26130 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

Substances Limitations

*******

Alkylthiophenolics: For use only:

1. Acid-catalyzed condensation reaction products of 4-nonylphenol,

formaldehyde, and 1-dodecanethiol (CAS Reg. No. 164907–73–7).

1. At levels not to exceed 2 percent by weight of adhesives complying

with § 175.105 of this chapter, of pressure-sensitive adhesives complying with § 175.125 of this chapter, and of rubber articles complying with § 177.2600 of this chapter.

2. Acid-catalyzed condensation reaction products of branched 4-

nonylphenol, formaldehyde, and 1-dodecanethiol (CAS Reg. No.

203742–97–6).

2. Do.

*******

Dated: April 25, 2000.

L. Robert Lake,

Director of Regulations and Policy, Center

for Food Safety and Applied Nutrition.

[FR Doc. 00–11201 Filed 5–4–00; 8:45 am]

BILLING CODE 4160–01–F

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–080–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: OSM is approving, with

certain exceptions, amendments to the

West Virginia permanent regulatory

program (hereinafter referred to as the

West Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of the revisions to

the West Virginia Surface Mining

Reclamation Regulations. The

amendments are intended to improve

the operational efficiency of the West

Virginia program.

EFFECTIVE DATE: May 5, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Roger W. Calhoun, Director, Charleston

Field Office, 1027 Virginia Street East,

Charleston, West Virginia 25301.

Telephone: (304) 347–7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

II. Submission of the Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the West Virginia

Program

The Secretary of the Interior

conditionally approved the West

Virginia program on January 21, 1981.

You can find background information

on the West Virginia program, including

the Secretary’s findings, the disposition

of comments, and the conditions of the

approval in the January 21, 1981,

Federal Register at 46 FR 5915–5956.

Subsequent actions concerning the West

Virginia program and previous

amendments are codified at 30 CFR

948.10, 948.12, 948.13, 948.15, and

948.16.

II. Submission of the Amendment

By letter dated May 11, 1998

(Administrative Record Number WV

1086), the West Virginia Division of

Environmental Protection (WVDEP)

submitted an amendment to its

approved regulatory program pursuant

to the Federal regulations at 30 CFR

732.17(b). The amendment consists of

revisions to CSR 38–2, the State’s

Surface Mining Reclamation

Regulations, which the Governor signed

on April 12, 1998.

We published the proposed

rulemaking in the Federal Register on

June 15, 1998 (63 FR 32632). The public

comment period closed on July 15,

1998. Since no one requested an

opportunity to speak at a public hearing,

we did not hold a hearing.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings concerning the amendments to

the West Virginia regulatory program.

1. CSR 38–2–2 Definitions

West Virginia is amending the

definition of ‘‘Coal Remining

Operation’’ in CSR 38–2–2.25 to mean a

coal mining operation on lands which

would be eligible for expenditures

under section 22–2–4 of the West

Virginia Surface Coal Mining and

Reclamation Act (WVSCMRA). Section

22–2–4(c) provides that lands and water

eligible for reclamation are those which

were mined for coal or which were

affected by the mining, waste banks,

coal processing or other coal mining

processes, and abandoned or left in an

inadequate status prior to August 3,

1977, and for which there is no

continuing reclamation responsibility.

This language is substantively identical

to the corresponding Federal provision

in section 404 of SMCRA. Section 22–

2–4(c) also includes certain lands for

which bond forfeiture proceeds are

inadequate to completely reclaim the

site, as authorized by section 402(g)(4)

of SMCRA. Hence, the State definition

is substantively identical to the Federal

definition of ‘‘lands eligible for

remining’’ at 30 CFR 701.5, which

provides that the term ‘‘means those

lands that would otherwise be eligible

for expenditures under section 404 or

under section 402(g)(4) of the Act.’’

The State also is amending the

definition of ‘‘Remined Area’’ in CSR

38–2–2.102 to mean the area of any coal

remining operation. This definition has

no precise Federal counterpart, but we

find that it is not inconsistent with the

Federal definition of ‘‘lands eligible for

remining’’ at 30 CFR 701.5 or any other

SMCRA-related provision. Hence, it can

be approved.

2. CSR 38–2–3.14 Removal of

Abandoned Coal Refuse Disposal Piles

West Virginia has revised paragraphs

a. and b. of subsection 3.14 by replacing

the term ‘‘special permit’’ with the term

‘‘reclamation contract’’ and by replacing

‘‘permit application’’ and ‘‘application’’

with ‘‘request.’’ The State also made

numerous other revisions to this

subsection. For the reasons set forth

below, these revisions need not be

discussed here.

Subsection 3.14 authorizes the State

to issue reclamation contracts ‘‘solely

for the removal of existing abandoned

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26131

coal processing waste piles.’’ It further

provides that, ‘‘if the average quality of

the refuse material meets the minimum

BTU value standards to be classified as

coal, as set forth in ASTM Standard D

388–88, a request which meets all

applicable requirements of this section

shall be required.’’ In addition,

subsection 3.14.c. implies that the State

may issue a reclamation contract for

operations that involve on-site

reprocessing of abandoned coal refuse

piles.

While we approved previous versions

of subsection 3.14, our approval was

limited to the removal of abandoned

refuse piles that do not meet the

definition of coal in 30 CFR 700.5. For

example, in 1990, at 30 CFR

948.12(k)(4), we disapproved the initial

version of subsection 3.14 ‘‘to the extent

that it applies to the removal of

abandoned coal mine refuse piles where

the material being removed meets the

definition of coal (ASTM Standard D

388 77).’’ 55 FR 21304, 21313–14, May

23, 1990. We based that decision on the

definition of ‘‘surface coal mining

operations’’ in 30 CFR 700.5, which

specifically includes ‘‘the extraction of

coal from coal refuse piles.’’ The term

‘‘extraction’’ includes both the removal

of coal refuse material that already

meets the definition of coal and the onsite reprocessing of coal refuse to

separate coal from waste rock and other

materials. SMCRA and the Federal

regulations do not establish lesser

permitting requirements for the

extraction of coal from coal refuse piles

than they do for other types of remining

operations.

Subsection 3.14 is less stringent than

SMCRA and less effective than the

Federal regulations because it would

allow the issuance of a reclamation

contract for the removal of coal refuse

piles that meet the definition of coal

rather than requiring that such

operations obtain a standard regulatory

program permit for surface coal mining

operations as do the Federal regulations.

In addition, subsection 3.14.c. is less

stringent than SMCRA and less effective

than the Federal regulations to the

extent that it may be interpreted as

authorizing the State to issue a

reclamation contract rather than a

surface coal mining operations permit

for on-site reprocessing operations. As

discussed above, under the Federal

definition of surface coal mining

operations in 30 CFR 700.5, all on-site

reprocessing operations that separate

coal from other materials in the pile

must be regulated as surface coal mining

operations.

Therefore, we are not approving

subsection 3.14 to the extent that it

would apply to the removal of

abandoned coal mine refuse piles

where, on average, the material to be

removed meets the definition of coal in

30 CFR 700.5. In addition, we are not

approving subsection 3.14 to the extent

that it could be interpreted as applying

to the on-site reprocessing of abandoned

coal refuse piles.

Otherwise, we take no position on the

revisions that West Virginia has made to

subsection 3.14. As we stated in 1990,

‘‘the removal, transport and use

(without onsite reprocessing) of coal

mine refuse which does not meet the

definition of ‘coal’ set forth in 30 CFR

700.5; i.e., ASTM Standard D 388–77, is

not subject to regulation [under

SMCRA].’’ 55 FR 21314, May 23, 1990.

Consistent with this decision, we are

requiring that West Virginia amend its

program to either: (1) Delete subsection

3.14; or (2) revise subsection 3.14 to

clearly specify that its provisions apply

only to activities that do not qualify as

surface coal mining operations as that

term is defined in 30 CFR 700.5; i.e.,

that subsection 3.14 does not apply to

either the removal of abandoned coal

mine waste piles that, on average, meet

the definition of coal or to the on-site

reprocessing of coal mine waste piles. If

the State chooses the second option, it

should also submit the sampling

protocol that will be used to determine

whether the refuse piles meet the

definition of coal. The sampling

protocol must be designed to ensure that

no activities meeting the definition of

surface coal mining operations escape

regulation under the State counterpart

to SMCRA and the Federal regulations.

The previous discussion

notwithstanding, the removal or

reprocessing of any coal refuse pile may

qualify for the government-financed

construction exemption under section

528(2) of SMCRA. Section 528(2) of

SMCRA states that SMCRA shall not

apply to the extraction of coal as an

incidental part of Federal, State, or local

government-financed highway or other

construction under regulations

established by the regulatory authority.

Section 22–3–26(b) of the WVSCMRA

contains a similar provision.

The Federal regulations at 30 CFR

part 707 provide the standards for

implementing SMCRA section 528(2).

Essentially, part 707 provides that, to be

exempt from regulation as a surface coal

mining operation under SMCRA, coal

extraction must be a component of a

government-financed construction

project, and the extraction of coal must

be incidental to the construction. CSR

38–2–3.31 is the approved West Virginia

program regulation governing

government-financed highway or other

construction exemptions that are

exempt from the provisions of

WVSCMRA.

On February 12, 1999 (64 FR 7469–

83), we amended the definition of

‘‘government-financed construction’’ at

30 CFR 707.5 to provide that

government funding of less than 50

percent of a project’s costs may qualify

if the construction is undertaken as an

approved abandoned mine reclamation

project under Title IV of SMCRA. We

also added 30 CFR 874.17, which

establishes requirements and

procedures for reclamation projects

receiving less than 50 percent

government funding. The West Virginia

program lacks counterparts to the

revised Federal definition of

‘‘government-financed construction’’ at

30 CFR 707.5 and the Federal

regulations at 30 CFR 874.17. Therefore,

at present, the government-financed

construction exemption is not available

to West Virginia projects with less than

50 percent government financing.

3. CSR 38–2–3.32 Findings—Permit

Issuance

Subsection 3.32.d.12 is amended by

replacing the reference to former

subsection 14.16 with a reference to

new section 24, where the performance

standards applicable only to remining

operations have been relocated. We find

this change to be a non-substantive

organizational revision that does not

render the State program less stringent

than SMCRA or less effective than the

Federal regulations.

In addition, West Virginia is replacing

the phrase ‘‘and prior to August 3,

1977’’ with ‘‘would be eligible for

expenditures under Section 4, Article 2

of Chapter 22.’’ We find that this

revision is approvable because it is

consistent with the Federal definition of

‘‘lands eligible for remining’’ at 30 CFR

701.5, a term that appears in 30 CFR

773.15(c)(13), the Federal counterpart to

the West Virginia provision.

West Virginia also proposes to add

subsection 3.32.g to read as follows:

‘‘The prohibition of subsection c. shall

not apply to a permit application due to

any violation resulting from an

unanticipated event or condition at a

surface mine eligible for remining held

by the applicant.’’ The Federal

counterpart to this new provision is 30

CFR 773.15(b)(4). However, the State

rule lacks a counterpart to the

restrictions that 30 CFR 773.15(b)(4)

places on the exception. Therefore, the

proposed amendment is less effective

than 30 CFR 773.15(b)(4) and it cannot

be approved. In addition, the State

provision is less effective than its

Federal counterpart because it does not

26132 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

define the meaning and limits of the

term ‘‘unanticipated event or condition’’

as does 30 CFR 773.15(b)(4)(ii).

4. CSR 38–2–14.14.a.1. Disposal of

Excess Spoil

This subdivision is amended by

adding language to allow excess spoil to

be deposited on abandoned mine lands

and/or bond forfeiture sites under a

reclamation contract pursuant to

Section 28 of WVSCMRA. The new

language requires that the permittee

obtain right of entry and any necessary

approvals from the appropriate

environmental agencies or other

agencies. The WVDEP stated that these

changes will allow the director to issue

no-cost reclamation contracts to a

permittee to reclaim abandoned and

forfeited sites.

We recently approved an amendment

to the Pennsylvania program that

authorizes the placement of excess spoil

on AML reclamation project sites (64 FR

14610, March 26, 1999). The

Pennsylvania amendment authorizes the

use of excess spoil from a valid,

permitted coal mining operation for the

reclamation of an abandoned,

unreclaimed area outside the permit

area. As a prerequisite for approval, we

informed Pennsylvania that the

Commonwealth must either handle

these projects as traditional Federally

funded AML reclamation projects or

identify the administrative, financial,

contractual and environmental

safeguards that will be applied to these

‘‘no-cost’’ government-financed

construction contracts. In addition,

Pennsylvania also needed to show how

the safeguards would ensure the same

level of environmental protection as that

provided by traditional Federally

funded AML reclamation projects.

The same standard applies to West

Virginia. That is, West Virginia must

either limit excess spoil disposal to

traditional Federally funded AML

reclamation projects or identify

alternative procedures that will afford

the same level of protection.

The proposed amendment at CSR 38–

2–14.14.a.1. provides that the disposal

of excess spoil on abandoned mine

lands must be conducted under a

reclamation contract pursuant to section

22–3–28 of WVSCMRA and ‘‘this rule.’’

The meaning of the phrase ‘‘this rule’’

is unclear. While it could mean all of

subsection 14.14, this is unlikely,

because 14.14.c. limits placement of

excess spoil to permitted areas and

approved AML reclamation projects. If

these restrictions are meant to apply to

projects authorized under 14.14.a.1.,

then the new provision is superfluous,

since it would not expand the universe

of sites eligible for excess spoil disposal.

In particular, the authorization to place

excess spoil on bond forfeiture sites

would be meaningless, since it would be

limited to bond forfeiture sites that are

also eligible for and approved for AML

reclamation funding—and such sites are

already candidates for excess spoil

placement pursuant to subsection

14.14.c. Therefore, we believe the

phrase ‘‘this rule’’ means subsection

14.14.a. Consequently, our analysis

must focus on the issue of whether

section 22–3–28 of WVSCMRA and

subsection 14.14.a. of the regulations

provide safeguards that will ensure the

same level of environmental protection

as that provided by Federally funded

AML reclamation projects.

In authorizing the issuance of ‘‘no

cost’’ contracts for reclamation projects,

section 22–3–28(e) of WVSCMRA

provides no specific safeguards for the

disposal of excess spoil on abandoned

mine lands. CSR 38–2–14.14.a. contains

some safeguards, such as the

requirement that acid and toxic-forming

materials be covered with nonacid,

nontoxic and noncombustible materials

(14.14.a.5.) and the requirements for

slope protection (14.14.a.6.) and

postmining land use suitability

(14.14.a.7.). However, there is no

meaningful performance incentive, such

as the requirement to file a bond, to

ensure completion of reclamation in

accordance with the contract. And

neither the statute nor the regulations

provide an alternate guarantee that the

necessary reclamation will be

completed, such as commitment of AML

moneys or other sources of funding.

Because section 22–3–28 of WVSCMRA

and CSR 38–2–14.14.a. do not contain

safeguards that will ensure the same

level of environmental protection as that

provided by a permit and bond or by

Federally funded AML reclamation

projects, we are not approving CSR 38–

2–14.14.a.1. at this time.

We recommend that the WVDEP

identify the specific provisions of

section 22–3–28 of the WVSCMRA and

CSR 38–2–14.14 that apply to the

placement of excess spoil on abandoned

mine lands. The WVDEP should also

clarify that spoil may only be placed on

sites eligible for reclamation under the

abandoned mine land reclamation

program and listed on the abandoned

mine land inventory. The program also

must require that excess spoil placed on

bond forfeiture sites be placed in

accordance with the reclamation plan of

the forfeited permit.

In short, the WVDEP must provide

safeguards that will ensure the same

level of environmental protection as that

provided by a permit and bond issued

under the State’s approved regulatory

program, or as provided by a Federally

funded AML reclamation project. When

these safeguards are developed, we

encourage the WVDEP to resubmit its

amendment concerning the disposal of

excess spoil on abandoned mine lands

and bond forfeiture sites for our review.

At that time, we will also reconsider the

proposed amendments to sections 22–3–

3(u)(2)(3) and 22–3–28(e) of WVSCMRA

to the extent that they authorize

reclamation of abandoned mine lands

and bond forfeiture sites under no-cost

reclamation contracts.

5. Redesignation of CSR 38–2–14.16

Through 38–2–14.19

As discussed in Finding 9, West

Virginia is incorporating CSR 38–2–

14.16 into new section CSR 38–2–24. As

a consequence of this action, CSR 38–

2–14.17 is redesignated as CSR 38–2–

14.16; CSR 38–2–14.18 is redesignated

as CSR 38–2–14.17; and CSR 38–2–

14.19 is redesignated as CSR 38–2–

14.18. These are non-substantive

organizational changes that do not

render the West Virginia program less

effective than the Federal regulations.

6. CSR 38–2–14.18 Disposal of

Noncoal Mine Wastes

West Virginia is deleting subsection

14.18.d. (formerly codified as subsection

14.19.d.) because it conflicts with CSR

38–2–8.2.e., which was added during

the last legislative session. In our

approval of CSR 38–2–8.2.e., we noted

that 30 CFR 948.16(ttt) continued to

require that the State regulations at CSR

38–2–14.19.d. (now 14.18.d.)

concerning the windrowing of timber be

amended. We also noted that West

Virginia indicated that 38–2–14.19.d.

(now 14.18.d.) would be deleted in a

future rulemaking session, which would

satisfy this requirement. See 64 FR

6201, 6209 (February 9, 1999).

For this reason, we find that the

State’s deletion of CSR 38–2–14.18.d.

does not render the West Virginia

program less effective than the Federal

regulations. In addition, we are

removing 30 CFR 948.16(ttt) for the

same reason.

7. CSR 38–2–22.5.l Removal of

Abandoned Coal Refuse Piles

Subsection 22.5.l applies to the

removal or reprocessing of abandoned

coal refuse piles under CSR 38–2–3.14

and subsection 22–3–28(d) of

WVSCMRA. West Virginia is revising

this subsection by deleting the term

‘‘special permit’’ and replacing it with

‘‘reclamation contract’’ to more

accurately reflect actual practice.

Therefore, we find that this change is

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26133

non-substantive. However, as discussed

in Finding 2, we are not approving CSR

38–2–3.14 to the extent that it applies to

the on-site reprocessing of any

abandoned coal mine waste piles or to

the complete or partial removal of

abandoned refuse piles that meet the

definition of coal in 30 CFR 700.5.

8. CSR 38–2–23 Special Authorization

for Coal Extraction as an Incidental Part

of Development of Land for Commercial,

Residential, or Civic Use

This new section would allow special

authorization for coal extraction as an

incidental part of development of land

for commercial, residential, industrial,

or civic use. The section contains

provisions for applicant information,

site development and sampling

information; provisions for approval of

a notice of intent for coal extraction as

an incidental part of development of

land for commercial, residential, or

civic use; performance standards;

expiration of a notice of intent coal

extraction as an incidental part of

development; escrow release; notice on

site; and public records. The WVDEP

explained that the new language is

intended to implement new statutory

provisions. The new provisions

(subsections 22–3–28 (a) through (c) of

WVSCMRA) allow the director to apply

lesser standards to coal extraction

conducted as an incidental part of

development of land for commercial,

residential, industrial, or civic use.

On February 9, 1999 (64 FR 6204,

Finding 12), we found subsections 22–

3–28 (a) through (c) of WVSCMRA to be

less stringent than sections 528 and

701(28) of SMCRA and therefore

unapprovable. As noted in that finding,

the Interior Board of Surface Mining

Appeals (IBSMA), which was

subsequently incorporated into the

Interior Board of Land Appeals (IBLA),

twice ruled that ‘‘the extraction of coal

as an incidental part of privately

financed construction is not an activity

excluded as such from the coverage of

the * * * regulatory program.’’ See

James Moore, 1 IBSMA 216 (1979) and

Gobel Bartley, 4 IBSMA 219 (1992). In

addition, we have previously

determined that subsections 22–3–28 (a)

through (c) of WVSCMRA are

inconsistent with SMCRA. See Finding

14.4 at 46 FR 5915, 5924 (January 21,

1981). Therefore, we are not approving

CSR 38–2–23. Furthermore, we are

requiring that West Virginia revise its

regulations to remove CSR 38–2–23.

9. CSR 38–2–24 Performance

Standards Applicable Only to Remining

Operations

This section is largely new. However,

subsections 24.1.a. through 24.1.l. were

formerly codified as subsections 14.16.a.

through 14.16.l, subsection 24.2.a. was

previously codified as subsection

14.16.m, and subsection 24.3 was

previously codified as subsection

14.16.n. Because the redesignated

subsections are otherwise unchanged,

we find that the redesignation does not

render the State program less effective

than SMCRA and the Federal

regulations.

We also note that redesignated

subsection 24.3 concerns only the

standards for issuance of National

Pollutant Discharge Elimination System

(NPDES) permits for remining

operations. We have no jurisdiction over

the NPDES program. Therefore,

subsection 24.3 is not subject to review

and approval under SMCRA and we do

not consider it to be part of the State’s

approved SMCRA regulatory program.

New subsection 24.2.b. provides that

the revegetation responsibility period

for remining operations must be not less

than two growing seasons after the last

year of augmented seeding, fertilizing,

irrigation or other work. The

counterpart Federal regulations at 30

CFR 816.116(c)(2)(ii) provide that the

period of responsibility must be two full

years for lands eligible for remining.

Since the State’s rules at CSR 38–2–2.57

define growing season to mean one year,

the proposed responsibility period of

two growing seasons is equivalent to,

and therefore no less effective than, the

Federal regulations at 30 CFR

816.116(c)(2)(ii).

New subsection CSR 38–2–24.4

provides that bond release for remining

operations must comply with CSR 38–

2–12.2, with the exception of

subdivision 12.2.e. for Phase I, II, or III

release. If all other requirements of

subsection 12.2 are satisfied, then the

Director may approve a request for

Phase I, II, or III release if the quality of

untreated water discharging from the

site is equal to or better than the preremining water quality discharged from

the site. In its submittal of this

amendment, the WVDEP stated that this

change will allow for the release of the

land reclamation bond if the postremining water quality discharging from

the site is equal to or better than preremining water quality.

Under section 301(p) of the Clean

Water Act, the State may issue an

NPDES permit which modifies the pH,

iron, and manganese standards for preexisting discharges from the remined

area or affected by a qualifying remining

operation. However, the permit may not

allow the pH, iron, or manganese levels

of any discharge to exceed the levels

being discharged from the remined area

before the advent of the coal remining

operation.

But section 301(p) does not apply to

all remining operations. Instead, it

defines ‘‘coal remining operation’’ to

mean a coal mining operation which

begins after February 4, 1987 (the date

of enactment of section 301(p)), at a site

on which coal mining was conducted

before August 3, 1977 (the effective date

of SMCRA). The U.S. Environmental

Protection Agency (EPA) declined to

concur with the approval of subsection

CSR 38–2–24.4 because that subsection

would allow use of the section 301(p)

standards for remining operations that

began prior to February 4, 1987, and for

sites on which coal mining was

originally conducted on or after August

3, 1977.

The Federal regulations at 30 CFR

816/817.42 provide that discharges of

water from areas disturbed by surface

mining activities must be made in

compliance with all applicable State

and Federal water quality laws and

regulations. Because CSR 38–2–24.4

does not comply with this requirement,

it is less effective than the Federal rules.

Accordingly, we are not approving this

provision. We also are requiring that

West Virginia further amend its

regulations to remove CSR 38–2–24.4.

IV. Summary and Disposition of

Comments

Federal Agency Comments

On June 12, 1998, we asked for

comments from various Federal

agencies who may have an interest in

the West Virginia amendment

(Administrative Record Number WV–

1088). We solicited comments in

accordance with section 503(b) of

SMCRA and 30 CFR 732.17(h)(11)(i) of

the Federal regulations. The Department

of the Army, U.S. Army Corps of

Engineers responded and stated that the

changes are satisfactory to the Corps.

The U.S. Department of Labor, Mine

Safety and Health Administration

(MSHA) provided the following

comments. MSHA expressed concern

with section 38–2–24.1.g. which allows

coal processing and underground

development waste embankments in

mined-out areas to have a long-term

slope stability safety factor of 1.3.

MSHA stated that a safety factor of 1.5

is required by 30 CFR 77.215(h).

The Federal regulations at 30 CFR

77.215(h), to which MSHA referred in

its comment, requires a static safety

26134 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

factor of 1.5 for refuse piles. Refuse piles

are structures that are built above the

ground level where no material

previously existed, or are built upon

previously existing built-up structures.

The Federal regulations for

impoundments (30 CFR 816.49), excess

spoil disposal (30 CFR 816.71), durable

rock fills (30 CFR 816.73), and coal

mine waste disposal areas (30 CFR

816.81) all provide for static safety

factor of 1.5. These are all structures

that are constructed above the ground

level, where no material previously

existed. However, the stability of

materials that will be returned to or be

used to backfill the mined out area as

provided by 30 CFR 816.102 can

achieve a lesser static safety factor of

1.3. 30 CFR 816.102(e) provides that the

disposal of coal processing waste and

underground development waste in the

mined-out area shall be in accordance

with sections 816.81 and 816.83, except

that a long-term static safety factor of 1.3

shall be achieved. The higher 1.5 static

safety factor standard is only required

where refuse or waste will be piled into

above-ground structures. The lesser 1.3

static safety factor standard is required

where refuse or waste will be used to

backfill mined out areas, or to bring the

land back to its approximate original

contour. The West Virginia standard at

section 38–2–24.1.g. applies only to the

disposal of waste in previously mined

out areas. Therefore, the static safety

standard of 1.3 is appropriate, and no

less effective than the Federal

regulations at 30 CFR 816.102(e) which

provide the same standard for waste

disposal in a mined-out area.

The National Park Service requested

that we review the proposed changes

carefully to examine the full implication

of the revisions on the overall

effectiveness of the West Virginia

program. The National Park Service also

stated that, while the proposed revisions

do not alter provisions pertinent to

section 522(e)(3) of SMCRA, they

nonetheless may affect the level of

protection afforded various areas under

this section of SMCRA. Section

522(e)(3) provides that, subject to valid

existing rights, no surface coal mining

operations except those which exist on

August 3, 1977, may be permitted if the

operations would adversely affect any

publicly owned park or place included

in the National Register of Historic

Places, unless the regulatory authority

and the Federal, State, or local agency

with jurisdiction over the park or the

historic site jointly approve these

operations. In response to the Park

Service’s concerns, we note that the

amendment does not in any way

compromise the protections afforded

under section 522(e)(3) of SMCRA.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(i)

and (ii), OSM is required to solicit

comments and obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). By

letter dated June 12, 1998, we requested

comments and concurrence from EPA

on the State’s proposed amendment of

May 14, 1998 (Administrative Record

Number WV–1089).

By letter dated November 29, 1999

(Administrative Record Number WV–

1141), the EPA provided comments on

the proposed amendment. In addition,

the EPA stated that it could not concur

with the approval of CSR 38–2–24.4

because that subsection appears to allow

bond release for sites on which

remining began before February 4, 1987,

and/or for sites mined after August 3,

1977, even if the discharges from those

sites do not meet applicable effluent

limitations and water quality standards.

The EPA noted that such a provision

would not comply with section 301(p)

of the Clean Water Act, 33 U.S.C.

1311(p).

As discussed in Finding 9, we are not

approving CSR 38–2–24.4 because it

would allow issuance of modified

NPDES permits for operations that do

not meet the criteria established in

section 301(p). To be eligible under

section 301(p), a remining operation

must be a site on which coal mining was

conducted before the effective date of

SMCRA (August 3, 1977), and the

remining operation must begin after the

date of the enactment of section 301(p)

of the Clean Water Act (February 4,

1987). Therefore, as submitted, CSR 38–

2–24.4 is less effective than 30 CFR 816/

817.42 and we are not approving it.

The EPA supported CSR 38–2–3.14,

which concerns no-cost contracts for the

removal of abandoned coal refuse piles.

However, the EPA noted that CSR 38–

2–3.14.b.4.E., which requires that all

necessary permits be obtained from

environmental agencies, must be

interpreted as including NPDES permits

for stormwater discharges from the

refuse removal operation sites, where

applicable.

As discussed in Finding 2, we are not

approving subsection 3.14 to the extent

that it would apply to the removal of

abandoned coal mine refuse piles

where, on average, the material to be

removed meets the definition of coal in

30 CFR 700.5. In addition, we are not

approving subsection 3.14 to the extent

that it could be interpreted as applying

to the on-site reprocessing of abandoned

coal refuse piles.

We determined that subsection 3.14 is

less stringent than SMCRA and less

effective than the Federal regulations

because it would allow the issuance of

a reclamation contract for the removal of

coal refuse piles that meet the definition

of coal rather than requiring that such

operations obtain a standard regulatory

program permit for surface coal mining

operations as do the Federal regulations.

We also determined that subsection

3.14.c. is less stringent than SMCRA and

less effective than the Federal

regulations to the extent that it may be

interpreted as authorizing the State to

issue a reclamation contract rather than

a surface coal mining operations permit

for on-site reprocessing operations.

Under the Federal definition of surface

coal mining operations in 30 CFR 700.5,

all on-site reprocessing operations that

separate coal from other materials in the

pile must be regulated as surface coal

mining operations.

We took no position on the other

revisions that West Virginia has made to

subsection 3.14. As we stated in 1990,

‘‘the removal, transport and use

(without onsite reprocessing) of coal

mine refuse which does not meet the

definition of ‘coal’ set forth in 30 CFR

700.5; i.e., ASTM Standard D 388–77, is

not subject to regulation [under

SMCRA].’’ 55 FR 21314, May 23, 1990.

The EPA also stated that CSR 38–2–

24.3 correctly provides that remining

operations that begin after February 4,

1987, on a site that was mined prior to

August 3, 1977, may qualify for less

stringent effluent limits under section

301(p) of the Clean Water Act. The EPA

explained that, subject to certain

conditions, section 301(p) allows

replacement of most effluent limits in

40 CFR 434 with less stringent, best

professional judgement (BPJ) effluent

limits if the applicant can demonstrate

that the post-remining discharge quality

will be better than, or at least equal to,

the pre-remining discharge quality. As

noted in Finding 9, subsection 24.3

concerns only the issuance of NPDES

permits. Therefore, it is not subject to

review and approval under SMCRA and

we do not consider it to be part of the

State’s approved SMCRA regulatory

program.

Public Comments

We received no comments from the

public.

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26135

V. Director’s Decision

Based on the findings in Part III of

this preamble, we are approving the

proposed amendments to the West

Virginia program, except as noted

below.

We are not approving CSR 38–2–3.14

to the extent that it would apply to the

removal of abandoned coal mine refuse

piles where, on average, the material to

be removed meets the definition of coal

in 30 CFR 700.5. In addition, we are not

approving this subsection to the extent

that it could be interpreted as applying

to the on-site reprocessing of abandoned

coal refuse piles. We take no position on

subsection 3.14 to the extent that it may

concern the removal, transport and use

(without onsite reprocessing) of coal

mine refuse which does not meet the

definition of ‘‘coal’’ in 30 CFR 700.5;

such activities are not subject to

regulation under SMCRA.

In addition, we are requiring that

West Virginia amend its program to

either: (1) delete subsection 3.14; or (2)

revise subsection 3.14 to clearly specify

that its provisions apply only to

activities that do not qualify as surface

coal mining operations as that term is

defined in 30 CFR 700.5; i.e., that

subsection 3.14 does not apply to either

the removal of abandoned coal mine

waste piles that, on average, meet the

definition of coal or to the on-site

reprocessing of coal mine waste piles. If

the State chooses the second option, it

should also submit the sampling

protocol that will be used to determine

whether the refuse piles meet the

definition of coal. The sampling

protocol must be designed to ensure that

no activities meeting the definition of

surface coal mining operations escape

regulation under the State’s SMCRA

regulatory program.

We are not approving CSR 38–2–

3.32.g., 38–2–14.14.a.1., 38–2–23, and

38–2–24.4. In addition, we are requiring

that West Virginia remove CSR 38–2–23

and 38–2–24.4.

We are removing 30 CFR 948.16(ttt).

The Federal regulations at 30 CFR

part 948 codifying decisions concerning

the West Virginia program are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) 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

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB 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 corresponding 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

corresponding Federal regulations.

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.

Dated: March 23, 2000.

Michael K. Robinson,

Acting Regional Director, Appalachian

Regional Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 948—WEST VIRGINIA

1. The authority citation for part 948

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 948.12 is amended by

revising the section heading and adding

a new paragraph (a) to read as follows:

§ 948.12 State statutory, regulatory, and

proposed program amendment provisions

not approved.

(a) We are not approving the

following provisions of the proposed

program amendment that West Virginia

submitted on May 11, 1998:

(1) CSR 38–2–3.14, to the extent that

it could be interpreted as applying to

the on-site reprocessing of abandoned

coal mine waste piles or to the extent

that it would apply to the removal of

abandoned coal refuse piles where, on

average, the material to be removed

meets the definition of coal in 30 CFR

700.5.

(2) CSR 38–2–3.32.g., which concerns

unanticipated events or conditions.

(3) CSR 38–2–14.14.a.1., which

concerns placement of excess spoil

outside the permit area.

(4) CSR 38–2–23, which concerns coal

extraction as part of land development

activities.

(5) CSR 38–2–24.4, which concerns

water quality standards for bond release.

* * * * *

3. Section 948.15 is amended by

revising the introductory text, the table

headings, and by adding a new entry to

the table in chronological order by date

26136 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

of final rule publication to read as

follows:

§ 948.15 Approval of West Virginia

regulatory program amendments.

The following table lists the dates that

West Virginia submitted proposed

amendments to OSM, the dates when

OSM published final rules approving all

or portions of those amendments in the

Federal Register, and the State statutory

or regulatory citations for those

amendments (or a brief description of

the amendment). The amendments

appear in order of the date of

publication of the final rules

announcing OSM’s decisions on the

amendments. The preambles to those

final rules identify and discuss any

assumptions underlying approval, any

conditions placed on the approval, and

any exceptions to the approval.

Original amendment

submission date

Date of publication

of final rule

Citation/description of approved

provisions

*******

May 11, 1998 .................... May 5, 2000 ..................... West Virginia regulations at CSR 38–2–2.25; 2.102; 3.32.d.12; 14.16 through 14.19;

22.5.1; 24 (except 24.4).

4. Section 948.16 is amended by

removing and reserving paragraph (ttt)

and by adding paragraphs (nnnn),

(oooo), and (pppp) to read as follows:

§ 948.16 Required regulatory program

amendments.

* * * * *

(nnnn) By July 5, 2000, West Virginia

must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to either

delete CSR 38–2–3.14 or revise CSR 38–

2–3.14 to clearly specify that its

provisions apply only to activities that

do not qualify as surface coal mining

operations as that term is defined in 30

CFR 700.5; i.e., that subsection 3.14

does not apply to either the removal of

abandoned coal mine waste piles that,

on average, meet the definition of coal

or to the on-site reprocessing of coal

mine waste piles. If the State chooses

the second option, it should also submit

the sampling protocol that will be used

to determine whether the refuse piles

meet the definition of coal. The

sampling protocol must be designed to

ensure that no activities meeting the

definition of surface coal mining

operations escape regulation under the

State’s SMCRA regulatory program.

(oooo) By July 5, 2000, West Virginia

must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to remove

CSR 38–2–23.

(pppp) By July 5, 2000, West Virginia

must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to remove

CSR 38–2–24.4.

[FR Doc. 00–10972 Filed 5–4–00; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF EDUCATION

34 CFR Part 674

Federal Perkins Loan Program;

Correction of Effective Date

AGENCY: Department of Education.

ACTION: Final regulations; correction of

effective date.

SUMMARY: On April 6, 2000 technical

amendments to regulations governing

the Federal Perkins Loan Program were

published in the Federal Register (65

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effective date of May 8, 2000

announced. The correct effective date

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2000. These technical amendments are

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incorporation of previous amendments

to 34 CFR part 674 published on

October 28, 1999 (64 FR 58298–58315)

with an effective date of July 1, 2000.

DATES: The regulations amending 34

CFR part 674 published on April 6, 2000

(65 FR 18001–18003) are effective July

1, 2000.

FOR FURTHER INFORMATION CONTACT: Ms.

Vanessa Freeman, Program Specialist,

U.S. Department of Education, 400

Maryland Avenue, SW., Room 3045,

Regional Office Building 3, Washington,

DC 20202–5449. Telephone: (202) 708–

8242. If you use a telecommunications

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Individuals with disabilities may

obtain this document in an alternative

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request to the contact person listed in

the preceding paragraph.

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(Catalog of Federal Domestic Assistance

Number: 84.037 Federal Perkins Loan

Program)

List of Subjects in 34 CFR Part 674

Loan programs—education, Reporting

and recordkeeping requirements,

Student aid.

Dated: May 1, 2000.

Maureen McLaughlin,

Acting Assistant Secretary, Office of

Postsecondary Education.

[FR Doc. 00–11230 Filed 5–4–00; 8:45 am]

BILLING CODE 4000–01–P

DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

36 CFR Part 327

RIN 0710–AA45

Public Use of Water Resources

Development Projects Administered by

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AGENCY: U.S. Army Corps of Engineers,

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ACTION: Correcting amendments.

SUMMARY: This document contains

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