[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Proposed Rules]
[Pages 2866-2869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1059]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-089-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 a 
written response to letters sent to the State by OSM, in accordance 
with the Federal regulations at 30 CFR 732.17(d), which identify 
changes to SMCRA and the Federal regulations that require the State 
program to be amended. The amendment submitted by the State is intended 
to render the West Virginia program no less effective than the Federal 
requirements.

DATES: If you submit written comments, they must be received on or 
before 4:00 p.m. (local time), on February 12, 2001. If requested, a 
public hearing on the proposed amendments will be held at 1:00 p.m. 
(local time), on February 6, 2001. Requests to speak at the hearing 
must be received by 4:00 p.m. (local time), on January 29, 2001.

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 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#82e1eae4edc2edf1eff0e7ace5edf4"><span class="__cf_email__" data-cfemail="711219171e311e021c03145f161e07">[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

[[Page 2867]]

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 letter dated December 20, 2000 (Administrative Record Number WV-
1191), the WVDEP submitted an amendment to its program. The program 
amendment consists of a written response to letters sent to the State 
by OSM in accordance with the Federal regulations at 30 CFR 732.17(d). 
30 CFR 732.17(d) provides that OSM must notify the State of all changes 
in SMCRA and the Federal regulations which will require an amendment to 
the State program. Such letters sent by OSM are often referred to as 
``732 letters.'' The amendment submitted by the State is intended to 
render the West Virginia program no less effective than the Federal 
requirements.
    In the December 20, 2000, letter, item 2. concerns a 732 letter 
dated February 7, 1990, and regulations concerning the exemption for 
coal extraction incidental to the extraction of other minerals removed 
for purposes of commercial use or sale. The WVDEP stated that it will 
develop and submit a rule package for the 2002 legislative session 
which will contain counterparts to the Federal regulations at 30 CFR 
Part 702. Therefore, when the State legislature approves new provisions 
that are intended to satisfy the issues concerning the adequacy of the 
special reclamation fund, and those provisions are submitted to OSM for 
review and approval, we will announce the proposed provisions in a 
future proposed rule notice published in the Federal Register. At that 
time we will invite public comment on whether those provisions satisfy 
the relevant issues that were identified in the February 7, 1990, 732 
letter concerning the exemption for coal extraction incidental to the 
extraction of other minerals removed for purposes of commercial use or 
sale.
    At item 3. in the December 20, 2000, letter, the WVDEP stated that 
it has addressed the issues presented in the 732 letter dated October 
1, 1991, concerning the adequacy of the special reclamation fund. The 
WVDEP stated that these 732 issues are the same as those codified in 
the Federal regulations at 30 CFR 948.16(jjj), (kkk), and (lll). The 
WVDEP stated that it has addressed its intentions concerning these 
issues in a letter to OSM dated August 31, 2000. The August 31, 2000, 
letter states that the WVDEP is actively working to address these 
issues, and that permanent changes to the West Virginia bonding program 
must be presented to the state legislature. The WVDEP timeline, the 
letter stated, provides an opportunity for this issue to be taken up by 
the 2001 legislature. Therefore, when the State legislature approves 
new provisions that are intended to satisfy the issues concerning the 
adequacy of the special reclamation fund, and those provisions are 
submitted to OSM for review and approval, we will announce the proposed 
provisions in a future proposed rule notice published in the Federal 
Register. At that time we will invite public comment on whether those 
provisions satisfy the relevant issues that were identified in the 
October 1, 1991, 732 letter and the required program amendments 
codified at 30 CFR 948.16(jjj), (kkk), and (lll).
    In its December 20, 2000, letter, at item 4., the WVDEP stated that 
the State has submitted in a letter to OSM dated April 27, 1997, a 
program amendment implementing the Energy Policy Act of 1992. On 
February 9, 1999 (64 FR 6201) we published our final rule notice in the 
Federal Register concerning that amendment. On February 28, 2000 (65 FR 
10388), we published a correction notice in the Federal Register 
concerning the February 9, 1999, notice. Since the WVDEP has not 
submitted any additional information in the December 20, 2000, letter 
concerning implementation of the Energy Policy Act of 1992, item 4. 
will not be a part of this rulemaking.
    In its December 20, 2000, letter, at item 5. (inadvertently 
identified as item 6.), the WVDEP stated that OSM is in the process of 
revising its ownership and control regulations in response to a court 
decision. The WVDEP further stated that OSM has indicated that it will 
reissue a 732 letter concerning ownership and control in January 2001. 
Consequently, the WVDEP has not provided any other response to the 732 
letter dated December 24, 1996, concerning changes and additions to 
existing ownership and control rules at 30 CFR parts 701, 773, 778, 
840, and 843. Therefore, item 5. will not be addressed in this 
rulemaking. On December 19, 2000, OSM published its revised regulations 
concerning ownership and control in the Federal Register (65 FR 79582). 
In the near future, OSM will provide the WVDEP with a 732 letter 
detailing the changes that need to be made to the State program as a 
consequence of the new Federal provisions.
    In its December 20, 2000, letter, the State's responses at item 
6.F., 6.G., 6.H., and 6.I. indicate that the WVDEP will submit draft 
proposed language to the State legislature for consideration for 
rulemaking during its 2002 session. The WVDEP intends that the draft 
proposed language would satisfy specific issues identified in the 732 
letters. When the State legislature approves new rules that are 
intended to satisfy specific 732 issues, and those rules are submitted 
to OSM for review and approval, we will announce the proposed rules in 
a future proposed rule notice published in the Federal Register. At 
that time we will invite public comment on whether those rules satisfy 
the relevant 732 letters.
    In the December 20, 2000, letter, at item 6.J., concerning bond 
release requirements, the WVDEP stated that it will revise the bond 
release application to include a written, notarized statement by the 
permittee that all applicable reclamation requirements specified in the 
permit have been completed. Since the WVDEP has not submitted specific 
program changes in its December 20, 2000, letter concerning this issue, 
item 6.J. will not be part of this rulemaking.
    In the December 20, 2000, letter, item 7., concerning staffing 
level supporting the approved program, the WVDEP stated that the State 
has previously submitted a staffing plan and schedule to OSM. Since the 
WVDEP has not submitted specific program changes in its December 20, 
2000, letter concerning this issue, item 7. will not be part of this 
rulemaking.
    You will find West Virginia's program amendment presented below. In 
each item, the State first identifies the 732 letter and the issue, 
followed by its response to the issue.
    1. 732 letter dated March 6, 1990--30 CFR 816.116(b)(3)(i)--Federal 
rules have been revised to require that minimum stocking and planting 
arrangements for areas developed for fish and wildlife habitat, 
recreation, shelterbelts or forest products be specified by the 
regulatory authority after consultation with and approval by the state 
agencies responsible for administration of forest and wildlife 
programs. Consultation and approval may occur as either a program-wide 
or permit-specific basis.
    State response: Consultation and approval occurs on a permit-
specific basis. In fact, the wildlife plans are prepared by a biologist 
from the Division of Natural Resources.
    2. 732 letter dated July 22, 1997.

[[Page 2868]]

    2.A. 30 CFR 701.5 ``other treatment facilities''.
    State response: The state does not need this term. There is a 
definition for ``sediment control or other water retention structure, 
sediment control or other water retention system or sediment or 
sediment pone'' at [CSR] 38-2-2.110 and ``chemical treatment'' at [CSR] 
38-2-2.21.
    2.B. 30 CFR 701.5 ``previously mined area''.
    State response: The state does not need the definition of 
``previously mined area.'' The term is used in the state's regulations 
in conjunction with remining operations. Furthermore, the federal 
definition of ``previously mined area'' and ``remining'' contradicts 
the definition of ``lands eligible for remining''.
    2.C. 30 CFR 701.5 ``siltation structure''.
    State response: The state does not need the definition of 
``siltation structure''. This term is defined in the federal rule as 
``a sedimentation pond'' and corresponds to the state's definition 
found at [CSR] 38-2-2.110.
    2.D. 30 CFR 761.5 ``significant recreational, timber, economic, 
other values incompatible with surface coal mining operations'' as it 
relates to federal lands.
    State response: The state does not need to define this term since 
[30 CFR] 740.4 states that this determination is the responsibility of 
the secretary. Furthermore, there is nothing in state or federal 
regulation that would restrict the secretary from using [30 CFR] 761.5 
in his determination.
    2.E. 30 CFR 780.25--Revise the state program to add specific 
references to NRCS Technical Release No. 60 criteria for dam 
classification.
    State response: Since the state references its Dam Control Act 
(which contains a dam classification similar to TR-60), it does not 
need to reference the NRCS criteria.
    2.F. 30 CFR 816.49--Performance standards were revised for 
impoundments to impoundments by referencing NRCS TR-60 and require 
impoundments meeting Class B or C criteria to comply with the same 
stability, spillway, foundation, etc. as impoundments meeting MSHA 
criteria in 30 CFR 77.216(a).
    State response: Since the state references its Dam Control Act, its 
requirements contain similar standards to those contained in 30 CFR 
816.49.
    2.G. 30 CFR 816.81(a)-- * * * Coal mine waste shall be hauled or 
conveyed and placed for final placement in a controlled manner to * * 
*.
    State response: The state does not need to revise its rules at 
[CSR] 38-2-22.5 since the state's rules at [CSR] 38-2-22.3.p. has 
procedures for the spreading and compaction of refuse material for 
final placement. It states ``the material shall be compacted in layers 
not exceeding two feet in thickness * * *''. This is similar to 30 CFR 
77.215(h).
    2.H. 30 CFR 816.104(a)--``Thin Overburden'' definition. 30 CFR 
816.105(a)--``Thick Overburden'' definition.
    State response: The state does not need to amend its rule. The 
statute at [W.Va. Code] 22-3-13(b)(3) defines ``think'' [sic; thin] and 
``thick'' overburden and has similar language to that contained in 30 
CFR 816.104(a) and 30 CFR 816.105(a).
    30 CFR 840.11(g)(4)-30 CFR 840.11(h)--Inspection frequencies at 
abandoned sites.
    State response: The state has existing process that addresses 
whether and to what extent a forfeited site poses or may reasonably be 
expected to pose imminent danger to the health and safety of the public 
or significant harm to land and water resources. This process has not 
been codified.
    3. 732 letter dated August 22, 2000--Subsidence due to underground 
mining is not a surface coal mining operation and it is not prohibited 
in areas protected under section 552(e) of the Surface Mining Control 
and Reclamation Act.
    State response: The state does not need to amend its rule. Section 
[W.Va. Code] 22-3-22(d) applies to surface mining operations rather 
than to underground activities.
    4. 732 letter dated August 22, 2000--Valid Existing Rights.
    State response: The state does not need to amend its rule since the 
existing rule is as effective as its federal counterpart.

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-089-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 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 4:00 p.m. (local 
time), on January 29, 2001. 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

[[Page 2869]]

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.

    Dated: January 5, 2001.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-1059 Filed 1-11-01; 8:45 am]
BILLING CODE 4310-05-P


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