[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Proposed Rules]
[Pages 24158-24162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10278]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-085-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 regulations (38 CSR 2) contained in House
Bill 4223, and changes to the Code of West Virginia contained in Senate
Bill 614. The amendments are intended to comply with the Consent Decree
between the plaintiff and the West Virginia Division of Environmental
Protection (WVDEP) entered on February 17, 2000, in the matter of Bragg
v. Robertson, No. 2:98-636 (S.D.W.Va.).
DATES: If you submit written comments, they must be received on or
before 4 p.m. (local time), on May 25, 2000. If requested, a public
hearing on the proposed amendments will be held at 1 p.m. (local time),
on May 22, 2000. Requests to speak at the hearing must be received by 4
p.m. (local time), on May 10, 2000.
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
[[Page 24159]]
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:
[email protected].
West Virginia Division of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515. The proposed
amendment will be posted at the Division's Internet page: http://www.dep.state.wv.us.
In addition, you may review copies of the proposed amendment during
regular business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the 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 letters dated March 14, 2000 (Administrative Record Number WV-
1147) and March 28, 2000 (Administrative Record Number WV-1148), and
electronic mail dated April 6, 2000 (Administrative Record Number WV-
1149), the WVDEP submitted an amendment to its program. The amendment
concerns changes to the West Virginia regulations made by the State
legislature in House Bill 4223, and changes made to the Code of West
Virginia in Senate Bill 614. Many of the amendments are intended to
comply with the Consent Decree between the plaintiff and the West
Virginia Division of Environmental Protection entered on February 17,
2000, in the matter of Bragg v. Robertson, No. 2:98-636 (S.D.W.Va.).
The amendments submitted by the WVDEP are identified below.
A. Senate Bill 614
Numerous wording and paragraph notation changes have been made.
These are nonsubstantive changes that will not be discussed. The
substantive changes are identified below.
1. W.Va. Code 22-3-3. Definitions.
At Sec. 22-3-3(e) the definition of ``approximate original
contour'' (AOC) is amended by deleting the word ``disturbed'' and
adding in its place the word ``mined.'' As amended, AOC ``means that
surface configuration achieved by the backfilling and grading of the
``mined'' areas * * *.''
At Sec. 22-3-3(u) (2), the definition of ``surface mine,''
``surface-mining'' or ``surface-mining operations'' is amended by
deleting the word ``may'' in the sentence immediately before
subdivision (i), and replacing that word with the word ``does.'' As
amended, the sentence reads: ``Surface-mining does not include any of
the following: * * *.''
At Sec. 22-3-3(y), the definition of ``lands eligible for
remining'' is amended in the second sentence by deleting the word
``may'' and adding in its place the word ``do.'' As amended, the
sentence reads: ``Surface-mining operations on lands eligible for
remining ``do'' not affect the eligibility * * *.''
2. W.Va. Code 22-3-13 General environmental protection performance
standards for surface mining; variances.
At Sec. 22-3-13(c)(3), concerning mountaintop removal mining
operations, the list of approvable postmining land uses is amended as
follows. In the first sentence, the word ``woodland'' is deleted, the
words ``commercial forestry'' are added, the words ``or fish and
wildlife habitat and recreation lands use'' are deleted, the word
``facility'' and the words ``including recreational uses'' are added.
As amended, the sentence reads as follows: ``In cases where an
industrial, commercial, agricultural, commercial forestry, residential,
public facility including recreational uses is proposed for the
postmining use of the affected land * * *.''
In addition, a new subdivision Sec. 22-3-13(c)(3)(iii) is added to
read as follows. ``(iii) obtainable according to data regarding
expected need and market.'' The previously existing subdivision (iii)
is renumbered as subdivision (iv), and so on.
3. W.Va. Code 22-3-23 Release of bond or deposits; application;
notice; duties of director; public hearings; final maps on grade
release.
At subsection Sec. 22-3-23(c), a new subdivision (c)(1) is added to
read as follows. ``(1) For all operations except those with an approved
variance from approximate original contour:'' Previously existing
subdivisions (c)(1), (2), and (3) have been relettered as (c)(1)(A),
(B), and (C). As amended, Sec. 22-3-23(c)(1) applies only to operations
that do not have an approved variance from the AOC requirements.
New subsection Sec. 22-3-23(c)(2) is added to specify the bond
release requirements that apply only to operations with an approved
variance from the AOC requirements.
B. House Bill 4223
1. CSR 38-2-2.31. Definition of commercial forestry and forestry.
This new definition is added to read as follows.
2.31.a. Commercial Forestry, as used in Subsection 7.4 of this
rule, means a long-term postmining land use designed to accomplish
the following: (1) Achieve greater forest productivity than that
found on the mine site before mining; (2) Minimize erosion and/or
sediment yield and serve the hydrologic functions of infiltrating,
holding, and yielding water commonly found in undisturbed forests;
(3) Result in biodiversity by facilitating rapid recruitment of
native species of plants and animals via the process of natural
succession; (4) Result in a premium forest that will thrive under
stressful conditions; and (5) Result in landscape, vegetation and
water resources that create habitat for forest-dwelling wildlife.
2.31.b. Forestry, as used in Subsection 7.4 of this rule, means
a long-term postmining land use designed to accomplish the
following: (1) Achieve forest productivity equal to that found on
the mine site before mining; (2) Minimize erosion and/or sediment
yield and serve the hydrologic functions of infiltrating, holding,
and yielding water commonly found in undisturbed forests; (3) Result
in biodiversity by facilitating rapid recruitment of native species
of plants and animals via the process of natural succession; and (4)
Result in landscape, vegetation and water resources that create
habitat for forest-dwelling wildlife.
2. CSR 38-2-2.31. Definition of downslope.
This definition is amended by deleting the words ``except in
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operations where the entire upper horizon above the lowest coal seam is
proposed to be partly or entirely removed.'' As amended, ``downslope''
means the land surface between the projected outcrop of the lowest coal
seam being mined along each highwall, or any mining-related
construction, and the valley floor.
3. CSR 38-2-2.98. Definition of prospecting.
This definition is amended by deleting the word ``substantial''
before the word ``disturbance'' in the first sentence. The effect of
this deletion is that the definition of ``prospecting'' is no longer
limited to those activities that cause ``substantial'' disturbance.
4. CSR 38-2-2.123 Definition of substantially disturb.
This definition is amended by deleting the word ``and'' after the
words ``significantly impact land,'' and adding in its place the word
``or.'' With this change, substantially disturb means to significantly
impact land or water resources.
5. CSR 38-2-2.136 Definition of woodlands.
This definition is deleted.
6. CSR 38-2-3.8.c Structures and support facilities.
This subsection is amended by adding a concluding sentence which
reads as follows. ``This exemption shall not apply to new and existing
coal waste facilities.''
7. CSR 38-2-3.25 Transfer, assignment, or sale of permit rights
and obtaining approval.
This subsection is amended by adding the term ``reinstatement'' in
the title of the subsection, and in four locations where the phrase
``transfer, assignment, or sale'' appears. In addition, subdivision
3.25.b. is amended by adding a sentence which states that, ``as a
condition of reinstatement, the Director may require a modification to
the mining and reclamation plan.'' With this amendment, the provisions
of CSR 38-2-3.25 will apply to reinstated permits.
8. CSR 38-2-7.2.i Commercial woodland.
This provision is amended by deleting the word ``woodland'' from
the land use category ``commercial woodland,'' and adding in its place
the word ``forestry.'' The effect of this change is that ``commercial
forestry'' is where forest cover is managed for commercial production
of timber.
9. CSR 38-2-7.3 Criteria for approving alternative postmining use
of land.
New subdivision 7.3.c. is added to provide that: ``A change in
postmining land use to grassland uses such as rangeland and/or hayland
or pasture is prohibited on operations that obtain an approximate
original contour variance described in WV Code Sec. 22-3-13(b)(25)(c).
Provided, however, That this subdivision is not effective until
Sections 7.4 and 7.5 of this rule are approved by the federal Office of
Surface Mining.''
10. CSR 38-2-7.4 Standards applicable to approximate original
contour variance operations with a postmining land use of commercial
forestry and forestry.
This provision is new and contains the following subsections:
7.4.a. Applicability. This provision applies to commercial forestry
and forestry as defined at CSR 38-2-2.31 (see item B. 1. above).
7.4.b. Requirements. This subsection contains requirements
concerning planting and management plan development, oversight
procedures, landscape criteria, soil and soil substitutes, soil
placement and grading, liming and fertilizing, ground cover vegetation,
tree species and compositions, standards of success, and front faces of
valley fills.
11. CSR 38-2-7.5 Homestead land use.
This subsection is new and contains the following subdivisions.
Subdivision 7.5.a., requires that the minimum area for a homestead
shall be at least one-half of the permit area. The remainder of the
permit area shall support an alternate AOC variance use.
Subdivision 7.5.b. concerns the terms applicable only to homestead
land use.
Subdivision 7.5.c. concerns the eligibility requirements and
responsibilities for homesteaders.
Subdivision 7.5.d. concerns the rules for the homestead lottery.
Subdivision 7.5.e. concerns the homestead plan development.
Subdivision 7.5.f. concerns the provisions for financial
commitments.
Subdivision 7.5.g. concerns the required elements for all homestead
plans.
Subdivision 7.5.h. concerns the construction and conveyance of
homestead parcels.
Subdivision 7.5.i. concerns required infrastructure.
Subdivision 7.5.j. concerns soils, soil placement and grading.
Subdivision 7.5.k. concerns requirements for reclamation maps.
Subdivision 7.5.l. concerns homestead village.
Subdivision 7.5.m. concerns community association.
Subdivision 7.5.n. concerns interim homestead management.
Subdivision 7.5.o. concerns bond release.
12. CSR 38-2-14.12. Variance from AOC requirements.
This provision is amended at subdivision 14.12.a.1. to delete the
word ``woodlands'' and add in its place the words ``commercial
forestry.''
13. CSR 38-2-14.15 Contemporaneous reclamation standards.
This provision is amended at subdivision 14.15.f. concerning
variance-permit applications to add a sentence which reads as follows:
``Furthermore, the amount of bond for the operation shall be the
maximum per acre specified in WV Code Sec. 22-3-12(c)(1).''
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments, on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the West Virginia program.
Written Comments
If you submit written or electronic comments on the proposed
amendment during the 30-day comment period, they should be specific,
should be confined to issues pertinent to the notice, and should
explain the reason for your recommendation(s). We may not be able to
consider or include in the Administrative Record comments delivered to
an address other than the one listed above (see ADDRESSES).
Electronic Comments
Please submit Internet comments as an ASCII, Word Perfect, or Word
file avoiding the use of special characters and any form of encryption.
Please also include ``Attn: SPATS NO. WV-085-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
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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 May 10, 2000. 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.
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.
[[Page 24162]]
Dated: April 7, 2000.
John A. Holbrook,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-10278 Filed 4-24-00; 8:45 am]
BILLING CODE 4310-05-P