[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
[[Page 336]]
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
[[Page 337]]
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
[[Page 338]]
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
[[Page 339]]
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
[[Page 340]]
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