[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71832-71840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30609]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-096-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendments.
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SUMMARY: We are announcing our approval with one exception of
amendments to the West Virginia surface coal mining regulatory program
(the West Virginia program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). The amendments we are
approving concern changes to the Code of State Regulations as contained
in State House Bill 4163 and Senate Bill 2002, concerning
contemporaneous reclamation of mine land.
EFFECTIVE DATE: December 3, 2002.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the West Virginia Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a) (1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915). You can also find later actions
concerning West Virginia's program and program amendments at 30 CFR
948.10, 948.12, 948.13, 948.15, and 948.16.
II. Submission of the Amendment
By letter dated April 9, 2002 (Administrative Record Number WV-
1296), the West Virginia Department of Environmental Protection (WVDEP)
sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). The proposed amendment consists of several changes to the
Code of State Regulations (CSR) at 38-2, and the addition of new CSR
38-4, the Coal Related Dam Safety Rules, as contained in House Bill
4163.
We announced receipt and provided an opportunity to comment on the
amendment in the June 6, 2002, Federal Register (67 FR 38919)
(Administrative Record Number WV-1311). The comment period closed on
July 8, 2002. We received comments from the U.S. Department of Labor,
Mine Safety and Health Administration.
By letter and electronic mail dated June 19, 2002, WVDEP sent us
additional amendments to its program that are contained in Senate Bill
2002 concerning changes to CSR 38-2 (Administrative Record Number WV-
1316). Senate Bill 2002 was signed by the Governor on June 21, 2002.
Senate Bill 2002 authorized the WVDEP to promulgate revisions to its
Surface Mining and Reclamation Regulations.
We announced receipt of the proposed amendments in the August 16,
2002, Federal Register (67 FR 53542) (Administrative Record Number WV-
1322). In that notice, we also identified proposed amendments that we
inadvertently omitted identifying in the June 6, 2002, Federal Register
notice, including the new Coal Related Dam Safety Rules at CSR 38-4.
The comment period closed on September 16, 2002. We received comments
from the U.S. Department of Labor, Mine Safety and Health
Administration, the U.S. Fish and Wildlife Service, and the
Environmental Protection Agency.
Revisions to the State's contemporaneous reclamation requirements
are contained in the two amendment submittals discussed above. In order
to expedite our review of the State's amendments to its contemporaneous
reclamation provisions, we have separated those amendments from the two
amendment submittals discussed above. In this notice, we are presenting
our findings only on the proposed amendments to the State's
contemporaneous reclamation requirements at CSR 38-2-14.15. We will
present our findings on the remainder of the amendments submitted by
the State on April 9 and June 19, 2002, in a separate Federal Register
notice at a later date.
III. OSM's Findings
For the reasons discussed below, we are approving, with one
exception, the proposed amendments to the State's contemporaneous
reclamation standards at CSR 38-2-14.15. Any revisions that we do not
specifically discuss below concern nonsubstantive wording or editorial
changes that do not require specific approval.
1. CSR 38-2-14.15.a.1
This provision concerns backfilling and grading of spoil that is
returned to the mined out area. The first sentence in this provision
has been amended by adding the phrase ``unless a waiver is
[[Page 71833]]
granted pursuant to W. Va. Code [Code of West Virginia] 22-3-13(c)(2)''
between the words ``approximate original contour'' and the words ``with
all highwalls eliminated.'' As amended, the first sentence is as
follows:
14.15.a.1. Spoil returned to the mined-out area shall be
backfilled and graded to the approximate original contour unless a
waiver is granted pursuant to W. Va. Code 22-3-13(c)(2) with all
highwalls eliminated.
This amended provision authorizes an exception to the requirement
to return land to approximate original contour (AOC) pursuant to a
waiver granted pursuant to W. Va. Code 22-3-13(c)(2) concerning
mountaintop removal mining operations. SMCRA contains such a variance
from the requirements to return land to AOC for mountaintop removal
mining operations at section 515(c)(2). Therefore, we find that this
amendment does not render the West Virginia program less stringent than
SMCRA and can be approved.
2. CSR 38-2-14.15.a.2
This provision, which was transferred from former Subdivision
14.15.b.6.B.1. and slightly modified, provides as follows:
14.15.a.2. All permit applications shall incorporate into the
required mining and reclamation plan a detailed site specific
description of the timing, sequence, and areal extent of each
progressive phase of the mining and reclamation operation which
reflects how the mining operations and the reclamation operations
will be coordinated so as to minimize the amount of disturbed,
unreclaimed area, and to quickly establish and maintain a specified
ratio of disturbed versus reclaimed area throughout the life of the
operation.
In effect, this modified provision provides that the required
mining and reclamation operations plan submitted with each permit
application, include a detailed site-specific description of the
timing, sequence, and areal extent of each progressive phase of
proposed mining and reclamation operations. Such detailed site-specific
description should provide a clear indication of how the mining and
reclamation operations will be coordinated by the permittee. The
required information should enable the WVDEP to assess the potential
effectiveness of the proposed mining and reclamation operations plan in
complying with the contemporaneous reclamation requirements at CSR 38-
2-14.15. We find that this proposed provision is consistent with and no
less effective than the Federal mining and reclamation plan
requirements at 30 CFR 780.11 and 780.18, and consistent with the
Federal contemporaneous reclamation requirements at 30 CFR 816.100 and
can be approved.
3. CSR 38-2-14.15.b.5
This provision is amended by adding a sentence to the end of the
existing provision that provides as follows:
Regardless of the allowable limits contained in this section, any
disturbed area other than those specified in subdivision 14.15.c. of
this rule must complete backfilling and rough grading within 180 days
of final mineral removal.
As amended, CSR 38-2-14.15.b.5. provides as follows:
14.15.b.5. Where the operation consists of multiple seam mining
along the topographic contour on steep or non-steep slopes, and
where the coal seams running through the mountain, hill, or ridge
are only partially removed, disturbed and unreclaimed acreage
including excess spoil disposal sites, shall not exceed two hundred
(200) acres or fifty (50) percent of the permit area, whichever is
less. Augering and/or highwall mechanical mining which becomes a
part of these types of operations shall be incorporated into the
operation in such a fashion so as to meet the subject acreage
limitations. Regardless of the allowable limits contained in this
section, any disturbed area other than those specified in
subdivision 14.15.c. of this rule must complete backfilling and
rough grading within 180 days of final mineral removal.
In effect, this provision sets the standard for completion of rough
backfilling and grading of multiple seam mining operations where the
coal seams are only partially removed at 180 days, except for those
areas classified as ``reclaimed'' and exempted under subdivision
14.15.c.2., as discussed below. The Federal time and distance standards
for backfilling and grading at 30 CFR 816.101 have been indefinitely
suspended (57 FR 33875, July 31, 1992). However, we find that this
provision is not inconsistent with the Federal requirements at 30 CFR
816/817.100 concerning contemporaneous reclamation and can be approved.
4. CSR 38-2-14.15.b.6.A
This provision concerns disturbed and unreclaimed acreage
limitations for mountaintop mining operations or combination
mountaintop mining operations with incidental contour mining. The
provision was amended by adding the following language after the second
sentence:
Where operations contemplated under this [sub]section are
approved with incidental contour mining, which may include augering
or highwall mining, the acreage must be calculated in the allowable
disturbance authorized in this paragraph. The incidental contour pit
length cannot exceed 3000 feet and backfilling/grading shall follow
mineral removal within 180 days. Regardless of the allowable limits
contained in section fourteen of this rule, any disturbed area other
than those specified in subdivision 14.15.c. of this rule must
complete backfilling and rough grading within 180 days of final
mineral removal. Operations required to comply with AOC+ guidelines
or approved specific post-mining land use requirements must complete
backfilling and rough grading within 270 days of final mineral
removal unless a waiver is otherwise granted by the Secretary
pursuant to this [sub]section.
As amended, CSR 38-2-14.15.b.6.A. provides as follows:
14.15.b.6.A. Disturbed and unreclaimed acreage, including excess
spoil disposal sites, shall not exceed thirty-five (35) percent of
the total permit acreage, or three hundred (300) acres, whichever is
less. Provided; however, the Secretary may grant a variance not to
exceed five hundred (500) acres on operations which consist of
multiple spreads of equipment. Where operations contemplated under
this [sub]section are approved with incidental contour mining, which
may include augering or highwall mining, the acreage must be
calculated in the allowable disturbance authorized in this
paragraph. The incidental contour pit length cannot exceed 3000 feet
and backfilling/grading shall follow mineral removal within 180
days. Regardless of the allowable limits contained in section
fourteen of this rule, any disturbed area other than those specified
in subdivision 14.15.c. of this rule must complete backfilling and
rough grading within 180 days of final mineral removal. Operations
required to comply with AOC+ guidelines or approved specific post-
mining land use requirements must complete backfilling and rough
grading within 270 days of final mineral removal unless a waiver is
otherwise granted by the Secretary pursuant to this [sub]section.
The ratio of disturbed and unreclaimed acreage versus reclaimed
or undisturbed acreage shall be shown on progress maps submitted
annually or as otherwise required by the Secretary. The subject
ratios shall be verified by the Secretary to be consistent with the
mining and reclamation plan on the next regular inspection following
receipt of the progress map.
Under the proposed rule, mountaintop mining operations with
incidental contour mining, which may include auger or highwall mining,
will have to complete backfilling and grading of the incidental contour
pit within 180 days of mineral removal. In addition, proposed
mountaintop mining operations with complete coal removal, and
mountaintop mining operations with contour mining with partial coal
removal are required to complete backfilling and rough grading of any
disturbed areas within 180 days of final mineral removal. However,
mountaintop mining operations subject to the recently developed AOC
guidelines (also known as AOC+ guidelines) or with specific postmining
[[Page 71834]]
land uses must be backfilled and graded within 270 days of final
mineral removal, unless a waiver is granted by the Secretary.
The AOC+ guidelines referred to above are dated January 27, 2000,
and took effect on March 24, 2000. The AOC+ guidelines are to be used
in determining when AOC has been achieved by surface coal mining
operations in steep slope areas of the State. They are also used in
determining when placement of excess spoil in fills has been optimized
by applicants both seeking or not seeking an AOC variance. The AOC+
guidelines do not apply to contour mining operations. Those operations
are subject to the AOC/Excess Spoil Guidance document that was issued
on March 16, 1999. OSM and other Federal agencies have concurred with
the State's AOC+ guidelines, because they have been found to be useful
in providing guidance on AOC demonstrations within the context of the
approved State regulatory program (Administrative Record Numbers WV-
1150, WV-1153, and WV-1154).
As proposed, mountaintop mining operations without exceptions to
AOC that are subject to the AOC+ guidelines or mountaintop removal
mining operations with the approvable postmining land uses at
subsection 22-3-13(c)(3) of the West Virginia Surface Coal Mining and
Reclamation Act would be required to complete backfilling and rough
grading within 270 days of final coal removal, unless a waiver is
granted by the State. To date, only a few mountaintop mining operations
have been approved by the State pursuant to the AOC+ guidelines and are
required to complete backfilling and grading within 270 days of final
coal removal. All contour and mountaintop mining operations that were
approved prior to March 24, 2000, must complete backfilling and grading
within 180 days of final coal removal. Therefore, all contour mining
operations and most mountaintop mining operations that have been
approved by the State to date would have to complete backfilling and
grading within 180 days of final coal removal.
We note that, as required by proposed CSR 38-2-14.15.a.2, the
operator through the proposed mining and reclamation operations plan,
which will contain detailed site-specific information concerning the
timing, sequence, and areal extent of each progressive phase of the
mining and reclamation operations, must minimize the amount of
disturbed area throughout the life of the mining operation. This
information will be supplemented with progress maps that the operator
will have to submit to ensure compliance with the mining and
reclamation plan. We anticipate that the permit application will
specify the need for any waiver of these requirements, and provide the
regulatory authority with sufficient information it needs in granting
such waivers.
The Federal time and distance standards for backfilling and grading
at 30 CFR 816.101 have been indefinitely suspended (57 FR 33875, July
31, 1992). However, the remaining Federal regulations at 30 CFR 816/
817.100 require that reclamation efforts, including backfilling and
grading, occur as contemporaneously as practicable with the mining
operations. We find that the proposed provisions are reasonable and
further limit the amount of disturbed area that can go unreclaimed at
any time under the State's contemporaneous reclamation requirements by
imposing time and distance limitations on backfilling and grading.
Because the proposed revisions are not inconsistent with the Federal
regulations at 30 CFR 816/817.100, they can be approved.
5. CSR 38-2-14.15.b.6.B
This provision concerns mountaintop removal mining operations or
combination mountaintop removal and contour mining operations that use
draglines with a bucket capacity of greater than 45 cubic yards. This
provision is amended by deleting existing paragraphs 14.15.b.6.B.1. and
B.2, and replacing these provisions with new paragraph 14.15.b.6.B.1.
As amended, CSR 38-2-14.15.b.6.B. provides as follows:
14.15.b.6.B. On operations which utilize draglines with a bucket
capacity of greater than forty-five (45) cubic yards, the
requirements of subparagraph 14.15.b.6.A. of this paragraph is
waived and the following contemporaneous reclamation requirements
apply:
14.15.b.6.B.1. Pre-stripping or benching operations cannot
exceed four hundred (400) acres for any single permit and cannot
precede dragline operations more than twenty-four (24) months unless
otherwise approved by the Secretary or necessary to satisfy AOC+
requirements, specific post-mining land use requirements or special
materials handling facilities requirements. All fill construction
must occur during this phase of operation and be conducted in
accordance with subdivision 14.15.d. of this rule.
14.15.b.6.B.2. Rough backfilling and regrading shall be
completed within one hundred (180) days following coal removal and
not more than four (4) spoil ridges behind the pit being worked, the
spoil form the active pit constituting the first spoil ridge; and
14.15.b.6.B.3. The ratio of disturbed acreage versus reclaimed
or undisturbed acreage shall be shown on progress maps submitted
annually or as otherwise required by the Secretary.
Under the proposed rule, mountaintop removal or combination
mountaintop removal and contour mining operations that use draglines
with a bucket capacity of greater than 45 cubic yards cannot allow pre-
stripping activities of more than 400 acres and such activities cannot
precede the dragline operation by more than 24 months, unless approved
by the Secretary. These criteria represent the maximum amount of
acreage disturbance and time that pre-stripping or benching operations
can precede the dragline operation. Currently, there are about five
draglines operating in West Virginia. Pre-stripping or benching
operations include that disturbance which is necessary to prepare an
area for the dragline to operate safely and effectively. These
operations may involve the mining of one or more coal seams in advance
of the dragline in order to prepare for additional coal removal. Under
the previous rules, the area of disturbance preceding the dragline
could not exceed 400 acres. Under the proposed revision, the State will
also impose a time limitation of 24 months on pre-stripping or benching
operations, unless otherwise approved by the regulatory authority. In
addition, all fill construction is to occur during this phase of the
operation.
We must note that, except for pre-stripping or benching operations,
the existing requirements at subdivision 14.15.b.6.B. do not impose a
limit on the total amount of permitted acreage that can be disturbed at
any given time. However, those same provisions do require that
backfilling and grading of the area disturbed by the dragline must be
completed within 180 days following coal removal and with no more than
four spoil ridges behind the pit being worked.
We also note that under subdivision 14.15.a.2, as discussed above,
the mining and reclamation operations plan for these kinds of
operations will contain detailed, site-specific information concerning
the timing, sequence, and areal extent of both the proposed pre-
stripping and dragline operations and reflect how the mining and
reclamation operations will be coordinated throughout the life of the
mining operation. This detailed information, together with the progress
maps, should provide the regulatory authority sufficient information to
assess the proposed ratio of disturbed versus reclaimed area, and to
ensure
[[Page 71835]]
compliance with the contemporaneous reclamation rules at CSR 38-2-
14.15.
The Federal time and distance standards for backfilling and grading
at 30 CFR 816.101 have been indefinitely suspended (57 FR 33875, July
31, 1992). However, the remaining Federal regulations at 30 CFR 816/
817.100 require that reclamation efforts, including backfilling and
grading, occur as contemporaneously as practicable with the mining
operations. For the reasons discussed above, we find that the proposed
provision is not inconsistent with the Federal regulations at 30 CFR
816/817.100 and can be approved.
6. CSR 38-2-14.15.c
This provision is amended by adding the words ``and meets Phase I
standards'' at the end of the first sentence. As amended, this
provision provides as follows:
14.15.c. Reclaimed Area. For purposes of this subsection,
reclaimed acreage shall be that portion of the permit area which has
at a minimum been fully regraded and stabilized in accordance with
the reclamation plan and meets Phase I standards. The following
shall not be included in the calculation of disturbed area:
The addition of the phrase ``and meets Phase I standards'' appears
to clarify the meaning of reclaimed area as previously approved at CSR
38-2-14.15.c. In addition to being fully regraded and stabilized in
accordance with the reclamation plan, the proposed revision will
require that reclaimed acreage must also meet the Phase I bond release
requirements at CSR 38-2-12.2.c.1. We find that the amendment to this
provision does not render the West Virginia rule less effective than
the Federal regulations concerning contemporaneous reclamation at 30
CFR 816.100 and can be approved.
7. CSR 38-2-14.15.c.1
This provision concerns the identification of those areas that
shall not be included in the calculation of disturbed area. This
provision is amended by adding a new proviso at the end of the existing
provision that limits, with exceptions, the total acreage of semi-
permanent ancillary facilities that shall not be included in the
calculation of disturbed area to a total of 10 percent of the permitted
acreage. As amended, CSR 38-2-14.15.c.1. provides as follows:
14.15.c.1. Semi-permanent ancillary facilities (haulroads,
drainage control systems, parking areas, maintenance, storage and
supply areas, etc.), and areas cleared but not grubbed, provided,
that such areas have appropriate drainage control systems in place;
Provided, that with the exception of permanent haulroads, drainage
control systems and material handling facilities (including but are
not limited to such facilities as preparation plants, fixed coal
stockpiles/transfer areas and commercial forestry topsoil areas) the
total acreage of all other semi-permanent ancillary facilities
cannot exceed ten percent of the total permit acreage.
The existing rules exempt all semi-permanent ancillary facilities
and cleared areas from the contemporaneous reclamation requirements,
regardless of size. The revised language limits the size of certain
semi-permanent ancillary facilities to no more than 10 percent of the
total permitted acreage. Otherwise, the area will have to be considered
disturbed area for contemporaneous reclamation purposes. We find that
the provision, as amended, is reasonable in that it limits the
exemption from the State's contemporaneous reclamation requirements for
certain semi-permanent ancillary facilities to not more than 10 percent
of the permitted acreage. Because the proposed revision is more
restrictive and not inconsistent with the Federal regulations
concerning contemporaneous reclamation at 30 CFR 816/817.100, it can be
approved.
8. CSR 38-2-14.15.c.3
This provision concerns the identification of cleared and grubbed
acreage that shall not be included in the calculation of disturbed
area. This provision is amended by adding the following language to the
end of the existing provision:
the Secretary may consider larger acreage for clearing
operations where it can be demonstrated that it is necessary to
comply with applicable National Environmental Policy Act
requirements.
As amended, this provision provides as follows:
14.15.c.3. Areas containing 30 aggregate acres or less which
have been cleared and grubbed and have the appropriate drainage
control (temporary or permanent) installed and certified, and which
will become a part of the operational area within six months or
less. Failure to incorporate these areas into the operational area
within six months may result in the loss of this exemption; the
Secretary may consider larger acreage for clearing operations where
it can be demonstrated that it is necessary to comply with
applicable National Environmental Policy Act requirements.
The purpose of the amendment is to enable the Secretary of WVDEP to
allow coal operators to clear (i.e., cut only, not grub) trees on areas
larger than 30 acres. The State is trying to protect the Indiana bat
and other endangered plant and animal species by minimizing habitat
loss at certain times of the year, notably mating season. By allowing
larger areas to be timbered and still have the reclamation be
considered contemporaneous, the WVDEP hopes to discourage clear cutting
operations prior to getting permits, when the practices are not subject
to SMCRA's environmental protections and may affect wildlife at
critical times. Once permits are issued, operators cannot timber at
certain times of the year when certain endangered or threatened species
are breeding.
Under SMCRA, the issuance of a SMCRA permit by the State is not
considered an action under NEPA. Appendix 8 of the U.S. Department of
the Interior Manual provides that ``[p]ermit applications under
approved State programs are excluded from NEPA compliance.'' January
19, 1981; 46 FR 2316. In addition, individual States have no authority
to require compliance with NEPA and, therefore, the State's proposed
reference to NEPA has no effect on the West Virginia program. We find
that because the proposed reference to NEPA is a nullity and has no
practicable effect on the West Virginia program, we are not rendering a
decision on the proposed language. Because we are not rendering a
decision on the proposed language, this requirement is not part of the
approved West Virginia program. To avoid confusion in the future, we
recommend that this language be removed from these rules.
9. CSR 38-2-14.15.c.4
This provision has been deleted in its entirety in the revised rule
authorized with the passage of Senate Bill 2002. Prior to being
deleted, this provision provided that the following area would not be
included in the calculation of disturbed area:
14.15.c.4. Areas that have been cleared and grubbed which exceed
the thirty aggregate acres and/or those which will not be included
in the operational area within six months may be excluded if the
appropriate temporary or permanent drainage control structures are
installed and certified and have temporary vegetative cover
established; and
We find that the deletion of this provision, which provides an
exemption for areas that have been cleared and grubbed from the
contemporaneous reclamation requirements, does not render the West
Virginia program less effective than the Federal regulations at 30 CFR
816/817.100 concerning contemporaneous reclamation and can be approved.
[[Page 71836]]
10. CSR 38-2-14.15.d
CSR 38-2-14.15.d., concerning Applicability, has been deleted,
relocated to subdivision 14.15.e., and revised (see below). New
subdivision 14.15.d. concerns excess spoil disposal fills, and provides
as follows:
14.15.d. Excess Spoil Disposal Fills. All fills must be
constructed contemporaneously and contiguously with that segment of
the operations that contains the material that is designated to be
placed in the fill. In addition to all other standards in effect,
the following shall apply to excess spoil disposal fills.
14.15.d.1. All fills must be planned for continuous material
placement until designed capacity is reached and cannot have a
period of inactivity that exceeds 180 days unless otherwise approved
by the secretary on a permit specific basis to accommodate AOC+,
post-mining land use or special material handling situations.
14.15.d.2. The areas where contour mining is proposed within the
confines of the fill are not eligible for the exemption contained in
14.15.c.2.
14.15.d.3. Operations that propose fills that are designed to
use single lift top-down construction shall bond the proposed fill
areas based upon the maximum amount per acre specified in WV Code
22-3-12(c)(1).
At subdivision 14.15.d, the proposed provision adds a requirement
that all excess spoil disposal fills must be constructed
contemporaneously and contiguously with that portion of the operation
that contains the material that is to be placed in the fill. This
provision is to ensure that the construction of excess spoil disposal
fills will be done simultaneously with the mining operation. We note
that under proposed subdivision 14.15.a.2, discussed above, the mining
and reclamation operations plans submitted with each permit application
must include a detailed site-specific description of the timing,
sequence, and areal extent of each progressive phase of proposed mining
and reclamation operations. This information and these requirements
should enable the regulatory authority to ensure more timely
construction and reclamation of excess spoil fills.
Subsection 14.15.d.1 provides that both the conventional and end-
dump fills must be planned for continuous material placement until
design capacity is reached and cannot have a period of inactivity
exceeding 180 days. We interpret the latter provision to mean that
inactivity during fill construction cannot exceed 180 continuous days.
This subdivision also provides for permit-specific waiver of the 180-
day criterion, on a permit specific basis, to accommodate AOC+,
postmining land use, or special material handling situations. Prior to
this proposed provision, there was no time limit on the construction
and reclamation of fills. While the proposal does allow for a waiver to
the 180-day criterion, it may only be granted on a permit-specific
basis.
Subsection 14.15.d.2 provides that the areas where contour mining
is proposed within the confines of the fill are not eligible for the
exemption contained in subsection 14.15.c.2. Subsection 14.15.c.2
provides that fills that are constructed using conventional methods
(constructed in lifts from the toe up) shall not be included in the
calculation of disturbed area. Therefore, under subsection 14.15.d.2,
areas where contour mining is proposed within the confines of the fill
are not eligible to be excluded from the calculation of disturbed area,
and are not exempt from the State's contemporaneous reclamation
requirements.
Subsection 14.15.d.3 provides that bonds for areas with single
lift, top down constructed fills are to be set at the maximum amount
per acre ($5 thousand per acre). These fills are often referred to as
end-dump fills. Increasing the bond on such fills to the maximum amount
will protect the State's special reclamation fund should an operator
forfeit the bond and fail to complete reclamation of end-dump fill
areas. We note that there is a typographical error in this provision.
The site-specific bond amount per acre is specified at W. Va. Code 22-
3-12(b)(1), not 12(c)(1) as specified in this provision.
The Federal time and distance standards for backfilling and grading
at 30 CFR 816.101 have been indefinitely suspended (57 FR 33875, July
31, 1992). The remaining Federal regulations at 30 CFR 816/817.100
require that reclamation efforts, including backfilling and grading,
occur as contemporaneously as practicable with the mining operations.
We find that because the proposed excess spoil fill provisions at CSR
38-2-14.15.d., d.1, d.2 and d.3 enhance the State's contemporaneous
reclamation standards and are not inconsistent with the Federal
regulations at 30 CFR 816/817.100, they can be approved.
11. CSR 38-2-14.15.e
This subdivision, which concerns applicability, has been relocated
from subdivision 14.15.d., and has been revised. As amended,
subdivision 14.15.e. provides as follows:
14.15.e. Applicability. Permit applications pending approval on
the first day of January, two thousand three, shall within 120 days
of permit approval have a mining and reclamation plan which is
consistent with the criteria set forth in this subdivision. Permit
applications which are submitted after the first day of January, two
thousand three shall not be issued a permit without a mining and
reclamation plan which is consistent with the criteria set forth in
this subdivision.
14.15.e.1. After the first day of January, two thousand three,
the mining and reclamation plan for all active mining operations
must be consistent with the applicable time criteria set forth in
this paragraph. Where permit revisions are necessary to satisfy this
requirement, the revisions shall be prepared and submitted to the
Secretary for approval within 180 days. Full compliance with the
revised mining and reclamation plan shall be accomplished within
twelve (12) months from the date of the Secretary's approval.
14.15.e.2. After the first day of January, two thousand three,
the mining and reclamation plan for mining operations which have
approved inactive status or when permits have been issued but the
operation has not started must be consistent with the applicable
time criteria of this paragraph. Where permit revisions are
necessary to satisfy this requirement, the revisions shall be
prepared and submitted to the Secretary for approval within 180
days. Full compliance with the revised mining and reclamation plan
shall be accomplished within twelve (12) months from the date of the
Secretary's approval.
14.15.e.3. The Secretary may consider contemporaneous
reclamation plans on multiple permitted areas with contiguous areas
of disturbance to ensure that contemporaneous reclamation is
practiced on a total operational basis. In order to establish a
method of orderly transition between operations, plans submitted on
multiple permitted areas cannot add allowable disturbed areas in
such a manner as to result in increased disturbed areas on a single
operation unless a variance is obtained pursuant to subdivision
14.15.g.
The Federal time and distance standards for backfilling and grading
at 30 CFR 816.101 have been indefinitely suspended (57 FR 33875, July
31, 1992). However, these provisions provide reasonable time limits for
compliance with these revised contemporaneous reclamation regulations.
Therefore, we find that the provisions at CSR 38-2-14.15.e. are not
inconsistent with and do not render the West Virginia program less
effective than the Federal regulations at 30 CFR 700.11 can be
approved.
12. CSR 38-2-14.15.g
This provision, concerning variance, was formerly subdivision
14.15.f. and has been recodified and amended by two deletions, and by
adding a requirement to comply with the requirements of subsection 3.32
concerning permit issuance findings, to provide as follows:
14.15.g. Variance--Permit Applications. The Secretary may grant
approval of a mining and reclamation plan for a permit which seeks a
variance to one or more of the
[[Page 71837]]
standards set forth in this subsection, if on the basis of site
specific conditions and sound scientific and/or engineering data,
the applicant can demonstrate that compliance with one or more of
these standards is not technologically or economically feasible. The
Secretary shall make written findings in accordance with the
applicable provisions of section 3.32 of this rule when granting or
denying a request for variance under this section.
We find that the recodification and amendment of this provision
does not render the provision less effective than the Federal
regulations at 30 CFR 816/817.100 and can be approved, except as
follows.
The State deleted from preexisting subdivision 14.15.f. a provision
that required that the amount of bond for an operation that requests a
variance to one or more of the standards set forth in subsection 14.15
concerning contemporaneous reclamation shall be based on the maximum
amount per acre specified in W. Va. Code 22-3-12(c)(1). We initially
announced the approval of the State contemporaneous reclamation
requirements in the Federal Register on February 21, 1996 (61 FR 6525).
Since then, the State statute has been amended and the site-specific
bonding amounts are now set forth at W. Va. Code 22-3-12(b)(1), not
12(c)(1).
On August 18, 2000, OSM approved in the Federal Register the
revision to subdivision 14.15.f. which requires the maximum amount of
bond for operations that request variances to the State's
contemporaneous reclamation standards (65 FR 50409, 50424). In
approving the requirement, we noted that the proposed change is to
ensure that the bond amount will be sufficient to complete the
reclamation plan of a revoked permit with a contemporaneous reclamation
variance in the event of bond forfeiture. The effect of eliminating the
requirement for the maximum bond amount on operations requesting
variances will increase the risk of liability on the State's
alternative bonding system (ABS) in the event of bond forfeiture. The
State's ABS is funded by a special reclamation tax on each ton of coal
mined, plus a site-specific bond that can range from $1,000 to $5,000
per acre.
On May 29, 2002, OSM concluded that recently approved changes to
the West Virginia program (66 FR 67446; December 28, 2001) had
satisfied a required program amendment concerning the State's ABS (67
FR 37610). The required amendment, codified at 30 CFR 948.16(lll),
required that the West Virginia program be amended to eliminate the
deficit in the State's ABS and to ensure that sufficient money will be
available to complete reclamation, including the treatment of polluted
water, at all existing and future bond forfeiture sites. The State's
amendments that we approved on December 28, 2001, included an increase
in the special reclamation tax from 3 cents per ton of clean coal mined
to 7 cents per ton, plus an additional 7 cents per ton would be levied
for up to 39 months. In addition, the State created the Special
Reclamation Fund Advisory Council (Advisory Council) to monitor the
special reclamation fund and bond forfeiture obligations to ensure
``the effective, efficient and financially stable operation of the
special reclamation fund.'' One of the main tasks of the Advisory
Council is the elimination of the ABS deficit. It must also ensure that
the special reclamation fund remains solvent once the deficit is
eliminated. It appears to us that the proposed deletion of the
requirement to require maximum bond per acre for operations seeking a
variance from one or more of the contemporaneous reclamation
requirements at subsection 14.15 inappropriately increases the risk of
liability to the ABS in the event of bond forfeiture.
As we discussed in the May 29, 2002, Federal Register notice, with
respect to future reclamation obligations, the Advisory Council has an
obligation under State Law to monitor the special reclamation fund,
address funding-related issues, and recommend measures to ensure the
long-term solvency of the special reclamation fund. We find that the
proposed deletion is an example of an action that could adversely
affect the ABS and that should be reviewed by the Advisory Council to
determine its potential effect on the solvency of the ABS. Therefore,
we are deferring decision on the proposed deletion of the requirement
to impose the maximum bond amount of $5,000 per acre on operations
seeking a variance from one or more of the provisions of subsection
14.15. We will reconsider this proposed deletion after such time as the
Advisory Council has assessed the potential impact of the proposed
deletion and rendered its opinion to the State Legislature and
Governor.
Paragraph 14.15.g lacks the transition sentence contained in former
paragraph 14.15.f, which stated that ``[t]he variance request shall be
in writing and must contain the following elements.'' Without such a
transition sentence, paragraphs 14.15.g.1 through g.5. do not flow
logically from the introductory paragraph and do not require that the
variance request be in writing. We assume that deletion of the last
sentence of former paragraph 14.15.f. was inadvertent. We recommend
that the State add the quoted sentence at the end of CSR 38-2-14.15.g.
or otherwise amend subsection 14.15.g to improve its clarity and to
ensure that the variance request be in writing. The addition of the
deleted language will also ensure consistency with subdivision 14.15.h.
13. CSR 38-2-14.15.g.2
This provision identifies part of the required elements for a
variance requested under subdivision 14.15.g. This provision was
amended by adding the phrase ``including a discussion and feasibility
analysis of alternatives that were considered'' at the end of this
provision. As amended, subdivision 14.15.g.2 provides as follows:
14.15.g.2. A statement with supporting documentation and
scientific and/or engineering data which describes how site specific
conditions make compliance with the standard(s) technologically or
economically infeasible, including a discussion and feasibility
analysis of alternatives that were considered.
The additional requirement of a discussion and feasibility analysis
of alternatives that were considered by the operator in evaluating the
contemporaneous reclamation standards should provide the regulatory
authority with additional information necessary to help determine
whether a variance is justified. We find that the provision does not
render the West Virginia program less effective than the Federal
regulations at 30 CFR 816/817.100 and can be approved.
14. CSR 38-2-14.15.g.5
This provision was added by House Bill 4163 and then deleted in its
entirety in the revised rule authorized with the passage of Senate Bill
2002. Prior to being deleted, the provision provided the following:
14.15.g.5. A detailed economic analysis including a discussion
and feasibility analysis of possible alternatives that were
considered must be submitted for variance requests that use
economics as the basis for the request.
The State has provided no justification for the deletion of this
provision. Nevertheless, because the deleted provision was never
approved by OSM, it was never part of the approved West Virginia
program and our approval of its deletion is not necessary.
15. CSR 38-2-14.15.i
This provision is new and provides as follows:
14.15.i. Notwithstanding any provision of this rule to the
contrary, revision of the
[[Page 71838]]
mining and reclamation plan contained in a permit is required prior
to any change in mining methods which would substantially affect the
standards contained in this section.
In essence, the provision would require that, prior to an operator
changing the method of mining that would substantially affect the
contemporaneous reclamation standards, the mining and reclamation plan
would have to be revised and approved by the regulatory authority. We
find that this provision, which requires a permit revision for a change
in mining methods that would substantially affect the State's
contemporaneous reclamation standards is consistent with the Federal
requirements concerning permit revisions at SMCRA section 511(a)(2) and
at 30 CFR 774.13, and can be approved. We are approving this provision
to the extent that any significant changes to the mining and
reclamation plan would be done as a significant revision to the permit
and subject to the public notice requirements as required by CSR 38-2-
3.28.b.
IV. Summary and Disposition of Comments
Public Comments
No public comments were received in response to our request for
comments from the public on the proposed amendment (see Section II of
this preamble).
Federal Agency Comments.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on June
14, 2002, and August 7, 2002, we requested comments on these amendments
from various Federal agencies with an actual or potential interest in
the West Virginia program (Administrative Record Numbers WV-1314 and
WV-1321, respectively). By letters dated July 11, 2002, and September
20, 2002, the U.S. Department of Labor, Mine Safety and Health
Administration (MSHA) responded (Administrative Record Numbers WV-1320
and WV-1331). In addition, the U.S. Department of the Interior, Fish
and Wildlife Service (USFWS) responded to our request for comments on
September 10, 2002 (Administrative Record Number WV-1329).
MSHA stated that it finds no changes or issues that impact upon
coal miner's health and safety and that there is no conflict with MSHA
regulations.
USFWS provided comments pursuant to the Fish and Wildlife
Coordination Act and the Endangered Species Act. USFWS stated that the
proposed exemptions at subsection CSR 38-2-14.15.c appear to be
contrary to the Federal regulations at 30 CFR 701.5 concerning the
definition of ``disturbed area.'' In response, the proposed exemption
at subsection CSR 38-2-14.15.c that certain areas will not be included
in the calculation of disturbed area applies only to the
contemporaneous reclamation standards at CSR 38-2-14.15, and not to all
of the State's surface mining reclamation requirements. Furthermore,
the State has a definition of disturbed area at W. Va. Code section 22-
3-3(j) that has been determined to be no less effective than the
Federal definition. For these reasons, we disagree that the proposed
exemptions at subsection CSR 38-2-14.15.c appear to be contrary to the
Federal regulations at 30 CFR 701.5 concerning the definition of
``disturbed area.''
USFWS stated that the meaning of language at subdivision 14.15.c.3
which states that ``[t]he Secretary may consider larger acreage for
clearing operations where it can be demonstrated that it is necessary
to comply with applicable National Environmental Policy Act
requirements' is unclear. This implies, USFWS stated, that NEPA
documentation would have to be prepared which is required prior to
Federal action. USFWS stated that the sentence should be stricken.
USFWS stated that using impacts to fish and wildlife resources as a
basis for gauging disturbance, these proposed exemptions from inclusion
as disturbed areas are particularly untenable. USFWS recommended that
the proposed exemption not be approved.
In response, and for the reasons discussed above in Finding 8, we
determined that the State's proposed reference to NEPA has no
practicable effect on the West Virginia program. Therefore, we did not
render a decision on the proposed language. However, the State will not
be allowed to implement this provision as part of its approved program.
USFWS commented on language at CSR 38-2-14.15.g that allows the
Secretary of the WVDEP to grant a variance of one or more of the
standards set forth at CSR 38-2-14.15. Specifically, USFWS stated that
removing the requirement to provide a detailed economic analysis
removes the applicant's responsibility to justify a variance based on
economic considerations. USFWS stated that under this amendment,
conceivably, an applicant could be exempt from all contemporaneous
reclamation requirements for any type of mining by merely claiming
economic infeasibility. USFWS recommended that the provision requiring
economic analysis be retained in the regulations.
In response, the USFWS comment relates to a portion of the proposed
rules at CSR 38-2-14.15.g.5, that was never approved by OSM. As
discussed above in Finding 14, because the proposed revision has been
deleted by the State, our approval of the deletion is not necessary.
Environmental Protection Agency (EPA) Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to obtain
written concurrence from EPA for those provisions of the program
amendment that relate to air or water quality standards issued under
the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the
Clean Air Act (42 U.S.C. 7401 et seq.). On June 14, 2002, we requested
concurrence and comments from EPA on House Bill 4163 (Administrative
Record Numbers WV-1313). On August 7, 2002, we requested comments from
EPA on Senate Bill 2002 (Administrative Record Number WV-1321).
EPA responded by letter dated October 28, 2002 (Administrative
Record Number WV-1340), concurred on the proposed amendments and
provided the following comments. EPA stated that CSR 38-2-14.15.d
includes a requirement that fills be constructed adjacent to the
excavated area where the spoil material originates. EPA stated that it
is concerned that this requirement could result in unnecessary
construction of fills in waters of the United States where the
excavated areas are adjacent to such waters. EPA recommended that fill
optimization and minimization efforts be provided to avoid construction
of fills in waters of the United States where feasible. In response, we
note that this provision is only intended to encourage contemporaneous
reclamation of fills. All applicable requirements of the Clean Water
Act will continue to apply.
EPA also noted that mining-related discharges into waters of the
United States, including excess spoil, are subject to permit
requirements under the Clean Water Act. Before conducting such
activities, EPA stated, the Corps of Engineers and the West Virginia
Department of Environmental protection should be contacted regarding
necessary permits. In response, we note that the proposed amendments do
not supersede any Clean Water Act requirements. All the existing
requirements of the West Virginia program continue to apply.
[[Page 71839]]
V. OSM's Decision
Based on the above findings, we are approving the amendments to CSR
38-2-14.15 as submitted to us on April 9, 2002 and June 19, 2002,
except as indicated below.
At CSR 38-2-14.15.c.3, we are not rendering a finding on the
sentence, ``the Secretary may consider larger acreage for clearing
operations where it can be demonstrated that it is necessary to comply
with applicable National Environmental Policy Act requirements.''
At CSR 38-2-14.15.g., concerning variance-permit applications, we
are deferring our decision on the proposed deletion of the following
sentence, ``Furthermore, the amount of bond for the operation shall be
based on the maximum amount per acre specified in WV Code section 22-3-
12(c)(1).''
We are not rendering a decision concerning CSR 38-2-14.15.g.5
because the deleted provision was never approved by OSM, and therefore
never a part of the approved West Virginia program, and our approval of
its deletion is not necessary.
CSR 38-2-14.15.i., is approved to the extent that any significant
changes to the mining and reclamation plan would be done as a
significant permit revision and subject to the public notice
requirements as required by CSR 38-2-3.28.b.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 948, which codify decisions concerning the West Virginia
program. Our regulations at 30 CFR 732.17(h)(12) specify that all
decisions approving or disapproving amendments will be published in the
Federal Register and that they will be effective upon publication,
unless the notice specifies a different date. We are making this final
rule effective immediately to expedite the State program amendment
process and to assist the State in making its program conform with the
Federal standards as required by the Act.
VI. Procedural Determinations
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 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget under Executive Order 12866.
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 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 because
each 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
the Federal regulations at 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.
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 13211--Regulations That Significantly Affect The
Supply, Distribution, Or Use Of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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. 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 regulations.
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; and (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 analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the analysis performed
under various
[[Page 71840]]
laws and executive orders for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 1, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 948 is amended
as set forth below:
PART 948--WEST VIRGINIA
1. The authority citation for part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Date of
Original amendment submission publication of Citation/description
dates final rule
------------------------------------------------------------------------
* * * * * * *
April 9, 2002................. December 3, 2002. CSR 38-2-14.15.a.1,
June 19, 2002................. a.2; b.5; b.6.A,
b.6.B.1; c, c.1,
c.4; d, d.1, d.2,
d.3; e, e.1, e.2,
e.3; g (partial
approval), g.2; i
(qualified
approval).
------------------------------------------------------------------------
[FR Doc. 02-30609 Filed 12-2-02; 8:45 am]
BILLING CODE 4310-05-P