[Federal Register Volume 65, Number 88 (Friday, May 5, 2000)]
[Rules and Regulations]
[Pages 26130-26136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10972]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-080-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving, with certain exceptions, amendments to the
West Virginia permanent regulatory program (hereinafter referred to as
the West Virginia program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The amendment consists of the
revisions to the West Virginia Surface Mining Reclamation Regulations.
The amendments are intended to improve the operational efficiency of
the West Virginia program.
EFFECTIVE DATE: May 5, 2000.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the West Virginia Program
The Secretary of the Interior conditionally approved the West
Virginia program on January 21, 1981. You can find background
information on the West Virginia program, including the Secretary's
findings, the disposition of comments, and the conditions of the
approval in the January 21, 1981, Federal Register at 46 FR 5915-5956.
Subsequent actions concerning the West Virginia program and previous
amendments are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and
948.16.
II. Submission of the Amendment
By letter dated May 11, 1998 (Administrative Record Number WV
1086), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to its approved regulatory program pursuant to
the Federal regulations at 30 CFR 732.17(b). The amendment consists of
revisions to CSR 38-2, the State's Surface Mining Reclamation
Regulations, which the Governor signed on April 12, 1998.
We published the proposed rulemaking in the Federal Register on
June 15, 1998 (63 FR 32632). The public comment period closed on July
15, 1998. Since no one requested an opportunity to speak at a public
hearing, we did not hold a hearing.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
amendments to the West Virginia regulatory program.
1. CSR 38-2-2 Definitions
West Virginia is amending the definition of ``Coal Remining
Operation'' in CSR 38-2-2.25 to mean a coal mining operation on lands
which would be eligible for expenditures under section 22-2-4 of the
West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA).
Section 22-2-4(c) provides that lands and water eligible for
reclamation are those which were mined for coal or which were affected
by the mining, waste banks, coal processing or other coal mining
processes, and abandoned or left in an inadequate status prior to
August 3, 1977, and for which there is no continuing reclamation
responsibility. This language is substantively identical to the
corresponding Federal provision in section 404 of SMCRA. Section 22-2-
4(c) also includes certain lands for which bond forfeiture proceeds are
inadequate to completely reclaim the site, as authorized by section
402(g)(4) of SMCRA. Hence, the State definition is substantively
identical to the Federal definition of ``lands eligible for remining''
at 30 CFR 701.5, which provides that the term ``means those lands that
would otherwise be eligible for expenditures under section 404 or under
section 402(g)(4) of the Act.''
The State also is amending the definition of ``Remined Area'' in
CSR 38-2-2.102 to mean the area of any coal remining operation. This
definition has no precise Federal counterpart, but we find that it is
not inconsistent with the Federal definition of ``lands eligible for
remining'' at 30 CFR 701.5 or any other SMCRA-related provision. Hence,
it can be approved.
2. CSR 38-2-3.14 Removal of Abandoned Coal Refuse Disposal Piles
West Virginia has revised paragraphs a. and b. of subsection 3.14
by replacing the term ``special permit'' with the term ``reclamation
contract'' and by replacing ``permit application'' and ``application''
with ``request.'' The State also made numerous other revisions to this
subsection. For the reasons set forth below, these revisions need not
be discussed here.
Subsection 3.14 authorizes the State to issue reclamation contracts
``solely for the removal of existing abandoned
[[Page 26131]]
coal processing waste piles.'' It further provides that, ``if the
average quality of the refuse material meets the minimum BTU value
standards to be classified as coal, as set forth in ASTM Standard D
388-88, a request which meets all applicable requirements of this
section shall be required.'' In addition, subsection 3.14.c. implies
that the State may issue a reclamation contract for operations that
involve on-site reprocessing of abandoned coal refuse piles.
While we approved previous versions of subsection 3.14, our
approval was limited to the removal of abandoned refuse piles that do
not meet the definition of coal in 30 CFR 700.5. For example, in 1990,
at 30 CFR 948.12(k)(4), we disapproved the initial version of
subsection 3.14 ``to the extent that it applies to the removal of
abandoned coal mine refuse piles where the material being removed meets
the definition of coal (ASTM Standard D 388 77).'' 55 FR 21304, 21313-
14, May 23, 1990. We based that decision on the definition of ``surface
coal mining operations'' in 30 CFR 700.5, which specifically includes
``the extraction of coal from coal refuse piles.'' The term
``extraction'' includes both the removal of coal refuse material that
already meets the definition of coal and the on-site reprocessing of
coal refuse to separate coal from waste rock and other materials. SMCRA
and the Federal regulations do not establish lesser permitting
requirements for the extraction of coal from coal refuse piles than
they do for other types of remining operations.
Subsection 3.14 is less stringent than SMCRA and less effective
than the Federal regulations because it would allow the issuance of a
reclamation contract for the removal of coal refuse piles that meet the
definition of coal rather than requiring that such operations obtain a
standard regulatory program permit for surface coal mining operations
as do the Federal regulations. In addition, subsection 3.14.c. is less
stringent than SMCRA and less effective than the Federal regulations to
the extent that it may be interpreted as authorizing the State to issue
a reclamation contract rather than a surface coal mining operations
permit for on-site reprocessing operations. As discussed above, under
the Federal definition of surface coal mining operations in 30 CFR
700.5, all on-site reprocessing operations that separate coal from
other materials in the pile must be regulated as surface coal mining
operations.
Therefore, we are not approving subsection 3.14 to the extent that
it would apply to the removal of abandoned coal mine refuse piles
where, on average, the material to be removed meets the definition of
coal in 30 CFR 700.5. In addition, we are not approving subsection 3.14
to the extent that it could be interpreted as applying to the on-site
reprocessing of abandoned coal refuse piles.
Otherwise, we take no position on the revisions that West Virginia
has made to subsection 3.14. As we stated in 1990, ``the removal,
transport and use (without onsite reprocessing) of coal mine refuse
which does not meet the definition of `coal' set forth in 30 CFR 700.5;
i.e., ASTM Standard D 388-77, is not subject to regulation [under
SMCRA].'' 55 FR 21314, May 23, 1990.
Consistent with this decision, we are requiring that West Virginia
amend its program to either: (1) Delete subsection 3.14; or (2) revise
subsection 3.14 to clearly specify that its provisions apply only to
activities that do not qualify as surface coal mining operations as
that term is defined in 30 CFR 700.5; i.e., that subsection 3.14 does
not apply to either the removal of abandoned coal mine waste piles
that, on average, meet the definition of coal or to the on-site
reprocessing of coal mine waste piles. If the State chooses the second
option, it should also submit the sampling protocol that will be used
to determine whether the refuse piles meet the definition of coal. The
sampling protocol must be designed to ensure that no activities meeting
the definition of surface coal mining operations escape regulation
under the State counterpart to SMCRA and the Federal regulations.
The previous discussion notwithstanding, the removal or
reprocessing of any coal refuse pile may qualify for the government-
financed construction exemption under section 528(2) of SMCRA. Section
528(2) of SMCRA states that SMCRA shall not apply to the extraction of
coal as an incidental part of Federal, State, or local government-
financed highway or other construction under regulations established by
the regulatory authority. Section 22-3-26(b) of the WVSCMRA contains a
similar provision.
The Federal regulations at 30 CFR part 707 provide the standards
for implementing SMCRA section 528(2). Essentially, part 707 provides
that, to be exempt from regulation as a surface coal mining operation
under SMCRA, coal extraction must be a component of a government-
financed construction project, and the extraction of coal must be
incidental to the construction. CSR 38-2-3.31 is the approved West
Virginia program regulation governing government-financed highway or
other construction exemptions that are exempt from the provisions of
WVSCMRA.
On February 12, 1999 (64 FR 7469-83), we amended the definition of
``government-financed construction'' at 30 CFR 707.5 to provide that
government funding of less than 50 percent of a project's costs may
qualify if the construction is undertaken as an approved abandoned mine
reclamation project under Title IV of SMCRA. We also added 30 CFR
874.17, which establishes requirements and procedures for reclamation
projects receiving less than 50 percent government funding. The West
Virginia program lacks counterparts to the revised Federal definition
of ``government-financed construction'' at 30 CFR 707.5 and the Federal
regulations at 30 CFR 874.17. Therefore, at present, the government-
financed construction exemption is not available to West Virginia
projects with less than 50 percent government financing.
3. CSR 38-2-3.32 Findings--Permit Issuance
Subsection 3.32.d.12 is amended by replacing the reference to
former subsection 14.16 with a reference to new section 24, where the
performance standards applicable only to remining operations have been
relocated. We find this change to be a non-substantive organizational
revision that does not render the State program less stringent than
SMCRA or less effective than the Federal regulations.
In addition, West Virginia is replacing the phrase ``and prior to
August 3, 1977'' with ``would be eligible for expenditures under
Section 4, Article 2 of Chapter 22.'' We find that this revision is
approvable because it is consistent with the Federal definition of
``lands eligible for remining'' at 30 CFR 701.5, a term that appears in
30 CFR 773.15(c)(13), the Federal counterpart to the West Virginia
provision.
West Virginia also proposes to add subsection 3.32.g to read as
follows: ``The prohibition of subsection c. shall not apply to a permit
application due to any violation resulting from an unanticipated event
or condition at a surface mine eligible for remining held by the
applicant.'' The Federal counterpart to this new provision is 30 CFR
773.15(b)(4). However, the State rule lacks a counterpart to the
restrictions that 30 CFR 773.15(b)(4) places on the exception.
Therefore, the proposed amendment is less effective than 30 CFR
773.15(b)(4) and it cannot be approved. In addition, the State
provision is less effective than its Federal counterpart because it
does not
[[Page 26132]]
define the meaning and limits of the term ``unanticipated event or
condition'' as does 30 CFR 773.15(b)(4)(ii).
4. CSR 38-2-14.14.a.1. Disposal of Excess Spoil
This subdivision is amended by adding language to allow excess
spoil to be deposited on abandoned mine lands and/or bond forfeiture
sites under a reclamation contract pursuant to Section 28 of WVSCMRA.
The new language requires that the permittee obtain right of entry and
any necessary approvals from the appropriate environmental agencies or
other agencies. The WVDEP stated that these changes will allow the
director to issue no-cost reclamation contracts to a permittee to
reclaim abandoned and forfeited sites.
We recently approved an amendment to the Pennsylvania program that
authorizes the placement of excess spoil on AML reclamation project
sites (64 FR 14610, March 26, 1999). The Pennsylvania amendment
authorizes the use of excess spoil from a valid, permitted coal mining
operation for the reclamation of an abandoned, unreclaimed area outside
the permit area. As a prerequisite for approval, we informed
Pennsylvania that the Commonwealth must either handle these projects as
traditional Federally funded AML reclamation projects or identify the
administrative, financial, contractual and environmental safeguards
that will be applied to these ``no-cost'' government-financed
construction contracts. In addition, Pennsylvania also needed to show
how the safeguards would ensure the same level of environmental
protection as that provided by traditional Federally funded AML
reclamation projects.
The same standard applies to West Virginia. That is, West Virginia
must either limit excess spoil disposal to traditional Federally funded
AML reclamation projects or identify alternative procedures that will
afford the same level of protection.
The proposed amendment at CSR 38-2-14.14.a.1. provides that the
disposal of excess spoil on abandoned mine lands must be conducted
under a reclamation contract pursuant to section 22-3-28 of WVSCMRA and
``this rule.'' The meaning of the phrase ``this rule'' is unclear.
While it could mean all of subsection 14.14, this is unlikely, because
14.14.c. limits placement of excess spoil to permitted areas and
approved AML reclamation projects. If these restrictions are meant to
apply to projects authorized under 14.14.a.1., then the new provision
is superfluous, since it would not expand the universe of sites
eligible for excess spoil disposal. In particular, the authorization to
place excess spoil on bond forfeiture sites would be meaningless, since
it would be limited to bond forfeiture sites that are also eligible for
and approved for AML reclamation funding--and such sites are already
candidates for excess spoil placement pursuant to subsection 14.14.c.
Therefore, we believe the phrase ``this rule'' means subsection
14.14.a. Consequently, our analysis must focus on the issue of whether
section 22-3-28 of WVSCMRA and subsection 14.14.a. of the regulations
provide safeguards that will ensure the same level of environmental
protection as that provided by Federally funded AML reclamation
projects.
In authorizing the issuance of ``no cost'' contracts for
reclamation projects, section 22-3-28(e) of WVSCMRA provides no
specific safeguards for the disposal of excess spoil on abandoned mine
lands. CSR 38-2-14.14.a. contains some safeguards, such as the
requirement that acid and toxic-forming materials be covered with
nonacid, nontoxic and noncombustible materials (14.14.a.5.) and the
requirements for slope protection (14.14.a.6.) and postmining land use
suitability (14.14.a.7.). However, there is no meaningful performance
incentive, such as the requirement to file a bond, to ensure completion
of reclamation in accordance with the contract. And neither the statute
nor the regulations provide an alternate guarantee that the necessary
reclamation will be completed, such as commitment of AML moneys or
other sources of funding. Because section 22-3-28 of WVSCMRA and CSR
38-2-14.14.a. do not contain safeguards that will ensure the same level
of environmental protection as that provided by a permit and bond or by
Federally funded AML reclamation projects, we are not approving CSR 38-
2-14.14.a.1. at this time.
We recommend that the WVDEP identify the specific provisions of
section 22-3-28 of the WVSCMRA and CSR 38-2-14.14 that apply to the
placement of excess spoil on abandoned mine lands. The WVDEP should
also clarify that spoil may only be placed on sites eligible for
reclamation under the abandoned mine land reclamation program and
listed on the abandoned mine land inventory. The program also must
require that excess spoil placed on bond forfeiture sites be placed in
accordance with the reclamation plan of the forfeited permit.
In short, the WVDEP must provide safeguards that will ensure the
same level of environmental protection as that provided by a permit and
bond issued under the State's approved regulatory program, or as
provided by a Federally funded AML reclamation project. When these
safeguards are developed, we encourage the WVDEP to resubmit its
amendment concerning the disposal of excess spoil on abandoned mine
lands and bond forfeiture sites for our review. At that time, we will
also reconsider the proposed amendments to sections 22-3-3(u)(2)(3) and
22-3-28(e) of WVSCMRA to the extent that they authorize reclamation of
abandoned mine lands and bond forfeiture sites under no-cost
reclamation contracts.
5. Redesignation of CSR 38-2-14.16 Through 38-2-14.19
As discussed in Finding 9, West Virginia is incorporating CSR 38-2-
14.16 into new section CSR 38-2-24. As a consequence of this action,
CSR 38-2-14.17 is redesignated as CSR 38-2-14.16; CSR 38-2-14.18 is
redesignated as CSR 38-2-14.17; and CSR 38-2-14.19 is redesignated as
CSR 38-2-14.18. These are non-substantive organizational changes that
do not render the West Virginia program less effective than the Federal
regulations.
6. CSR 38-2-14.18 Disposal of Noncoal Mine Wastes
West Virginia is deleting subsection 14.18.d. (formerly codified as
subsection 14.19.d.) because it conflicts with CSR 38-2-8.2.e., which
was added during the last legislative session. In our approval of CSR
38-2-8.2.e., we noted that 30 CFR 948.16(ttt) continued to require that
the State regulations at CSR 38-2-14.19.d. (now 14.18.d.) concerning
the windrowing of timber be amended. We also noted that West Virginia
indicated that 38-2-14.19.d. (now 14.18.d.) would be deleted in a
future rulemaking session, which would satisfy this requirement. See 64
FR 6201, 6209 (February 9, 1999).
For this reason, we find that the State's deletion of CSR 38-2-
14.18.d. does not render the West Virginia program less effective than
the Federal regulations. In addition, we are removing 30 CFR
948.16(ttt) for the same reason.
7. CSR 38-2-22.5.l Removal of Abandoned Coal Refuse Piles
Subsection 22.5.l applies to the removal or reprocessing of
abandoned coal refuse piles under CSR 38-2-3.14 and subsection 22-3-
28(d) of WVSCMRA. West Virginia is revising this subsection by deleting
the term ``special permit'' and replacing it with ``reclamation
contract'' to more accurately reflect actual practice. Therefore, we
find that this change is
[[Page 26133]]
non-substantive. However, as discussed in Finding 2, we are not
approving CSR 38-2-3.14 to the extent that it applies to the on-site
reprocessing of any abandoned coal mine waste piles or to the complete
or partial removal of abandoned refuse piles that meet the definition
of coal in 30 CFR 700.5.
8. CSR 38-2-23 Special Authorization for Coal Extraction as an
Incidental Part of Development of Land for Commercial, Residential, or
Civic Use
This new section would allow special authorization for coal
extraction as an incidental part of development of land for commercial,
residential, industrial, or civic use. The section contains provisions
for applicant information, site development and sampling information;
provisions for approval of a notice of intent for coal extraction as an
incidental part of development of land for commercial, residential, or
civic use; performance standards; expiration of a notice of intent coal
extraction as an incidental part of development; escrow release; notice
on site; and public records. The WVDEP explained that the new language
is intended to implement new statutory provisions. The new provisions
(subsections 22-3-28 (a) through (c) of WVSCMRA) allow the director to
apply lesser standards to coal extraction conducted as an incidental
part of development of land for commercial, residential, industrial, or
civic use.
On February 9, 1999 (64 FR 6204, Finding 12), we found subsections
22-3-28 (a) through (c) of WVSCMRA to be less stringent than sections
528 and 701(28) of SMCRA and therefore unapprovable. As noted in that
finding, the Interior Board of Surface Mining Appeals (IBSMA), which
was subsequently incorporated into the Interior Board of Land Appeals
(IBLA), twice ruled that ``the extraction of coal as an incidental part
of privately financed construction is not an activity excluded as such
from the coverage of the * * * regulatory program.'' See James Moore, 1
IBSMA 216 (1979) and Gobel Bartley, 4 IBSMA 219 (1992). In addition, we
have previously determined that subsections 22-3-28 (a) through (c) of
WVSCMRA are inconsistent with SMCRA. See Finding 14.4 at 46 FR 5915,
5924 (January 21, 1981). Therefore, we are not approving CSR 38-2-23.
Furthermore, we are requiring that West Virginia revise its regulations
to remove CSR 38-2-23.
9. CSR 38-2-24 Performance Standards Applicable Only to Remining
Operations
This section is largely new. However, subsections 24.1.a. through
24.1.l. were formerly codified as subsections 14.16.a. through 14.16.l,
subsection 24.2.a. was previously codified as subsection 14.16.m, and
subsection 24.3 was previously codified as subsection 14.16.n. Because
the redesignated subsections are otherwise unchanged, we find that the
redesignation does not render the State program less effective than
SMCRA and the Federal regulations.
We also note that redesignated subsection 24.3 concerns only the
standards for issuance of National Pollutant Discharge Elimination
System (NPDES) permits for remining operations. We have no jurisdiction
over the NPDES program. Therefore, subsection 24.3 is not subject to
review and approval under SMCRA and we do not consider it to be part of
the State's approved SMCRA regulatory program.
New subsection 24.2.b. provides that the revegetation
responsibility period for remining operations must be not less than two
growing seasons after the last year of augmented seeding, fertilizing,
irrigation or other work. The counterpart Federal regulations at 30 CFR
816.116(c)(2)(ii) provide that the period of responsibility must be two
full years for lands eligible for remining. Since the State's rules at
CSR 38-2-2.57 define growing season to mean one year, the proposed
responsibility period of two growing seasons is equivalent to, and
therefore no less effective than, the Federal regulations at 30 CFR
816.116(c)(2)(ii).
New subsection CSR 38-2-24.4 provides that bond release for
remining operations must comply with CSR 38-2-12.2, with the exception
of subdivision 12.2.e. for Phase I, II, or III release. If all other
requirements of subsection 12.2 are satisfied, then the Director may
approve a request for Phase I, II, or III release if the quality of
untreated water discharging from the site is equal to or better than
the pre-remining water quality discharged from the site. In its
submittal of this amendment, the WVDEP stated that this change will
allow for the release of the land reclamation bond if the post-remining
water quality discharging from the site is equal to or better than pre-
remining water quality.
Under section 301(p) of the Clean Water Act, the State may issue an
NPDES permit which modifies the pH, iron, and manganese standards for
pre-existing discharges from the remined area or affected by a
qualifying remining operation. However, the permit may not allow the
pH, iron, or manganese levels of any discharge to exceed the levels
being discharged from the remined area before the advent of the coal
remining operation.
But section 301(p) does not apply to all remining operations.
Instead, it defines ``coal remining operation'' to mean a coal mining
operation which begins after February 4, 1987 (the date of enactment of
section 301(p)), at a site on which coal mining was conducted before
August 3, 1977 (the effective date of SMCRA). The U.S. Environmental
Protection Agency (EPA) declined to concur with the approval of
subsection CSR 38-2-24.4 because that subsection would allow use of the
section 301(p) standards for remining operations that began prior to
February 4, 1987, and for sites on which coal mining was originally
conducted on or after August 3, 1977.
The Federal regulations at 30 CFR 816/817.42 provide that
discharges of water from areas disturbed by surface mining activities
must be made in compliance with all applicable State and Federal water
quality laws and regulations. Because CSR 38-2-24.4 does not comply
with this requirement, it is less effective than the Federal rules.
Accordingly, we are not approving this provision. We also are requiring
that West Virginia further amend its regulations to remove CSR 38-2-
24.4.
IV. Summary and Disposition of Comments
Federal Agency Comments
On June 12, 1998, we asked for comments from various Federal
agencies who may have an interest in the West Virginia amendment
(Administrative Record Number WV-1088). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the Federal regulations. The Department of the Army, U.S. Army Corps of
Engineers responded and stated that the changes are satisfactory to the
Corps.
The U.S. Department of Labor, Mine Safety and Health Administration
(MSHA) provided the following comments. MSHA expressed concern with
section 38-2-24.1.g. which allows coal processing and underground
development waste embankments in mined-out areas to have a long-term
slope stability safety factor of 1.3. MSHA stated that a safety factor
of 1.5 is required by 30 CFR 77.215(h).
The Federal regulations at 30 CFR 77.215(h), to which MSHA referred
in its comment, requires a static safety
[[Page 26134]]
factor of 1.5 for refuse piles. Refuse piles are structures that are
built above the ground level where no material previously existed, or
are built upon previously existing built-up structures. The Federal
regulations for impoundments (30 CFR 816.49), excess spoil disposal (30
CFR 816.71), durable rock fills (30 CFR 816.73), and coal mine waste
disposal areas (30 CFR 816.81) all provide for static safety factor of
1.5. These are all structures that are constructed above the ground
level, where no material previously existed. However, the stability of
materials that will be returned to or be used to backfill the mined out
area as provided by 30 CFR 816.102 can achieve a lesser static safety
factor of 1.3. 30 CFR 816.102(e) provides that the disposal of coal
processing waste and underground development waste in the mined-out
area shall be in accordance with sections 816.81 and 816.83, except
that a long-term static safety factor of 1.3 shall be achieved. The
higher 1.5 static safety factor standard is only required where refuse
or waste will be piled into above-ground structures. The lesser 1.3
static safety factor standard is required where refuse or waste will be
used to backfill mined out areas, or to bring the land back to its
approximate original contour. The West Virginia standard at section 38-
2-24.1.g. applies only to the disposal of waste in previously mined out
areas. Therefore, the static safety standard of 1.3 is appropriate, and
no less effective than the Federal regulations at 30 CFR 816.102(e)
which provide the same standard for waste disposal in a mined-out area.
The National Park Service requested that we review the proposed
changes carefully to examine the full implication of the revisions on
the overall effectiveness of the West Virginia program. The National
Park Service also stated that, while the proposed revisions do not
alter provisions pertinent to section 522(e)(3) of SMCRA, they
nonetheless may affect the level of protection afforded various areas
under this section of SMCRA. Section 522(e)(3) provides that, subject
to valid existing rights, no surface coal mining operations except
those which exist on August 3, 1977, may be permitted if the operations
would adversely affect any publicly owned park or place included in the
National Register of Historic Places, unless the regulatory authority
and the Federal, State, or local agency with jurisdiction over the park
or the historic site jointly approve these operations. In response to
the Park Service's concerns, we note that the amendment does not in any
way compromise the protections afforded under section 522(e)(3) of
SMCRA.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to
solicit comments and obtain the written concurrence of the EPA with
respect to those provisions of the proposed program amendment that
relate to air or water quality standards promulgated under the
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean
Air Act (42 U.S.C. 7401 et seq.). By letter dated June 12, 1998, we
requested comments and concurrence from EPA on the State's proposed
amendment of May 14, 1998 (Administrative Record Number WV-1089).
By letter dated November 29, 1999 (Administrative Record Number WV-
1141), the EPA provided comments on the proposed amendment. In
addition, the EPA stated that it could not concur with the approval of
CSR 38-2-24.4 because that subsection appears to allow bond release for
sites on which remining began before February 4, 1987, and/or for sites
mined after August 3, 1977, even if the discharges from those sites do
not meet applicable effluent limitations and water quality standards.
The EPA noted that such a provision would not comply with section
301(p) of the Clean Water Act, 33 U.S.C. 1311(p).
As discussed in Finding 9, we are not approving CSR 38-2-24.4
because it would allow issuance of modified NPDES permits for
operations that do not meet the criteria established in section 301(p).
To be eligible under section 301(p), a remining operation must be a
site on which coal mining was conducted before the effective date of
SMCRA (August 3, 1977), and the remining operation must begin after the
date of the enactment of section 301(p) of the Clean Water Act
(February 4, 1987). Therefore, as submitted, CSR 38-2-24.4 is less
effective than 30 CFR 816/817.42 and we are not approving it.
The EPA supported CSR 38-2-3.14, which concerns no-cost contracts
for the removal of abandoned coal refuse piles. However, the EPA noted
that CSR 38-2-3.14.b.4.E., which requires that all necessary permits be
obtained from environmental agencies, must be interpreted as including
NPDES permits for stormwater discharges from the refuse removal
operation sites, where applicable.
As discussed in Finding 2, we are not approving subsection 3.14 to
the extent that it would apply to the removal of abandoned coal mine
refuse piles where, on average, the material to be removed meets the
definition of coal in 30 CFR 700.5. In addition, we are not approving
subsection 3.14 to the extent that it could be interpreted as applying
to the on-site reprocessing of abandoned coal refuse piles.
We determined that subsection 3.14 is less stringent than SMCRA and
less effective than the Federal regulations because it would allow the
issuance of a reclamation contract for the removal of coal refuse piles
that meet the definition of coal rather than requiring that such
operations obtain a standard regulatory program permit for surface coal
mining operations as do the Federal regulations. We also determined
that subsection 3.14.c. is less stringent than SMCRA and less effective
than the Federal regulations to the extent that it may be interpreted
as authorizing the State to issue a reclamation contract rather than a
surface coal mining operations permit for on-site reprocessing
operations. Under the Federal definition of surface coal mining
operations in 30 CFR 700.5, all on-site reprocessing operations that
separate coal from other materials in the pile must be regulated as
surface coal mining operations.
We took no position on the other revisions that West Virginia has
made to subsection 3.14. As we stated in 1990, ``the removal, transport
and use (without onsite reprocessing) of coal mine refuse which does
not meet the definition of `coal' set forth in 30 CFR 700.5; i.e., ASTM
Standard D 388-77, is not subject to regulation [under SMCRA].'' 55 FR
21314, May 23, 1990.
The EPA also stated that CSR 38-2-24.3 correctly provides that
remining operations that begin after February 4, 1987, on a site that
was mined prior to August 3, 1977, may qualify for less stringent
effluent limits under section 301(p) of the Clean Water Act. The EPA
explained that, subject to certain conditions, section 301(p) allows
replacement of most effluent limits in 40 CFR 434 with less stringent,
best professional judgement (BPJ) effluent limits if the applicant can
demonstrate that the post-remining discharge quality will be better
than, or at least equal to, the pre-remining discharge quality. As
noted in Finding 9, subsection 24.3 concerns only the issuance of NPDES
permits. Therefore, it is not subject to review and approval under
SMCRA and we do not consider it to be part of the State's approved
SMCRA regulatory program.
Public Comments
We received no comments from the public.
[[Page 26135]]
V. Director's Decision
Based on the findings in Part III of this preamble, we are
approving the proposed amendments to the West Virginia program, except
as noted below.
We are not approving CSR 38-2-3.14 to the extent that it would
apply to the removal of abandoned coal mine refuse piles where, on
average, the material to be removed meets the definition of coal in 30
CFR 700.5. In addition, we are not approving this subsection to the
extent that it could be interpreted as applying to the on-site
reprocessing of abandoned coal refuse piles. We take no position on
subsection 3.14 to the extent that it may concern the removal,
transport and use (without onsite reprocessing) of coal mine refuse
which does not meet the definition of ``coal'' in 30 CFR 700.5; such
activities are not subject to regulation under SMCRA.
In addition, we are requiring that West Virginia amend its program
to either: (1) delete subsection 3.14; or (2) revise subsection 3.14 to
clearly specify that its provisions apply only to activities that do
not qualify as surface coal mining operations as that term is defined
in 30 CFR 700.5; i.e., that subsection 3.14 does not apply to either
the removal of abandoned coal mine waste piles that, on average, meet
the definition of coal or to the on-site reprocessing of coal mine
waste piles. If the State chooses the second option, it should also
submit the sampling protocol that will be used to determine whether the
refuse piles meet the definition of coal. The sampling protocol must be
designed to ensure that no activities meeting the definition of surface
coal mining operations escape regulation under the State's SMCRA
regulatory program.
We are not approving CSR 38-2-3.32.g., 38-2-14.14.a.1., 38-2-23,
and 38-2-24.4. In addition, we are requiring that West Virginia remove
CSR 38-2-23 and 38-2-24.4.
We are removing 30 CFR 948.16(ttt).
The Federal regulations at 30 CFR part 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 23, 2000.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 948--WEST VIRGINIA
1. The authority citation for part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.12 is amended by revising the section heading and
adding a new paragraph (a) to read as follows:
Sec. 948.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
(a) We are not approving the following provisions of the proposed
program amendment that West Virginia submitted on May 11, 1998:
(1) CSR 38-2-3.14, to the extent that it could be interpreted as
applying to the on-site reprocessing of abandoned coal mine waste piles
or to the extent that it would apply to the removal of abandoned coal
refuse piles where, on average, the material to be removed meets the
definition of coal in 30 CFR 700.5.
(2) CSR 38-2-3.32.g., which concerns unanticipated events or
conditions.
(3) CSR 38-2-14.14.a.1., which concerns placement of excess spoil
outside the permit area.
(4) CSR 38-2-23, which concerns coal extraction as part of land
development activities.
(5) CSR 38-2-24.4, which concerns water quality standards for bond
release.
* * * * *
3. Section 948.15 is amended by revising the introductory text, the
table headings, and by adding a new entry to the table in chronological
order by date
[[Page 26136]]
of final rule publication to read as follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
The following table lists the dates that West Virginia submitted
proposed amendments to OSM, the dates when OSM published final rules
approving all or portions of those amendments in the Federal Register,
and the State statutory or regulatory citations for those amendments
(or a brief description of the amendment). The amendments appear in
order of the date of publication of the final rules announcing OSM's
decisions on the amendments. The preambles to those final rules
identify and discuss any assumptions underlying approval, any
conditions placed on the approval, and any exceptions to the approval.
----------------------------------------------------------------------------------------------------------------
Citation/description of
Original amendment submission date Date of publication of final rule approved provisions
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
May 11, 1998............................ May 5, 2000............................. West Virginia regulations at
CSR 38-2-2.25; 2.102;
3.32.d.12; 14.16 through
14.19; 22.5.1; 24 (except
24.4).
----------------------------------------------------------------------------------------------------------------
4. Section 948.16 is amended by removing and reserving paragraph
(ttt) and by adding paragraphs (nnnn), (oooo), and (pppp) to read as
follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(nnnn) By July 5, 2000, West Virginia must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to either delete CSR 38-2-3.14 or revise
CSR 38-2-3.14 to clearly specify that its provisions apply only to
activities that do not qualify as surface coal mining operations as
that term is defined in 30 CFR 700.5; i.e., that subsection 3.14 does
not apply to either the removal of abandoned coal mine waste piles
that, on average, meet the definition of coal or to the on-site
reprocessing of coal mine waste piles. If the State chooses the second
option, it should also submit the sampling protocol that will be used
to determine whether the refuse piles meet the definition of coal. The
sampling protocol must be designed to ensure that no activities meeting
the definition of surface coal mining operations escape regulation
under the State's SMCRA regulatory program.
(oooo) By July 5, 2000, West Virginia must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to remove CSR 38-2-23.
(pppp) By July 5, 2000, West Virginia must submit either a proposed
amendment or a description of an amendment to be proposed, together
with a timetable for adoption, to remove CSR 38-2-24.4.
[FR Doc. 00-10972 Filed 5-4-00; 8:45 am]
BILLING CODE 4310-05-P