[Federal Register Volume 63, Number 134 (Tuesday, July 14, 1998)]
[Rules and Regulations]
[Pages 37774-37777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18738]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-078-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule.

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SUMMARY: OSM is approving the clarification of three final rule 
decisions, the removal of a required amendment, and the vacating of its 
retroactive approval of 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 clarifications concern West Virginia statutes pertaining 
to administrative appeals and the State Environmental Quality Board, 
and the required amendment pertains to termination of jurisdiction. 
These actions are intended to comply with a settlement agreement 
reached in West Virginia Mining and Reclamation Association (WVMRA) v. 
Babbitt, No. 2: 96-0371 (S.D. W.Va.).

EFFECTIVE DATE: July 14, 1998.

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

SUPPLEMENTARY INFORMATION:
I. Background on the 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

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. Background information on the West 
Virginia program, including the Secretary's findings, the disposition 
of comments, and the conditions of the approval can be found in the 
January 21, 1981, Federal Register (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

    In a series of three letters dated June 28, 1993, and July 30, 1993 
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West 
Virginia Division of Environmental Protection (WVDEP) submitted an 
amendment to its approved permanent regulatory program that included 
numerous revisions to the West Virginia Surface Coal Mining and 
Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations 
(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on 
durable rock fills on August 16, 1995, (60 FR 42437-42443) and 
approved, with exceptions, the proposed revisions on bonding on October 
4, 1995, (60 FR 51900-51918). OSM approved, with exceptions, the 
remaining amendments on February 21, 1996, (61 FR 6511-6537). See 30 
CFR 948.15 for the provisions that were partially approved by OSM. See 
30 CFR 948.16 for required amendments.
    On April 18, 1996, the WVMRA, the West Virginia Coal Association, 
and the Tri-State Coal Operators Association, Inc. filed an appeal, 
pursuant to section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), 
challenging certain OSM decisions contained in the February 21, 1996, 
Federal Register Notice, including the decision to make approval of the 
amendment retroactive. (Administrative Record Number WV-1027). On 
October 29, 1997, the parties reached a settlement agreement with 
respect to six of the seven counts contained in the above referenced 
case. (Administrative Record Number WV-1077). The other count, 
pertaining to the use of passive treatment systems after final bond 
release, was decided by the United States District Court for the 
Southern District of West Virginia in OSM's favor. See WVMRA v. 
Babbitt, No. 2: 96-0371 (S.D. W.Va. July 11, 1997) (Administrative 
Record Number WV-1072). OSM proposed this rulemaking in order that it 
may fulfill its obligations with respect to five of the six counts of 
the appeal which are addressed by settlement agreement. The remaining 
count addressed in the settlement agreement, pertaining to the 
windrowing of materials on the downslope in steep slope areas, is the 
subject of another proposed rulemaking, announced in the June 10, 1997, 
Federal Register. See 62 FR 31543, 31545.
    The proposed rulemaking was published in the February 23, 1998, 
Federal Register (63 FR 8891). No one requested an opportunity to speak 
at a public hearing, so none was held.

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

[[Page 37775]]

findings concerning the clarification of three final rule decisions, 
the removal of a required amendment, and the vacating of its 
retroactive approval of amendments to the West Virginia permanent 
regulatory program.

1. The Clarifications

Sec. 22B-1-7(d) Administrative Appeals

    As announced in the Federal Register on February 21, 1996 (61 FR at 
6516, 6536), OSM did not approve a language at Sec. 22B-1-7(d) 
concerning allowing temporary relief where the appellant demonstrates 
that the executed decision appealed from will result in the appellant 
suffering an ``unjust hardship.'' OSM stated that the provision was 
disapproved because the exception is inconsistent with SMCRA section 
514(d) and 525(c). Further, OSM required, at 30 CFR 948.16(nnn), that 
Sec. 22B-1-7(d) be amended to be consistent with SMCRA sections 514(d) 
and 525(c). In accordance with the settlement agreement in WVMRA v. 
Babbitt, supra, OSM proposed to clarify its February 21, 1996, decision 
by stating that Sec. 22B-1-7(d) is not approved only to the extent that 
it includes unjust hardship as a criterion to support the granting of 
temporary relief from an order or other decision issued under Chapter 
22, Article 3 of the West Virginia Code, which is the West Virginia 
counterpart to SMCRA. OSM also proposed to revise the required 
amendment at 30 CFR 948.16(nnn) to require West Virginia to amend its 
program to remove unjust hardship as a criterion to support the 
granting of temporary relief from an order or other decision issued 
under Chapter 22, Article 3 of the West Virginia Code. The Director now 
adopts this proposal, and is, therefore, not approving Sec. 22B-1-7(d) 
only to the extent that it includes unjust hardship as a criterion to 
support the granting of temporary relief from an order or other 
decision issued under Chapter 22, Article 3 of the West Virginia Code, 
which is the West Virginia counterpart to SMCRA. The Director is also 
revising the required amendment at 30 CFR 948.16(nnn) to require West 
Virginia to amend its program to remove unjust hardship as a criterion 
to support the granting of temporary relief from an order or other 
decision issued under Chapter 22, Article 3 of the West Virginia Code.

Sec. 22B-1-7(h) Administrative Appeals

    As announced in the Federal Register on February 21, 1996 (61 FR at 
6516, 6536), OSM did not approve language at Sec. 22B-1-7(h) to the 
extent that the provisions would allow the West Virginia Surface Mining 
Board to decline to order an operator to treat or control discharges 
due to economic considerations. In addition, OSM required, at 30 CFR 
948.16(ooo), that the State further amend Sec. 22B-1-7(h) to be no less 
stringent than SMCRA section 515(b)(10) and no less effective than the 
Federal regulations at 30 CFR 816.42 by requiring that discharges be 
controlled or treated without regard to economic feasibility. In 
accordance with the settlement agreement in WVMR v. Babbitt, supra. OSM 
proposed to clarify that Sec. 22B-1-7(h) is not approved only to the 
extent that it references Article 3, Chapter 22 of the West Virginia 
Code. OSM also proposed to revise the required amendment at 30 CFR 
948.16(ooo) to require West Virginia to mend its program by removing 
the reference, in Sec. 22B-1-7(h), to Article 3, Chapter 22. The 
Director is now adopting this proposal and is, therefore, not approving 
Sec. 22B-1-7(h) only to the extent that it references Article 3, 
Chapter 22 of the West Virginia Code. The Director is also revising the 
required amendment at 30 CFR 948.16(ooo)--to require West Virginia to 
amend its program by removing the reference, in Sec. 22B-1-7(h), to 
Article 3, Chapter 22.

Sec. 22B-3-4 Environmental Quality Board

    As announced in the Federal Register on February 21, 1996 (61 FR at 
6517), OSM approved the provisions at Sec. 22B-3-4 concerning the 
Environmental Quality Board's rulemaking authority. Under the State's 
S.B. 287, the Board is authorized, with certain restrictions, to 
promulgate procedural rules granting site-specific variances for water 
quality standards for coal remining operations. In approving the 
provision, OSM also stated that any such procedural rules that grant 
variances must be submitted to OMS for approval prior to their 
implementation.
    In accordance with the settlement agreement in WVMRA v. Babbitt, 
supra, OSM proposed to clarify that it does not have approval authority 
over rules developed by the Environmental Quality Board under the 
authority of the Clean Water Act. The Director is now adopting this 
proposal and finds, therefore, that the Environmental Quality Board is 
not required to submit to OSM for approval procedural rules for the 
implementation of site specific variances for water quality standards 
for remining operations.

2. Amendment Findings Revisions

CSR 38-2-1.2(c)(1) Termination of Jurisdiction

    As announced in the Federal Register on February 21, 1996 (61 FR at 
6517, 6536), OSM found Sec. 38-2-1.2(c)(1) to be less effective than 
the Federal regulations at 30 CFR 700.11(d)(1)(i) to the extent that 
subsection (c)(1) does not require compliance with the Federal initial 
program regulations at Subchapter B or the West Virginia permanent 
regulatory program as a prerequisite to the termination of jurisdiction 
over an initial program site. In addition, OSM required, at 30 CFR 
948.16(ppp), that the State further amend subsection (c)(1) to require 
compliance with the Federal initial program regulations at Subchapter B 
or the West Virginia permanent regulatory program regulations as a 
prerequisite to the termination of jurisdiction over an initial program 
site.
    By letter dated December 12, 1996 (Administrative Record Number WV-
1052), the West Virginia Division of Environmental Protection (WVDEP) 
stated its commitment to require that initial program sites in West 
Virginia meet the West Virginia program's permanent program 
requirements as a precondition of the termination of regulatory 
jurisdiction over such sites.
    In recognition of the acknowledgment contained in the December 12, 
1996, WVDEP letter, and in accordance with the settlement agreement in 
WVMRA v. Babbitt, supra, OSM proposed to accept the WVDEP's December 
12, 1996 letter as satisfying the requirements of 30 CFR 
700.11(d)(1)(i), and proposed to delete the required amendment codified 
at 30 CFR 948.16(ppp). The Director is now adopting this proposal and, 
therefore, is accepting the WVDEP's December 12, 1996 letter as 
satisfying the requirements of 30 CFR 700.11(d)(1)(i). The Director is 
also removing the required amendment at 30 CFR 948.16(ppp).

3. Vacating Retroactive Approval of Amendments

    In the February 21, 1996, Federal Register (61 FR 6533), OSM stated 
that with respect to laws and regulations being approved in the notice, 
the OSM was making the effective date of the approval retroactive to 
the date upon which each provision took effect in West Virginia for 
purposes of State law. However, as stated in the settlement agreement 
in WVMRA v. Babbitt, supra, OSM has agreed to vacate the retroactive 
effect of its approval of the program amendment which was the subject 
of the February 21, 1996, Federal Register

[[Page 37776]]

notice. Therefore, OSM announced its intention to vacate the 
retroactive approval of the amendments discussed and approved in the 
February 21, 1996, Federal Register notice, 61 FR 6511, 6535. In 
addition, OSM proposed to change the effective dates of all the 
amendments approved in the February 21, 1996 notice to February 21, 
1996.
    Accordingly, the Director is hereby vacating the retroactive 
approval of the amendments discussed and approved in the February 21, 
1996, Federal Register notice 61 FR 6511, 6535. Furthermore, the 
Director is changing the effective dates of all the amendments approved 
in the February 21, 1996 notice to February 21, 1996.
    The Director finds that the clarifications, amendment findings 
revisions, and vacation of the retroactive approval of the previously 
approved amendments do not render the West Virginia program less 
effective, and are hereby approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
Department of the Army, U.S. Army Corps of Engineers responded and 
stated that the proposed dispositions are satisfactory to the agency. 
The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) responded and stated that the agency did not find any statements 
that would conflict with MSHA's regulations or policies.

Public Comments

    The following comments were received in response to the request for 
public comments. The West Virginia Coal Association (WVCA) stated that 
events have occurred since OSM's approval of the West Virginia Code at 
Sec. 22-3-8(6)(B) concerning compliance with the State's workers' 
compensation provisions at Sec. 23-2-5. Sec. 22-3-8(6)(B) states that 
``[i]t is a requirement of this article [article 3, chapter 22, which 
is the West Virginia counterpart to SMCRA] that each operator maintain 
continued compliance with the provisions of section five, article two, 
chapter twenty-three of this code [the requirement to pay workers' 
compensation premiums] and provide proof of compliance to the director 
on an annual basis.'' Specifically, the commenter stated that 
interpretations of Sec. 22-3-8(6)(B) may improperly (1) create bond 
forfeitures that cannot be reclaimed by the State's special reclamation 
fund; (2) allow reclamation bonds to be used for purposes other than 
reclamation of mining sites; and (3) allows citizens' suits that would 
affect limits imposed under the State's workers' compensation laws. 
Accordingly, the WVCA demanded that OSM either disapprove Sec. 22-3-
8(6)(B) or approve it expressly subject to the interpretation given to 
the provision by the WVDEP. That interpretation is discussed below.
    The WVDEP stated that its primary concern is that implementation of 
Sec. 22-3-8(6)(B) not put any additional pressure on the bonding funds 
available to WVDEP for completing reclamation. WVDEP stated that, while 
it is more than willing to screen applicants for compliance with the 
workers' compensation laws and thereafter take reasonable action to 
ensure that they subsequently maintain compliance, the WVDEP cannot in 
doing so jeopardize its primary purposes to ensure that the environment 
is protected and reclamation is accomplished.
    The WVDEP further stated that to ensure that Sec. 22-3-8(6)(B) is 
not interpreted or applied in such a fashion as to jeopardize 
environmental protection and the reclamation bonding program, WVDEP 
issued a policy on June 7, 1995, concerning enforcement procedures for 
companies in default with workers' compensation. By that policy, WVDEP 
interprets Sec. 22-3-8(6)(B) to allow permittees to abate violations 
issued for the workers' compensation defaults of their contractors 
either by demonstrating that the contractor has returned to good 
standing or by taking action to terminate the operator approval. WVDEP 
stated that it recognizes that any interpretations of Sec. 22-3-8(6)(B) 
which would impose obligations on permittees or operators for workers' 
compensation obligations incurred prior to the effective date of the 
statute could compromise the Special Reclamation Fund, which is used to 
reclaim minesites for which the proceeds for forfeited performance 
bonds are inadequate to achieve full reclamation.
    To ensure an appropriate application of Sec. 22-3-8(6)(B) while 
maintaining the consistency of the State surface mining program with 
SMCRA, and in accordance with its June 7, 1995, policy, the WVDEP 
interprets Sec. 22-3-8(6)(B) as:
    (1) Prohibiting the issuance of both new permits and operator 
approvals (known as operator reassignments in West Virginia) to those 
applicants for which the Workers' Compensation Division advises have 
not complied with Sec. 23-2-5;
    (2) In cases involving permittees that utilize contractors, 
enabling DEP to issue a notice of violation to a permittee for its 
contractors' failure to comply with the workers' compensation 
provisions of W. Va. Code Sec. 23-2-5, and allowing the permittee to 
abate the violation either by demonstrating that the contractor has 
returned a status of good standing with the Workers' Compensation 
Division  or by submitting the paperwork necessary to allow DEP to 
rescind or terminate the operator approval (operator reassignment); and
    (3) To the extent it imposes obligations on permittees and 
operators to maintain compliance with W. Va. Code Sec. 23-2-5, it does 
so only to the extent that the obligation to pay premiums, submit 
reports, etc. first arose after the effective date of W. Va. Code 
Sec. 22-3-8(6)(B).
    The Director does not believe that the WVCA's comments are germane 
to this rulemaking, since approval of Sec. 22-3-8(6)(A) and (B) was 
previously announced in the February 21, 1996, Federal Register. 61 FR 
6511. In his approval, the Director noted that ``as provided in 
paragraph (h) [Sec. 22-3-8(6)], the State proposes to make compliance 
with the Workers' Compensation Program a requirement of permit 
approval.'' 61 FR at 6514. The basis for the Director's approval is not 
changed in this rulemaking, since the substance of Sec. 22-3-8(6) is 
not at issue here. The Director notes, however, that the effective date 
of his approval of Sec. 22-3-8(6) is now changed to February 21, 1996.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to 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.). OSM 
has determined that the proposed provision does not pertain to air and 
water quality standards. Therefore, EPA concurrence is not required.
    Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments from 
the EPA on the proposed amendment. EPA did not provide any comments in 
response to the request.

V. Director's Decision

    Based on the findings above the Director is approving the 
clarification of the three final rule decisions, the removal of the 
required amendment, and the vacating of its February 21, 1996, 
retroactive approval of

[[Page 37777]]

amendments to the West Virginia program.
    The Federal regulations at 30 CFR 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision.

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 for 
assumptions for the corresponding Federal regulations.

Unfunded Mandates

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

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 28, 1998.
Allen D. Klein,
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 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
  Original amendment submission      Date of final         Citation/    
              date                    publication         description   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
February 23, 1998...............  July 14, 1998.....  WV Code Sections  
                                                       22B-1-7(d), 7(h);
                                                       22B-3-4. WV      
                                                       Regulations CSR  
                                                       38-2-1.2(c)(1).  
                                                       Vacating of      
                                                       retroactive      
                                                       approval         
                                                       published on     
                                                       February 21,     
                                                       1996.            
------------------------------------------------------------------------

    3. Section 948.16 is amended by removing and reserving paragraph 
(ppp), and by revising paragraphs (nnn) and (ooo) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (nnn) By September 14, 1998, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise Section 22B-1-7(d) to 
remove unjust hardship as a criterion to support the granting of 
temporary relief from an order or other decision issued under Chapter 
22, Article 3 of the West Virginia Code.
    (ooo) By September 14, 1998, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise Section 22B-1-7(h) by 
removing reference to Article 3, Chapter 22.
* * * * *
[FR Doc. 98-18738 Filed 7-13-98; 8:45 am]
BILLING CODE 4310-05-M