28682 Federal Register / Vol. 66, No. 101 / Thursday, May, 24, 2001 / Proposed Rules

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 926

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 14, 2001.

Peter Rutledge,

Acting Regional Director, Western Regional

Coordinating Center.

[FR Doc. 01–13157 Filed 5–23–01; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–091–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.

SUMMARY: OSM is announcing receipt of

a proposed amendment to the West

Virginia regulatory program under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

program amendment consists of changes

to the West Virginia Surface Mining

Reclamation rules at 38 CSR 2 as

contained in House Bill 2663. 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 June 25, 2001. If

requested, a public hearing on the

proposed amendments will be held at

1:00 p.m. (local time), on June 18, 2001.

Requests to speak at the hearing must be

received by 4:00 p.m. (local time), on

June 8, 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:

chfo@osmre.gov.

West Virginia Department of

Environmental Protection, 10

McJunkin Road, Nitro, West Virginia

25143, Telephone: (304) 759–0515.

The proposed amendment will be

posted at the Department’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.

(By Appointment Only)

Office of Surface Mining Reclamation

and Enforcement, Beckley Area

Office, 323 Harper Park Drive, Suite 3,

Beckley, West Virginia 25801,

Telephone: (304) 255–5265.

FOR FURTHER INFORMATION CONTACT: Mr.

Roger W. Calhoun, Director, Charleston

Field Office; Telephone: (304) 347–

7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia

Program

On January 21, 1981, the Secretary of

the Interior conditionally approved the

West Virginia program. You can find

background information on the West

Virginia program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval in the January 21, 1981,

Federal Register (46 FR 5915–5956).

You can find later actions concerning

the conditions of approval and program

amendments at 30 CFR 948.10, 948.12,

948.13, 948.15, and 948.16.

II. Discussion of the Proposed

Amendment

By letter dated May 2, 2001

(Administrative Record Number WV–

1209), the West Virginia Department of

Environmental Protection (WVDEP)

submitted an amendment to its program.

The program amendment consists of

changes to the West Virginia Surface

Mining Reclamation rules at 38 CSR 2

as amended by House Bill 2663. The

amendment submitted by the State is

intended to render the West Virginia

program no less effective than the

Federal requirements.

We are not requesting comments on

the proposed changes to CSR 38–2–

3.14.b.12, concerning the partial

removal of coal processing refuse piles,

for the following reason. In 1990, we

stated that ‘‘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.

CSR 38–2–3.14.b.12 pertains to the

removal of coal refuse that does not

meet the definition of coal. Therefore, it

is not subject to regulation under

SMCRA, and will not be considered

here.

You will find West Virginia’s program

amendment presented below.

1. CSR 38–2–2.39 Definition of

‘‘Cumulative Impact’’

This definition is being amended by

deleting the existing language and

adding in its place the following

language.

2.39. Cumulative Impact Area means

the area, including the permit area,

within which impacts resulting from the

proposed operation may interact with

the impacts of all anticipated mining on

surface and groundwater systems.

Anticipated mining shall include the

entire projected lives through bond

releases of:

2.39.a. The proposed operation;

2.39.b. All existing operations;

2.39.c. Any operation for which a

permit application has been submitted

to the Director, and;

2.39.d. All operations required to

meet diligent development requirements

for leased Federal coal for which there

is actual mine development information

available.

2. CSR 38–2–3.12.a.1. Subsidence

Control Plan

This provision is being amended by

adding the words ‘‘a narrative

indicating’’ to the survey and map

requirements of this subsection. As

amended, this provision requires a

survey, map, and a narrative indicating

whether or not subsidence could cause

material damage to the identified

structures and water supplies.

We note that this amendment is in

response to the required program

amendment codified at 30 CFR

948.16(zzz). This required amendment

provides that the State must amend the

West Virginia program to require that

the map of all lands, structures, and

drinking, domestic and residential water

supplies which may be materially

damaged by subsidence show the type

and location of all such lands,

structures, and drinking, domestic and

residential water supplies within the

Federal Register / Vol. 66, No. 101 / Thursday, May, 24, 2001 / Proposed Rules 28683

permit and adjacent areas, and to

require that the permit application

include a narrative indicating whether

subsidence, if it occurred, could cause

material damage to or diminish the

value or reasonably foreseeable use of

such structures or renewable resource

lands or could contaminate, diminish,

or interrupt drinking, domestic, or

residential water supplies. For further

information, see the February 9, 1999,

Federal Register (64 FR 6201, 6206–

6207).

3. CSR 38–2–3.14.a. Removal of

Abandoned Coal Refuse Piles

This provision is being amended by

changing the proviso concerning

material that meets the ASTM standard

of the minimum BTU value to be

classified as coal. As amended, if the

material at existing abandoned coal

processing waste piles meets the

minimum BTU value standard to be

classified as coal, as set forth in ASTM

standard D 388–99, and if not AML

eligible, a permit application which

meets all applicable requirements of this

rule shall be required. Prior to this

amendment, the words ‘‘and if not AML

eligible’’ did not appear in the

provision, and the provision did not

require the submittal of a permit

application if the material met the

minimum BTU value to be classified as

coal.

This amendment has been submitted

to address the required regulatory

program amendment codified at 30 CFR

948.16(nnnn). In the May 5, 2000,

Federal Register (65 FR 26130, 26130–

26131), we did not approve CSR 38–2–

3.14.a. 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 did not approve subsection

3.14 to the extent that it could be

interpreted as applying to the on-site

processing of abandoned coal refuse

piles. Consequently, we required at 30

CFR 948.16(nnnn) that the State amend

its program to either: (1) Delete

subsection 3.14; or (2) revise subsection

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 701.5; 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. We also stated that 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.

4. CSR 38–2–3.22.e. Base Line Surface

Water Information

This provision is being amended by

adding the following sentence.

‘‘Material damage to the hydrologic

balance outside the permit areas means

any long term or permanent change in

the hydrologic balance caused by

surface mining operation(s) which has a

significant adverse impact on the

capability of the affected water

resource(s) to support existing

conditions and uses.’’

5. CSR 38–2–16.2.c.4. Bonding for

Subsidence Damage

This provision is being amended by

deleting the existing first two sentences.

In their place, the following sentences

are added.

The director shall issue a notice to the

permittee that subsidence related material

damage has occurred to lands, structures, or

water supply, and that the permittee has

ninety (90) days from the date of notice to

complete repairs or replacement. The

director may extend the ninety (90) day

abatement period but such extension shall

not exceed one (1) year from the date of the

notice. Provided, however, the permittee

demonstrates in writing, and the director

concurs that subsidence is not complete, that

not all probable subsidence related material

[damage] has occurred to lands or structures;

or that not all reasonably anticipated changes

have occurred affecting the water supply, and

that it would be unreasonable to complete

repairs or replacement within the ninety (90)

day abatement period.

In addition, the final existing sentence

is being amended by adding the

following words to the end of that

sentence: ‘‘to land or structures, or the

estimated cost to replace water supply.’’

This amendment is intended to

address the required program

amendment codified at 30 CFR

948.16(ffff). For more information, see

Finding 26 in the February 9, 1999,

Federal Register (64 FR 6201, 6212–

6213).

6. CSR 38–2–3.31.c. Federal, State,

County, Municipal, or Other Local

Government-Financed Highway or

Other Construction Exemption

This subsection is new, and provides

the following: ‘‘Funding less than fifty

percent (50%) may qualify if the

construction is undertaken as part of an

approved reclamation project in

accordance with WV Code § 22–3–28.’’

This revision is intended to revise the

West Virginia program to add the

additional flexibility afforded by the

revised Federal definition of the term

‘‘government-financed construction’’ at

30 CFR 707.5. For more information, see

the February 12, 1999, Federal Register

(64 FR 7469).

7. CSR 38–2–3.32.g. Permit Issuance—

Unanticipated Event or Condition

This provision is amended by adding

new language at the end of the existing

one-sentence paragraph, and by adding

three new subdivisions. As amended,

the provision is as follows:

3.32.g. The prohibition of subdivision

3.32.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 under permit held by the

applicant that meets the requirements of

30 CFR 773.15(4)(i). An event will be

presumed to be unanticipated for

purposes of this paragraph if it:

3.32.g.1. Arose after remining permit

was issued.

3.32.g.2. Was related to prior mining;

and

3.32.g.3. Was not identified in the

remining permit.

8. CSR 38–2–5.2.a. Intermittent or

Perennial Stream Buffer Zone

This provision is amended by deleting

the words, ‘‘normal flow or gradient of

the stream, adversely affect fish

migration or related environmental

values, materially damage the.’’ In

addition the words ‘‘or other

environmental resources’’ are added. As

amended, the provision is as follows:

5.2.a. Intermittent or Perennial

Stream. No land within one hundred

feet (100′) of an intermittent or

perennial stream shall be disturbed by

surface mining operations including

roads unless specifically authorized by

the Director. The Director will authorize

such operations only upon finding that

surface mining activities will not

adversely affect the water quantity and

quality or other environmental

resources of the stream and will not

cause or contribute to violations of

applicable State or Federal water quality

standards. The area not to be disturbed

shall be designated a buffer zone and

marked accordingly.

9. CSR 38–2–11.3.a.3. Surety Bonds

This provision is new, and is as

follows:

11.3.a.3. Surety received after July 1,

2001 must be recognized by the

treasurer of state as holding a current

certificate of authority from the United

28684 Federal Register / Vol. 66, No. 101 / Thursday, May, 24, 2001 / Proposed Rules

States Department of the Treasury as an

acceptable surety on federal bonds.

10. CSR 38–2–12.2.e. Bond Release

This provision is being amended by

prohibiting bond release if water

discharged requires passive treatment.

The provision currently prohibits bond

release if chemical treatment is needed.

In addition, a new sentence is added

that clarifies that measures approved in

the permit and taken during mining and

reclamation to prevent the formation of

acid drainage shall not be considered

passive treatment.

This amendment is intended to

address the required program

amendment codified at 30 CFR

948.16(qqq). This required amendment

requires that the West Virginia program

be amended to clarify that bond may not

be released where passive treatment

systems are used to achieve compliance

with applicable effluent limitations. For

more information, see Finding 2, in the

February 21, 1996, Federal Register (61

FR 6511, 6517). As amended, the

provision is as follows:

12.2.e. Notwithstanding any other

provisions of this rule, no bond release

or reduction will be granted if, at the

time, water discharged from or affected

by the operation requires chemical or

passive treatment in order to comply

with applicable effluent limitations or

water quality standards. Measures

approved in the permit and taken

during mining and reclamation to

prevent the formation of acid drainage

shall not be considered passive

treatment; Provided, That the Director

may approve a request for Phase I but

not Phase II or III, release if the

applicant demonstrates to the

satisfaction of the Director that either:

* * *.

11. CSR 38–2–12.4.e. Responsibility for

Reclamation Costs of Forfeited Bonds

This provision is amended by deleting

the words, ‘‘or other responsible party.’’

This amendment is intended to address

the required program amendment

codified at 30 CFR 948.16(jjjj). For more

information, see the November 12, 1999,

Federal Register (64 FR 61506–61507).

As amended, this provision is as

follows:

12.4.e. The operator or permittee shall

be liable for all costs in excess of the

amount forfeited. The Director may

commence civil, criminal or other

appropriate action to collect such costs.

12. CSR 38–2–14.8.a.6. Constructed

Outcrop Barriers

This provision is new. This

amendment is intended to address the

required program amendment codified

at 30 CFR 948.16(xx). For more

information, see Finding 32 in the

February 21, 1996, Federal Register (61

FR 6511, 6524–6525), and Finding 8(a)

in the October 4, 1991, Federal Register

(56 FR 50256, 50264–50265). This new

provision is as follows:

14.8.[a.]6. Constructed outcrop

barriers shall be designed using

standard engineering procedures to

inhibit slides and erosion to ensure the

long-term stability of the backfill. The

constructed outcrop barriers shall have

a minimum static safety factor of 1.3,

and where water quality is paramount,

the constructed barriers shall be

composed of impervious material with

controlled discharge points.

13. CSR 38–2–24.4. Requirements To

Release Bonds

This provision is being amended by

deleting language concerning an

exception to the requirements to release

bonds, and by adding a new proviso

concerning revegetation. This

amendment is intended to address the

required program amendment codified

at 30 CFR 948.16(pppp). For more

information, see Finding 9 in the May

5, 2000, Federal Register (65 FR 26130,

26133). As amended, the provision is as

follows:

24.4. Requirements to Release Bonds.

Bond release for remining operations

shall be in accordance with all of the

requirements set forth in subsection

12.2 of this rule; Provided that there is

no evidence of a premature vegetation

release.

III. Public Comment Procedures

In accordance with the provisions of

30 CFR 732.17(h), we are 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–091–

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 p.m. (local time), on June

8, 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

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.

Federal Register / Vol. 66, No. 101 / Thursday, May, 24, 2001 / Proposed Rules 28685

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: May 14, 2001.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

[FR Doc. 01–13156 Filed 5–23–01; 8:45 am]

BILLING CODE 4310–05–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 224–0279b; FRL–6982–7]

Revisions to the California and Arizona

State Implementation Plans, Antelope

Valley Air Pollution Control District

and Maricopa County Environmental

Services Department

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

revisions to the Antelope Valley Air

Pollution Control District (AVAPCD)

and Maricopa County Environmental

Services Department (MCESD) portions

of the respective California and Arizona

State Implementation Plans (SIPs).

These revisions concern volatile organic

compound (VOC) emissions from

solvent cleaning operations and

automotive windshield washer fluid

use. We are proposing to approve local

rules to regulate these emission sources

under the Clean Air Act as amended in

1990 (CAA or the Act).

DATES: Any comments on this proposal

must arrive by June 25, 2001.

ADDRESSES: Mail comments to Andy

Steckel, Rulemaking Office Chief (AIR–

4), U.S. Environmental Protection