    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 upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 24162]]


    Dated: April 7, 2000.
John A. Holbrook,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-10278 Filed 4-24-00; 8:45 am]
BILLING CODE 4310-05-P


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