[Federal Register Volume 66, Number 101 (Thursday, May 24, 2001)]
[Proposed Rules]
[Pages 28682-28685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13156]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-091-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing receipt of a proposed amendment to the West
Virginia regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The program amendment consists of
changes to the West Virginia Surface Mining Reclamation rules at 38 CSR
2 as contained in House Bill 2663. The amendment submitted by the State
is intended to render the West Virginia program no less effective than
the Federal requirements.
DATES: If you submit written comments, they must be received on or
before 4:00 p.m. (local time), on June 25, 2001. If requested, a public
hearing on the proposed amendments will be held at 1:00 p.m. (local
time), on June 18, 2001. Requests to speak at the hearing must be
received by 4:00 p.m. (local time), on June 8, 2001.
ADDRESSES: Mail or hand-deliver your written comments and requests to
speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston
Field Office at the address listed below.
You may review copies of the West Virginia program, the proposed
amendment, a listing of any scheduled hearings, and all written
comments received in response to this document at the addresses below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the proposed amendment by
contacting OSM's Charleston Field Office.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301 Telephone: (304) 347-7158. E-mail:
[email protected].
West Virginia Department of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515. The proposed
amendment will be posted at the Department's Internet page: http://www.dep.state.wv.us.
In addition, you may review copies of the proposed amendment during
regular business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. You can find background information
on the West Virginia program, including the Secretary's findings, the
disposition of comments, and the conditions of approval in the January
21, 1981, Federal Register (46 FR 5915-5956). You can find later
actions concerning the conditions of approval and program amendments at
30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
By letter dated May 2, 2001 (Administrative Record Number WV-1209),
the West Virginia Department of Environmental Protection (WVDEP)
submitted an amendment to its program. The program amendment consists
of changes to the West Virginia Surface Mining Reclamation rules at 38
CSR 2 as amended by House Bill 2663. The amendment submitted by the
State is intended to render the West Virginia program no less effective
than the Federal requirements.
We are not requesting comments on the proposed changes to CSR 38-2-
3.14.b.12, concerning the partial removal of coal processing refuse
piles, for the following reason. In 1990, we stated that ``the removal,
transport and use (without onsite reprocessing) of coal mine refuse
which does not meet the definition of ``coal'' set forth in 30 CFR
700.5; i.e., ASTM Standard D 388-77, is not subject to regulation
[under SMCRA].'' 55 FR 21314; May 23, 1990. CSR 38-2-3.14.b.12 pertains
to the removal of coal refuse that does not meet the definition of
coal. Therefore, it is not subject to regulation under SMCRA, and will
not be considered here.
You will find West Virginia's program amendment presented below.
1. CSR 38-2-2.39 Definition of ``Cumulative Impact''
This definition is being amended by deleting the existing language
and adding in its place the following language.
2.39. Cumulative Impact Area means the area, including the permit
area, within which impacts resulting from the proposed operation may
interact with the impacts of all anticipated mining on surface and
groundwater systems. Anticipated mining shall include the entire
projected lives through bond releases of:
2.39.a. The proposed operation;
2.39.b. All existing operations;
2.39.c. Any operation for which a permit application has been
submitted to the Director, and;
2.39.d. All operations required to meet diligent development
requirements for leased Federal coal for which there is actual mine
development information available.
2. CSR 38-2-3.12.a.1. Subsidence Control Plan
This provision is being amended by adding the words ``a narrative
indicating'' to the survey and map requirements of this subsection. As
amended, this provision requires a survey, map, and a narrative
indicating whether or not subsidence could cause material damage to the
identified structures and water supplies.
We note that this amendment is in response to the required program
amendment codified at 30 CFR 948.16(zzz). This required amendment
provides that the State must amend the West Virginia program to require
that the map of all lands, structures, and drinking, domestic and
residential water supplies which may be materially damaged by
subsidence show the type and location of all such lands, structures,
and drinking, domestic and residential water supplies within the
[[Page 28683]]
permit and adjacent areas, and to require that the permit application
include a narrative indicating whether subsidence, if it occurred,
could cause material damage to or diminish the value or reasonably
foreseeable use of such structures or renewable resource lands or could
contaminate, diminish, or interrupt drinking, domestic, or residential
water supplies. For further information, see the February 9, 1999,
Federal Register (64 FR 6201, 6206-6207).
3. CSR 38-2-3.14.a. Removal of Abandoned Coal Refuse Piles
This provision is being amended by changing the proviso concerning
material that meets the ASTM standard of the minimum BTU value to be
classified as coal. As amended, if the material at existing abandoned
coal processing waste piles meets the minimum BTU value standard to be
classified as coal, as set forth in ASTM standard D 388-99, and if not
AML eligible, a permit application which meets all applicable
requirements of this rule shall be required. Prior to this amendment,
the words ``and if not AML eligible'' did not appear in the provision,
and the provision did not require the submittal of a permit application
if the material met the minimum BTU value to be classified as coal.
This amendment has been submitted to address the required
regulatory program amendment codified at 30 CFR 948.16(nnnn). In the
May 5, 2000, Federal Register (65 FR 26130, 26130-26131), we did not
approve CSR 38-2-3.14.a. to the extent that it would apply to the
removal of abandoned coal mine refuse piles where, on average, the
material to be removed meets the definition of coal in 30 CFR 700.5. In
addition, we did not approve subsection 3.14 to the extent that it
could be interpreted as applying to the on-site processing of abandoned
coal refuse piles. Consequently, we required at 30 CFR 948.16(nnnn)
that the State amend its program to either: (1) Delete subsection 3.14;
or (2) revise subsection 14 to clearly specify that its provisions
apply only to activities that do not qualify as surface coal mining
operations as that term is defined in 30 CFR 701.5; i.e., that
subsection 3.14 does not apply to either the removal of abandoned coal
mine waste piles that, on average, meet the definition of coal or to
the on-site reprocessing of coal mine waste piles. We also stated that
if the State chooses the second option, it should also submit the
sampling protocol that will be used to determine whether the refuse
piles meet the definition of coal. The sampling protocol must be
designed to ensure that no activities meeting the definition of surface
coal mining operations escape regulation under the State counterpart to
SMCRA and the Federal regulations.
4. CSR 38-2-3.22.e. Base Line Surface Water Information
This provision is being amended by adding the following sentence.
``Material damage to the hydrologic balance outside the permit areas
means any long term or permanent change in the hydrologic balance
caused by surface mining operation(s) which has a significant adverse
impact on the capability of the affected water resource(s) to support
existing conditions and uses.''
5. CSR 38-2-16.2.c.4. Bonding for Subsidence Damage
This provision is being amended by deleting the existing first two
sentences. In their place, the following sentences are added.
The director shall issue a notice to the permittee that
subsidence related material damage has occurred to lands,
structures, or water supply, and that the permittee has ninety (90)
days from the date of notice to complete repairs or replacement. The
director may extend the ninety (90) day abatement period but such
extension shall not exceed one (1) year from the date of the notice.
Provided, however, the permittee demonstrates in writing, and the
director concurs that subsidence is not complete, that not all
probable subsidence related material [damage] has occurred to lands
or structures; or that not all reasonably anticipated changes have
occurred affecting the water supply, and that it would be
unreasonable to complete repairs or replacement within the ninety
(90) day abatement period.
In addition, the final existing sentence is being amended by adding
the following words to the end of that sentence: ``to land or
structures, or the estimated cost to replace water supply.''
This amendment is intended to address the required program
amendment codified at 30 CFR 948.16(ffff). For more information, see
Finding 26 in the February 9, 1999, Federal Register (64 FR 6201, 6212-
6213).
6. CSR 38-2-3.31.c. Federal, State, County, Municipal, or Other Local
Government-Financed Highway or Other Construction Exemption
This subsection is new, and provides the following: ``Funding less
than fifty percent (50%) may qualify if the construction is undertaken
as part of an approved reclamation project in accordance with WV Code
Sec. 22-3-28.''
This revision is intended to revise the West Virginia program to
add the additional flexibility afforded by the revised Federal
definition of the term ``government-financed construction'' at 30 CFR
707.5. For more information, see the February 12, 1999, Federal
Register (64 FR 7469).
7. CSR 38-2-3.32.g. Permit Issuance--Unanticipated Event or Condition
This provision is amended by adding new language at the end of the
existing one-sentence paragraph, and by adding three new subdivisions.
As amended, the provision is as follows:
3.32.g. The prohibition of subdivision 3.32.c shall not apply to a
permit application due to any violation resulting from an unanticipated
event or condition at a surface mine eligible for remining under permit
held by the applicant that meets the requirements of 30 CFR
773.15(4)(i). An event will be presumed to be unanticipated for
purposes of this paragraph if it:
3.32.g.1. Arose after remining permit was issued.
3.32.g.2. Was related to prior mining; and
3.32.g.3. Was not identified in the remining permit.
8. CSR 38-2-5.2.a. Intermittent or Perennial Stream Buffer Zone
This provision is amended by deleting the words, ``normal flow or
gradient of the stream, adversely affect fish migration or related
environmental values, materially damage the.'' In addition the words
``or other environmental resources'' are added. As amended, the
provision is as follows:
5.2.a. Intermittent or Perennial Stream. No land within one hundred
feet (100') of an intermittent or perennial stream shall be disturbed
by surface mining operations including roads unless specifically
authorized by the Director. The Director will authorize such operations
only upon finding that surface mining activities will not adversely
affect the water quantity and quality or other environmental resources
of the stream and will not cause or contribute to violations of
applicable State or Federal water quality standards. The area not to be
disturbed shall be designated a buffer zone and marked accordingly.
9. CSR 38-2-11.3.a.3. Surety Bonds
This provision is new, and is as follows:
11.3.a.3. Surety received after July 1, 2001 must be recognized by
the treasurer of state as holding a current certificate of authority
from the United
[[Page 28684]]
States Department of the Treasury as an acceptable surety on federal
bonds.
10. CSR 38-2-12.2.e. Bond Release
This provision is being amended by prohibiting bond release if
water discharged requires passive treatment. The provision currently
prohibits bond release if chemical treatment is needed. In addition, a
new sentence is added that clarifies that measures approved in the
permit and taken during mining and reclamation to prevent the formation
of acid drainage shall not be considered passive treatment.
This amendment is intended to address the required program
amendment codified at 30 CFR 948.16(qqq). This required amendment
requires that the West Virginia program be amended to clarify that bond
may not be released where passive treatment systems are used to achieve
compliance with applicable effluent limitations. For more information,
see Finding 2, in the February 21, 1996, Federal Register (61 FR 6511,
6517). As amended, the provision is as follows:
12.2.e. Notwithstanding any other provisions of this rule, no bond
release or reduction will be granted if, at the time, water discharged
from or affected by the operation requires chemical or passive
treatment in order to comply with applicable effluent limitations or
water quality standards. Measures approved in the permit and taken
during mining and reclamation to prevent the formation of acid drainage
shall not be considered passive treatment; Provided, That the Director
may approve a request for Phase I but not Phase II or III, release if
the applicant demonstrates to the satisfaction of the Director that
either: * * *.
11. CSR 38-2-12.4.e. Responsibility for Reclamation Costs of Forfeited
Bonds
This provision is amended by deleting the words, ``or other
responsible party.'' This amendment is intended to address the required
program amendment codified at 30 CFR 948.16(jjjj). For more
information, see the November 12, 1999, Federal Register (64 FR 61506-
61507). As amended, this provision is as follows:
12.4.e. The operator or permittee shall be liable for all costs in
excess of the amount forfeited. The Director may commence civil,
criminal or other appropriate action to collect such costs.
12. CSR 38-2-14.8.a.6. Constructed Outcrop Barriers
This provision is new. This amendment is intended to address the
required program amendment codified at 30 CFR 948.16(xx). For more
information, see Finding 32 in the February 21, 1996, Federal Register
(61 FR 6511, 6524-6525), and Finding 8(a) in the October 4, 1991,
Federal Register (56 FR 50256, 50264-50265). This new provision is as
follows:
14.8.[a.]6. Constructed outcrop barriers shall be designed using
standard engineering procedures to inhibit slides and erosion to ensure
the long-term stability of the backfill. The constructed outcrop
barriers shall have a minimum static safety factor of 1.3, and where
water quality is paramount, the constructed barriers shall be composed
of impervious material with controlled discharge points.
13. CSR 38-2-24.4. Requirements To Release Bonds
This provision is being amended by deleting language concerning an
exception to the requirements to release bonds, and by adding a new
proviso concerning revegetation. This amendment is intended to address
the required program amendment codified at 30 CFR 948.16(pppp). For
more information, see Finding 9 in the May 5, 2000, Federal Register
(65 FR 26130, 26133). As amended, the provision is as follows:
24.4. Requirements to Release Bonds. Bond release for remining
operations shall be in accordance with all of the requirements set
forth in subsection 12.2 of this rule; Provided that there is no
evidence of a premature vegetation release.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), we are
seeking comments, on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the West Virginia program.
Written Comments
If you submit written or electronic comments on the proposed
amendment during the 30-day comment period, they should be specific,
should be confined to issues pertinent to the notice, and should
explain the reason for your recommendation(s). We may not be able to
consider or include in the Administrative Record comments delivered to
an address other than the one listed above (see ADDRESSES).
Electronic Comments
Please submit Internet comments as an ASCII, Word Perfect, or Word
file avoiding the use of special characters and any form of encryption.
Please also include ``Attn: SPATS NO. WV-091-FOR'' and your name and
return address in your Internet message. If you do not receive a
confirmation that we have received your Internet message, contact the
Charleston Field office at (304) 347-7158.
Availability of Comments
Our practice is to make comments, including names and home
addresses of respondents, available for public review during our
regular business hours at the OSM Administrative Record Room (see
ADDRESSES). Individual respondents may request that we withhold their
home address from the rulemaking record, which we will honor to the
extent allowable by law. There also may be circumstances in which we
would withhold from the rulemaking record a respondent's identity, as
allowable by law. If you wish us to withhold your name and/or address,
you must state this prominently at the beginning of your comment.
However, we will not consider anonymous comments. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, you should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local
time), on June 8, 2001. The location and time of the hearing will be
arranged with those persons requesting the hearing. If no one requests
an opportunity to speak at the public hearing, the hearing will not be
held.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who testifies at a public
hearing provide us with a written copy of his or her testimony. The
public hearing will continue on the specified date until all persons
scheduled to speak have been heard. If you are in the audience and have
not been scheduled to speak and wish to do so, you will be allowed to
speak after those who have been scheduled. We will end the hearing
after all persons scheduled to speak and persons present in the
audience who wish to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
[[Page 28685]]
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. If you wish
to meet with OSM representatives to discuss the proposed amendment, you
may request a meeting by contacting the person listed under FOR FURTHER
INFORMATION CONTACT. All such meetings will be open to the public and,
if possible, notices of meetings will be posted at the locations listed
under ADDRESSES. A written summary of each meeting will be made a part
of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowed by law, this rule meets the applicable standards of
subsections (a) and (b) of that section. However, these standards are
not applicable to the actual language of state regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific state, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed state regulatory programs and program amendments
submitted by the states must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The state submittal which is the subject of this rule is based upon
counterpart federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the state. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart federal regulation.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the state submittal
which is the subject of this rule is based upon counterpart federal
regulations for which an analysis was prepared and a determination made
that the federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 14, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-13156 Filed 5-23-01; 8:45 am]
BILLING CODE 4310-05-P