[Federal Register Volume 66, Number 101 (Thursday, May 24, 2001)]
[Proposed Rules]
[Pages 28682-28685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13156]


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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.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The program amendment consists of 
changes to the West Virginia 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: 
<a href="/cdn-cgi/l/email-protection#fc9f949a93bc938f918e99d29b938a"><span class="__cf_email__" data-cfemail="80e3e8e6efc0eff3edf2e5aee7eff6">[email protected]</span></a>.
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

[[Page 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 
Sec. 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

[[Page 28684]]

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.

[[Page 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


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