[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Proposed Rules]
[Pages 335-340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-74]



[[Page 335]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-088-FOR]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The program amendment consists of a 
written response to the required program amendments codified in the 
Federal regulations. The amendment is intended to render the West 
Virginia program no less effective than the Federal requirements.

DATES: If you submit written comments, they must be received on or 
before 4:00 p.m. (local time), on February 2, 2001. If requested, a 
public hearing on the proposed amendments will be held at 1:00 p.m. 
(local time), on January 29, 2001. Requests to speak at the hearing 
must be received by 4:00 p.m. (local time), on January 18, 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: 
[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 letter dated November 30, 2000 (Administrative Record Number WV-
1189), the WVDEP submitted an amendment to its program. The amendment 
consists of the State's written response to several required regulatory 
program amendments codified in the Federal regulations at 30 CFR 
948.16.
    In its letter to OSM, the West Virginia Division of Environmental 
Protection (WVDEP) stated that the amendment submittal is a revision of 
the WVDEP's previous letter to OSM dated August 3, 2000, concerning the 
required amendments codified at 30 CFR 948.16 (Administrative Record 
Number 1172). The August 3, 2000, letter contains several attachments 
that are relevant to the November submittal. The WVDEP stated in its 
November 30, 2000, letter that the required program amendments codified 
at 30 CFR 948.16(jjj), (kkk), and (lll) will be addressed separately. 
The State's amendment also does not address the required program 
amendments that we added to the West Virginia program in a final rule 
notice published in the Federal Register on August 18, 2000 (65 FR 
50409, 50430-50431).
    We note that the State's responses to required amendments codified 
at 30 CFR 948.16(xx), (qqq), (ffff), (gggg), (hhhh), (jjjj), (nnnn), 
and (pppp) indicate that the WVDEP has submitted draft proposed 
language to the State legislature for consideration for rulemaking 
during its 2001 session. The WVDEP intends that the draft proposed 
language would satisfy the specific required program amendments 
identified above. If and when the State legislature approves new rules 
that are intended to satisfy the required program amendments identified 
above, and those rules are submitted to OSM for review and approval, we 
will announce the proposed rules in a future proposed rule notice 
published in the Federal Register. At that time we will invite public 
comment on whether those rules satisfy the relevant program amendments 
codified at 30 CFR 948.16. In addition, in the August 18, 2000, Federal 
Register, we found that the State had satisfied the required amendments 
codified at 30 CFR 948.16(www) and (xxx), and, therefore, we removed 
them.
    Presented below, you will find West Virginia's response to the 
required program amendments codified at 30 CFR 948.16(a), (dd), (ee), 
(oo), (tt), (mmm), (nnn), (ooo), (sss), (vvv)(1), (2), (3), and (4), 
(zzz), (aaaa), (bbbb), (iiii), (kkkk), (llll), (mmmm) and (oooo).
    30 CFR 948.16(a): By November 26, 1985, West Virginia must submit 
copies of proposed regulations or otherwise propose to amend its 
program to provide that all surface blasting operations (including 
those using less than five pounds and those involving surface 
activities at underground mining operations) shall be conducted under 
the direction of a certified blaster.
    State response:

    This required program amendment should be removed. Current 
language in 6.1 of the rules states ``a blaster certified by the 
Division of Environmental Protection shall be responsible for all 
blasting operations * * *''. A letter dated August 30, 1994 from 
James Blankenship (OSM) to David C. Callaghan (WVDEP Director) 
stated ``required amendment 30 CFR 948.16(a) will be removed because 
the state has removed the offending language''. (Federal counterpart 
816.61(c))

    The Administrative Record Number of the August 30, 1994, letter 
referred to above is WV-934, and is available at the locations listed 
under ADDRESSES, above.
    30 CFR 948.16(dd): By April 30, 1991, West Virginia shall submit 
proposed revisions to Subsection 38-2-9.3 of its

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surface mining reclamation regulations or otherwise propose to amend 
its program to establish productivity success standards for grazing 
land, pasture land and cropland; require use of the 90 percent 
statistical confidence interval with a one-sided test using a 0.10 
alpha error in data analysis and in the design of sampling techniques; 
and require that revegetation success be judged on the basis of the 
vegetation's effectiveness for the postmining land use and in meeting 
the general revegetation and reclamation plan requirements of 
Subsections 9.1 and 9.2. Furthermore, by that date, West Virginia shall 
submit for OSM approval its selected productivity and revegetation 
sampling techniques to be used when evaluating the success of ground 
cover, stocking or production as required by 30 CFR 816.116 and 
817.116.
    State response:

    This required program amendment should be removed. The language 
of 9.3.d. of the state rules provides that, ``Not less than two (2) 
years following the last date of augmented seeding, * * * the 
Director shall use a statistically valid sampling technique with a 
ninety (90) percent statistical confidence interval from the 
handbook''. Additionally, Chapter 20 in the WVDEP Technical Handbook 
(copy attached) describes the ``Modified Rennie Farmer Method'' 
which contains the sampling procedures and evaluative technique 
developed for West Virginia to determine revegetation success 
standards with a 90% statistical confidence.
    The productivity for grazing land, pastureland, and cropland can 
be based upon the productivity determinations for similar soil 
classifications of a particular geographic area as determined by the 
NRCS. Based upon such information, WVDEP by practice will develop a 
method to identify and measure the productivity rates for mine sites 
that are to have postmining land uses of grazing, pasture, or crop.

The information provided by the State (Chapter 20 of the WVDEP 
Technical Handbook, and a copy of a revegetation success outreach 
initiative) is available for review at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(ee): By April 30, 1991, West Virginia shall submit 
documentation that the U.S. Soil Conservation Service (SCS), now the 
NRCS, has been consulted with respect to the nature and extent of the 
prime farmland reconnaissance inspection required under Subsection 38-
2-10.1 of the State's surface mining reclamation regulations. In 
addition, the State shall either delete paragraphs (a)(2) and (a)(3) of 
Subsection 38-2-10.2 or submit documentation that the SCS State 
Conservationist concurs with the negative determination criteria set 
forth in these paragraphs.
    State response:

    This required program amendment should be removed since each 
permit application contains a soil survey in accordance with the 
standards of the National Cooperative Survey. The procedure for 
consulting the National Soil Survey Center (NSSC) formerly USSCS, is 
described in Section 34 of the Permitting Handbook (copy attached). 
Since 1983, West Virginia has had an agreement with SCS, now NRCS, 
to contact them on a case by case basis since prime farmland as 
defined by the NRCS rarely exists in the major mining counties. In 
addition, the West Virginia Soil Conservation Districts are notified 
as part of the ``affected agencies notification'' process. (Federal 
counterpart 716.7(c)). This notification would afford NRCS the 
opportunity to do an investigation and provide comment (if 
appropriate) relative to a prime farmland determination.
    In regards to deleting 10.2.a.3., the SCS at that time published 
the final rule pertaining to ``Prime and Unique Farmlands'' in the 
January 31, 1978 Federal Register, Volume 43, No. 21. In that rule, 
it states that ``the soils are not flooded frequently during the 
growing season (less than once in 2 years)'' and ``less than 10 
percent of the surface layer (upper) 6 inches) in these consists of 
rock fragments coarser than 3 inches (7.6 cm) in diameter. 
Therefore, 10.2.a.3. is consistent with the definition of Prime 
Farmland since it excludes frequently flooded soils and/or very 
rocky surfaces and is similar to its federal counterpart at 
716.7(d)(2).
    When the SCS listed the prime farmland soil mapping units for 
West Virginia, none of the units had a slope range that exceeded 10 
percent. Therefore, if the slope of all land within the permit is 10 
percent or greater, it does not contain any prime farmland soil 
mapping. The language in 10.2.a.3. is similar to its federal 
counterpart at 716.7(d)(3). As a general matter, the NRCS maps are 
used in making a vegetative determination based upon available 
information and site reconnaissance, and if there is a soil series 
(type) or other information which indicates the area could 
potentially be classified as prime farmland, then the NRCS is 
contacted for a definitive decision. WVDEP will within 90 days 
propose a consultation process with NRCS when the slope range for an 
application is less than 10%.

    The information the State referred to above (Section 34 of the 
WVDEP Permitting Handbook) is available for review at the locations 
listed under ADDRESSES, above.
    30 CFR 948.16(oo): By June 1, 1992, West Virginia shall submit 
proposed revisions to subsection 38-2-5.4(b)(8) of its surface mining 
reclamation regulations to require that excavated sediment control 
structures which are at ground level and which have an open exit 
channel constructed of non-erodible material be designed to pass the 
peak discharge of a 25-year, 24-hour precipitation event.
    State response:

    This required program amendment should be removed. In a letter 
dated August 30, 1994 from James Blankenship (Charleston Field 
Office Director of OSM) to David C. Callaghan (Director of WVDEP), 
it is stated that, ``OSM to approve state proposal as a state 
exemption'' (copy attached). This is similar to a provision of the 
Illinois approved program. A reason for providing an exemption is 
that since the terrain dictates to some degree the location and size 
of sediment control ditches and these structures (sediment ditches) 
are normally on bench and small in size, if the OSM referenced 25-
year, 24-hour design requirement applied to on bench sediment 
control ditches, the spillway would be larger than the sediment 
pond, thus providing no retention time to provide for settling of 
sediment. The WVDEP's design requirement of a ten-year 24-hour storm 
event is as effective as the federal program. Additionally OSM 
recognized in the August 30, 1994 letter that ``these types of 
structures by their very nature are not subject to catastrophic 
failure or excessive erosion. The design criteria are established to 
address these potentials and are of no significance for these 
structures * * *'' In addition, sediment control ditches are 
generally behind other sediment structures which are designed to 
pass a 25-year, 24-hour storm event.

    The Administrative Record Number of the August 30, 1994, letter 
referred to above is WV-934, and is available at the locations listed 
under ADDRESSES, above.
    30 CFR 948.16(tt): By June 1, 1992, West Virginia shall submit 
proposed revisions to subsections 38-2-5.4(b)(1) and 5.4(d)(1) to 
require that all structures be certified as having been built in 
accordance with the detailed designs submitted and approved pursuant to 
subsection 3.6(h)(4), and to require that as-built plans be reviewed 
and approved by the regulatory authority as permit revisions.
    State response:

    This required program amendment should be removed. The WVDEP has 
developed a procedure for review of as-built certifications. (This 
procedure is included in the WVDEP Inspection and Enforcement 
Handbook--copy attached.) For structures with minor design changes, 
the inspector will submit as-built plans in accordance with 5.4.b. 
Minor changes are those within the construction tolerances described 
in 3.35 of the rules. For structures with major design changes, a 
permit revision in accordance with 3.28.c of the rules is required 
to be submitted and approved prior to certification. The ``as 
built'' certifications are after review incorporated as part of the 
permit and the ``as built'' drawings become the design for the 
structure. A 1988 OSM directive (copy attached) describes the 
federal policy and procedures for processing construction 
certifications when they indicate that a structure has been 
constructed differently from the approved design and this OSM 
directive treats ``as built'' certifications in a manner similar to 
the WV program.

    The information submitted by the State (the WVDEP Inspection and

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Enforcement Handbook--section on Drainage System Certifications, and 
the 1988 OSM directive on Construction Certification of Siltation 
Structures (TSR-9)) is available at the locations listed under 
ADDRESSES, above. TSR-9 is also available via the Internet at: http://www.osmre.gov/.
    30 CFR 948.16(mmm): By August 1, 1996, West Virginia must submit 
either a proposed amendment or a description of an amendment to be 
proposed, together with a timetable for adoption, to revise Sec. 22-3-
13(e) to limit the authorization for a variance from approximate 
original contour to industrial, commercial, residential, or public 
alternative postmining land use, in accordance with section 515(e)(2) 
of SMCRA.
    State response:

    This required program amendment is being addressed in a code 
change submitted to the OSM on March 17, 2000. A copy of the change 
to WV Code 22-3-13(e) is attached and pending OSM action. 
Additionally, a policy was implemented which requires a market need 
analysis as set forth in the federal regulations. The policy will 
operate until such time as OSM approves the program amendment.

    A copy of the change to WV Code 22-3-13, and the policy referred to 
above are available at the locations listed under ADDRESSES, above. We 
note that the State's response above is not correct, in that the change 
submitted to OSM on March 17, 2000, was to WV Code 22-3-13(c)(3) 
concerning mountaintop removal mining, and not to WV Code 22-3-13(e) 
concerning steep slope mining operations.. See the August 18, 2000, 
Federal Register (65 FR 50409, 50410) for our findings concerning WV 
Code 22-3-13(c)(3).
    30 CFR 948.16(nnn): By September 14, 1998, West Virginia must 
submit either a proposed amendment or a description of an amendment to 
be proposed, together with a timetable for adoption, to revise Section 
22B-1-7(d) to remove unjust hardship as a criterion to support the 
granting of temporary relief from an order or other decision issued 
under Chapter 22, Article 3 of the West Virginia Code.
    State response:

    This required program amendment should be removed. Since 22B-1-
7(d) applies to administrative, environmental boards created for 
appeals other than SMCRA purposes, requiring deletion of the 
provision to such boards is beyond OSM jurisdiction. WVDEP in stay 
hearings before the Surface Mine Board has informed the Board that 
unjust hardship is an invalid basis to grant temporary relief for 
SMCRA purposes. The Surface Mine Board can, under 22B-1-3(b)(6)(c), 
establish procedural rules for temporary relief which in the 
position of WVDEP should be the same as those that the director must 
apply in considering a request for temporary relief. (See WVC 22-3-
17(f)). However, WVDEP does acknowledge that 22B-1-7(d) should be 
revised to delete unjust hardship as a criterion to support the 
granting of temporary relief from an order or other decision issued 
under Chapter 22, Article 3 of the West Virginia Code.

    30 CFR 948.16(ooo): By September 14, 1998, West Virginia must 
submit either a proposed amendment or a description of an amendment to 
be proposed, together with a timetable for adoption, to revise Section 
22B-1-7(h) by removing reference to Article 3, Chapter 22.
    State response:

    This required program amendment should be removed. The appeals 
heard by the Environmental Quality Board referenced in WV Code 22B-
11-7(h) are not SMCRA issues but are related to the West Virginia 
Water Pollution and Control Act at WV Code 22-11-1 et.seq. 
Therefore, this does not fall under OSM jurisdiction. WVDEP does 
acknowledge that the reference in WV Code 22B-1-7(h) to ``22-3-1 et 
seq.'' is inappropriate and should be removed by the Legislature.

    30 CFR 948.16(sss): By August 1, 1996, West Virginia must submit 
either a proposed amendment or a description of an amendment to be 
proposed, together with a timetable for adoption, to revise CSR 
Sec. 38-2-14.5(h) and Sec. 22-3-24(b) to clarify that the replacement 
of water supply can only be waived under the conditions set forth in 
the definition of ``Replacement of water supply,'' paragraph (b), at 30 
CFR 701.5.
    State response:

    This required program amendment should be removed. The 
provisions of 30 CFR 701.5(b) for replacement of water supply states 
``If the affected water supply was not needed for the use in 
existence at the time of loss, contamination, or diminution, and if 
the supply is not needed to achieve the postmining land use, 
replacement requirements may be satisfied by demonstrating that a 
suitable alternative water source is available and could be 
developed.'' The requirement to identify an alternative source of 
water if it is likely the proposed mining operation may impact the 
quantity or quality of a significant aquifer is already a 
requirement for the PHC under 3.22.b.4. and 3.22.c.4. and in the 
hydrologic reclamation plan (3.22.f.5.). Therefore, this information 
is required regardless of whether a waiver was requested when a 
significant aquifer is likely to be contaminated or otherwise 
impacted. The repair or replacement requirement for water supplies 
impacted by mining is contained in WV Code 22-3-24.

    30 CFR 948.16(vvv)(1): Amend the West Virginia program to be 
consistent with 30 CFR 701.11(e)(2) by clarifying that the exemption at 
CSR 38-2-3.8(c) does not apply to (1) the requirements for new and 
existing coal mine waste disposal facilities; and (2) the requirements 
to restore the land to approximate original contour.
    State response:

    This required program amendment should be removed. The state 
regulation in 3.8.c. was amended to not apply to new and existing 
coal waste facilities and was submitted to the Office of Surface 
Mining on March 17, 2000 as a program amendment. A copy of the 
revised 3.8.c. is attached and is pending OSM action. The state saw 
no need to add language about approximate original contour to 
regulation at 3.8(c) since the WV Surface Coal Mining and 
Reclamation Act performance standard at 22-3-13(b)(3) is clear about 
the requirement to restore the approximate original contour with 
respect to surface mines.

    A copy of the change to CSR 38-2-3.8.c. is available at the 
locations listed under ADDRESSES, above. See the August 18, 2000, 
Federal Register (65 FR 50409, 50413) for our final rule notice 
approving the State's change which clarifies that the exemption at CSR 
38-2-3.8.c. does not apply to new and existing coal waste facilities. 
We amended 30 CFR 948.16(vvv)(1) by deleting the requirement to clarify 
that the exemption at CSR 38-2-3.8(c) does not apply to the 
requirements for new and existing coal mine waste disposal facilities. 
However, we are continuing to require at 30 CFR 948.16(vvv)(1) that the 
State clarify that the exemption at CSR 38-2-3.8(c) does not apply to 
the requirement to restore the land to approximate original contour.
    30 CFR 948.16(vvv)(2): Amend CSR 38-2-4.12 to reinstate the 
following deleted language: ``and submitted for approval to the 
Director as a permit revision.''
    State response:

    This required program amendment should be removed. The WVDEP has 
a procedure for review of as-built certifications. (This procedure 
is included in the Inspection and Enforcement Handbook under 
Drainage System Certifications.) For structures with minor design 
changes, the operator is to submit as-built plans in accordance with 
5.4.b.1. Minor changes are those within the construction tolerances 
described in 3.35 of the rules. The ``as built'' certifications are 
after review incorporated as part of the permit and the ``as built'' 
drawings become the design for the structure. For structures with 
major design changes, a permit revision in accordance with 3.28.c of 
the rules is required to be submitted and approved as part of the 
permit prior to certification. In addition, the WVDEP approach 
appears to be consistent with the OSM position expressed in the OSM 
directive (copy attached).

    The information submitted by the State (the WVDEP Inspection and 
Enforcement Handbook--section on

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Drainage System Certifications, and the 1988 OSM directive on 
Construction Certification of Siltation Structures (TSR-9)) are 
available at the locations listed under ADDRESSES, above. TSR-9 is also 
available via the Internet at: www.osmre.gov/.
    30 CFR 948.16(vvv)(3): Amend the West Virginia program by 
clarifying that the requirements at CSR 38-2-5.4(c) also apply to 
slurry impoundments.
    State response:

    This required program amendment should be removed. The state 
program does clarify that 5.4 applies to slurry impoundments. In 
22.4.c., small impoundments, it states ``coal refuse sites which 
results in impoundments which are not subject to the Dam Control Act 
or the Federal Mine Health and Safety Act shall be designed, 
constructed, and maintained subject to the requirements of this 
subsection and 5.4 and 22.5.j.6.'' This requirement is similar to 
and as effective as that which appears at 816/817.49 (a)(2) and 
(a)(9).

    30 CFR 948.15(vvv)(4): Amend CSR 38-2-14.15(m), or otherwise amend 
the West Virginia program to require compliance with 30 CFR 816/817.81 
(b), (d), and (e) regarding coal refuse disposal, foundation 
investigations and emergency procedures and to clarify that where the 
coal processing waste proposed to be placed in the backfill contains 
acid- or toxic-producing materials, such material must not be buried or 
stored in proximity to any drainage course such as springs and seeps, 
must be protected from groundwater by the appropriate use of rock 
drains under the backfill and along the highwall, and be protected from 
water infiltration into the backfill by the use of appropriate methods 
such as diversion drains for surface runoff or encapsulation with clay 
or other material of low permeability.
    State response:

    This required program amendment should be removed. The refuse 
placed pursuant to 14.15(m) is placed into the mine workings or 
excavation areas. This placement in accordance with the backfilling 
and grading, stability and toxic material handling plans is 
consistent with the provisions of 30 CFR 816/817.81.

    30 CFR 948.16(zzz): By April 12, 1999, West Virginia must submit 
either a proposed amendment or a description of an amendment to be 
proposed, together with a timetable for adoption to revise 38-2-
3.12.a.1., or otherwise 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 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, or residential water supplies.
    State response:

    This required program amendment should be removed. It is the 
WVDEP's position that 3.12.a.1. is as effective as 784.20.a. (1) and 
(2). The wording of 3.12.a.1. requires that the applicant make a 
finding on whether or not subsidence could cause material damage or 
diminution of value or use of structures or renewable resource 
lands; or could contaminate, diminish or interrupt water supplies. 
Consequently, the applicant must submit supporting documentation 
that subsidence will or will not cause material damage or diminish, 
contaminate or interrupt water supplies.''
    The WVDEP contends that the phrase ``adjacent areas within an 
angle of draw of at least 30 deg.'' is as effective as ``adjacent 
areas''. In 30 CFR 701.5, adjacent area is defined as ``the area 
outside the permit area where a resource or resources, determined 
according to the context in which adjacent area is used, are or 
reasonably could be expected to be adversely impacted by the 
proposed mining operations, including probable impacts from 
underground workings.'' Therefore, adjacent area for subsidence is 
the area where it can reasonably be expected that adverse impacts 
related to subsidence could be caused by the proposed underground 
working. This fits in with the language of 12.a.1. that provides, 
``adjacent areas within an angle of draw of at least 30 deg.'', 
Provided, however, an angle of draw other than 30 deg. can be used * 
* *''. Historic data and publications have demonstrated that one can 
reasonably expect impacts from subsidence within an angle of draw of 
at least 30 deg.. However, based upon geological factors, the mining 
plan and historic information of the area, the impact area related 
to subsidence can be expanded and this is done in the form of a 
correction sent to the applicant by WVDEP.
    In addition, to assess the potential impacts to ground and 
surface water resources, the WVDEP requires an applicant to conduct 
a ground water and surface water inventory which includes all areas 
within \1/2\ mile of the proposed operation, including the 
underground mine limits. (See instructions for completing the 
application, Section J, copy attached.) If a surface or ground water 
resource could be impacted, it is identified in the Cumulative 
Hydrologic Impact Assessment, it is monitored and a plan developed 
as part of the permit which includes not only measures to protect 
such water resource, but a contingency plan is required to describe 
what steps are to be taken if it is impacted.

    The information submitted by the State (instructions for completing 
the application, Section J) is available at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(aaaa): By April 12, 1999, West Virginia must submit 
either a proposed amendment or a description of an amendment to be 
proposed, together with a timetable for adoption to revise CSR 38-2-
3.12.a.2., or otherwise amend the West Virginia program to require that 
the water supply survey required by CSR 38-2-3.12.a.2. include all 
drinking, domestic, and residential water supplies within the permit 
area and adjacent area, without limitation by an angle of draw, that 
could be contaminated, diminished, or interrupted by subsidence.
    State response:

    The state contends that 38-2-3.12.a.2. is as effective as 30 CFR 
784.20(a)(3) for among other things, the reasons specified in (zzz) 
above.

    30 CFR 948.16(bbbb): By April 12, 1999, West Virginia must submit 
either a proposed amendment or a description of an amendment to be 
proposed, together with a timetable for adoption to revise 38-2-
3.12.a.2., or otherwise amend the West Virginia program to require that 
the permit applicant pay for any technical assessment or engineering 
evaluation used to determine the premining condition or value or non-
commercial buildings or occupied residential dwellings or structures 
related thereto and the quality of drinking, domestic or residential 
water supplies, and to require that the applicant provide copies of any 
technical assessment or engineering evaluation to the property owner 
and to the regulatory authority.
    State response:

    The rules at 3.12. are clear that the pre-subsidence survey is 
the responsibility of the applicant and that the applicant must 
provide the results of the survey including information and data 
used to develop the survey to the property owner and the director. 
The state has developed guidelines to provide assistance in 
evaluating whether the survey adequately documents pre-subsidence 
conditions (copy attached). Also refer to the response to (zzz) 
above. Consequently, WVDEP contends that the provisions of 3.12 
provide for subsidence control plans that are as effective as those 
authorized by OSM. This is particularly true in light of the order 
entered April 27, 1999 in the District of Columbia, United States 
Court of Appeals in National Mining Association v. Babbitt, No. 98-
5320.

    The information submitted by the State (procedures for pre-
subsidence structure survey) is available at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(iiii): By July 13, 1999, West Virginia must submit 
either a

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proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to:
    (1) Amend section 22-3-13(c)(3) of the West Virginia program to 
remove the phrase ``or fish and wildlife habitat and recreation 
lands''; and
    (2) Amend ``public use'' at section 22-3-13(c)(3) to include the 
term ``facility'' and to further clarify that the term will be 
interpreted the same as ``public facility (including recreation 
facilities) use'' at SMCRA section 515(c)(3).
    State response:

    This was submitted to OSM on March 17, 2000. A copy of the 
proposed change to WV Code 22-3-13(c)(3) is attached and pending OSM 
action.

    See the August 18, 2000, Federal Register (65 FR 50409, 50410-
50411) for our finding concerning this required amendment. In that 
finding, we determined that the State had partially satisfied the 
required amendment at 30 CFR 948.16(iiii). Consequently, we amended the 
required amendment at 30 CFR 948.16(iiii) to read as follows: ``By 
October 17, 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 amend the term ``recreational uses'' at W.Va. 
Code 22-3-13(c)(3) to mean `recreational facilities use' at SMCRA 
section 515(c)(3).''
    30 CFR 948.16(kkkk): By January 11, 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 the words 
``upon request'' at W. VA. Code 22-3-13a(g), or otherwise amend its 
program to require that a copy of the pre-blast survey be provided to 
the owner and/or occupant even if the owner or occupant does not 
specifically request a copy.
    State response:

    The WVDEP has submitted rules that are currently being reviewed 
by the OSM. Then WVDEP will propose a code and regulation change for 
the 2001 legislative session.

    See the proposed rule notice concerning the State's blasting rules 
that we published on December 5, 2000 (65 FR 75889). In addition, the 
proposed blasting rules are available at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(llll): By January 11, 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 the phrase 
``or the surface impacts of the underground mining methods'' from 22-3-
13a(j)(2), or otherwise amend its program to clarify that the surface 
blasting impacts of underground mining operations are subject to the 
requirements of 22-3-13a.
    State response:

    The WVDEP has submitted rules that are currently being reviewed 
by the OSM. If rules do not satisfactorily address this issue, then 
WVDEP will propose a code change for the 2001 legislative session.

    See the proposed rule notice concerning the State's blasting rules 
that we published on December 5, 2000 (65 FR 75889). In addition, the 
proposed blasting rules are available at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(mmmm): By January 11, 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 the phrase 
``of overburden and coal'' from W.Va. Code 22-3-30a(a), or to otherwise 
clarify that its general surface coal mining blasting laws and 
regulations apply to all blasting at surface coal mining and 
reclamation operations and surface blasting activities incident to 
underground coal mining, including, but not limited to, initial rounds 
of slopes and shafts.
    State response:

    The WVDEP submitted rules that are currently being reviewed by 
the OSM. If rules do not satisfactorily address this issue, then 
WVDEP will propose a code change for the 2001 legislative session.

    See the proposed rule notice concerning the State's blasting rules 
that we published on December 5, 2000 (65 FR 75889). In addition, the 
proposed blasting rules are available at the locations listed under 
ADDRESSES, above.
    30 CFR 948.16(oooo): Remove CSR 38-2-23.
    State response:

    The WVDEP proposed to delete this section in the rule change for 
the 2001 legislative session. However, the WVDEP Advisory Council 
indicated that the proposed deletion be removed from the final rule 
change. A copy of the Advisory Council's minutes is attached. 
Additionally, because of local geographic conditions, WVDEP will 
continue to pursue approval of incidental coal removal so that 
potentially unregulated excavation for development can be regulated 
without wasting of the coal.

    The information submitted by the State (the minutes of the July 6, 
2000, meeting of the Environmental Protection Advisory Council) is 
available at the locations listed under ADDRESSES, above. CSR 38-2-23 
concerns special authorization for coal extraction as an incidental 
part of development of land for commercial, residential, or civic use. 
See the May 5, 2000, Federal Register (65 FR 26130, 26133) for our 
finding and explanation for the required program amendment codified at 
30 CFR 948.16(oooo). Also see the February 9, 1999, Federal Register 
(6201, 6204) for our finding concerning WV Code 22-3-28(a), (b), and 
(c) which concern special authorizations to engage in surface mining 
incidental to the development of land for commercial, residential, 
industrial, or civic use.

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-088-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

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will make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Public Hearing

    If you wish to speak at the public hearing, you should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. (local 
time), on January 18, 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.

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: December 22, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-74 Filed 1-2-01; 8:45 am]
BILLING CODE 4310-05-P