[Federal Register Volume 69, Number 92 (Wednesday, May 12, 2004)]
[Proposed Rules]
[Pages 26340-26348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10747]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-102-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 on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
West Virginia proposes revisions to the Code of State Regulations (CSR) 
as authorized by Committee Substitute for House Bill 4193. The State is 
revising its program to be consistent with certain corresponding 
Federal requirements, and to include other amendments at its own 
initiative. The amendments include, among other things, new

[[Page 26341]]

provisions to ensure reclamation and husbandry techniques that are 
conducive to the development of productive forestlands and wildlife 
habitat after mining.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on June 11, 2004. If requested, we will hold a public 
hearing on the amendment on June 7, 2004. We will accept requests to 
speak at a hearing until 4 p.m. (local time), on May 27, 2004.

ADDRESSES: You should mail, e-mail, or hand-deliver 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, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the 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) 759-0510.
    In addition, you may review a copy of the 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. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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. Description of the Proposed Amendment

    By letter dated March 25, 2004 (Administrative Record Number WV-
1389), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment consists of Committee Substitute for House Bill 
4193, which authorizes amendments to the West Virginia Surface Mining 
Reclamation Rules at CSR 38-2. Committee Substitute for House Bill 4193 
passed the Legislature on March 12, 2004, and was signed by the 
Governor on April 5, 2004. West Virginia Code (W.Va. Code or WV Code) 
64-3-1(g) specifically authorizes WVDEP to promulgate the revisions as 
legislative rules.
    In its letter, the WVDEP stated that the rules at CSR 38-2 were 
amended to be consistent with the counterpart Federal regulations. In 
addition, the amendment adds new provisions concerning ``Forestland'' 
and ``Wildlife'' to ensure reclamation techniques and husbandry that 
are conducive to productive forestlands and wildlife habitats are 
followed. The WVDEP also included in its submittal, a memorandum from 
the West Virginia State Forester in which the State Forester endorsed 
the proposed rules and also provided comments on them.
    The WVDEP also submitted Committee Substitute for Senate Bill 616, 
which was adopted by the Legislature on March 21, 2004. The Bill 
increased the membership of the Environmental Protection Advisory 
Council and established a new Quality Assurance Compliance Advisory 
Committee. Because this Bill was vetoed by the Governor on April 6, 
2004, it is not being considered in this rulemaking.
    The amendment submitted by WVDEP includes amendments to CSR 38-2-24 
concerning the exemption for coal extraction incidental to the removal 
of other minerals. However, none of these provisions at CSR 38-2-24, 
which the State is proposing to amend, have been previously submitted 
to OSM for approval. Therefore, we are including CSR 38-2-24 
(Administrative Record Number WV-1390) in its entirety, and we are 
requesting public comment on all of Section 24 (Item 10, below).
    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES.
    Specifically, West Virginia proposes the following amendments.

1. CSR 38-2-3.12.a.1. Subsidence Control Plan

    This provision is amended by changing a term related to the scale 
of the topographic map that must be submitted with the subsidence 
control plan. In the first sentence, the word ``less'' is deleted and 
replaced by the word ``more.'' In the last sentence, the word ``less'' 
is deleted and replaced by the word ``larger.''

2. CSR 38-2-7.6. Forest Land

    This subsection is new and provides as follows.

7.6 Forest Land

    7.6.a. The Secretary may authorize forest land as a postmining 
land use only if the following conditions have been met: Provided, 
however; this subsection only applies to AOC mining operations that 
propose to utilize auger, area, mountain top and contour methods of 
mining. Proposed underground mining, coal preparation facilities, 
coal refuse disposal, haulroads and their related incidental 
facilities are not subject to the provisions of this subsection but 
must comply with all other applicable sections of this rule.
    7.6.b. Planting Plan
    7.6.b.1. A. West Virginia registered professional forester shall 
develop a planting plan for the permitted area that meets the 
requirements of the West Virginia Surface Coal Mining and 
Reclamation Act. This plan shall be made a part of the mining permit 
application. The plans shall be in sufficient detail to demonstrate 
that the requirements of forestland use can be met. The minimum 
contents of the plan shall be as follows:
    7.6.b.1.A.1. A premining native soils map and brief description 
of each soil mapping unit to include at a minimum: Areal extent 
expressed in acres, total depth and volume to bedrock, soil 
horizons, including the O, A, E, B, and C horizon depths, soil 
texture, structure, color, reaction, bedrock type, and

[[Page 26342]]

a site index for northern red oak. A site index for white oak for 
each soil mapping unit should also be provided if available. A 
weighted, average site index for northern red oak, based on acreage 
per soil mapping unit, shall be provided for the permitted area.
    7.6.b.1.A.2. A surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and tree 
planting.
    7.6.b.1.A.3. Liming and fertilizer plans.
    7.6.b.1.A.4. Mulching type, rates and procedures.
    7.6.b.1.A.5. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.6.b.1.A.6. A site specific tree planting prescription to 
establish forestland to include species, stems per acre and planting 
mixes.
    7.6.b.1.B. Review of the Planting plan.
    7.[6.]b.1.B.1. Before approving a forestland postmining land 
use, the Secretary shall assure that the planting plan is reviewed 
and approved by a forester employed [by] the Department of 
Environmental Protection. Before approving the planting plan, the 
Secretary shall assure that the reviewing forester has made site-
specific written findings adequately addressing each of the elements 
of the plans. The reviewing forester shall make these findings 
within 45 days of receipt of the plans.
    7.6.b.1.B.2. If after reviewing the planting plan, the reviewing 
forester finds that the plan complies with the requirements of this 
section, they shall prepare written findings stating the basis of 
approval. A copy of the findings shall be sent to Secretary and 
shall be made part of the Facts and Findings section of the permit 
application file.
    The Secretary shall ensure that the plans comply with the 
requirements of this rule and other provisions of the approved State 
surface mining program.
    7.6.b.1.B.3. If the reviewing forester finds the plans to be 
insufficient, the forester shall either:
    7.6.b.1.B.3.(a). Contact the preparing forester and the 
permittee and provide the permittee with an opportunity to make the 
changes necessary to bring the planting plan into compliance; or,
    7.6.b.1.B.3.(b). Notify the Secretary that the planting plan 
does not meet the requirements of this rule. The Secretary may not 
approve the surface mining permit until finding that the planting 
plans satisfy all of the requirements of this rule.
    7.6.c. Soil placement, Substitute material and Grading
    7.6.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.6.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1, the substitute material consists of at 
least 75% sandstone, has a composite paste pH between 5.0 and 7.5, 
has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. The Secretary may allow substitute materials 
with less than 75% sandstone provided the applicant demonstrates the 
overburden in the mine area does not contain an adequate volume of 
sandstone to meet the depth requirements of 7.6.c.1, or the quality 
of sandstone in the overburden does not meet the requirements of 
this rule. This information shall be made a part of the permit 
application.
    7.6.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.6.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the 
receiving stream.
    7.6.d. Liming and Fertilizing
    7.6.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.6.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. Between 200 and 300 lbs./acre of 10-
20-10 fertilizer shall be applied with the ground cover seeding. 
Other fertilizer materials and rates may be used only if the 
Secretary finds that the substitutions are appropriate based on soil 
testing performed by State certified laboratories.
    7.6.e. Revegetation
    7.6.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-invasive cool and warm species grasses and other 
herbaceous vine or shrub species including legume species and 
shrubs. All species shall be slow growing and compatible with tree 
establishment and growth. The ground vegetation shall be capable of 
stabilizing the soil from excessive erosion, but the species should 
be slow growing and non-invasive to allow the establishment and 
growth of native herbaceous plants and trees. Seeding rates and 
composition must be in the planting plan. The following ground cover 
mix and seeding rates (lb./acre) are strongly recommended: winter 
wheat or oats (10 lbs./acre), fall seeding, foxtail millet (5 lbs./
acre), summer seeding, weeping lovegrass (3 lbs./acre or redtop at 5 
lbs./acre), kobe lespedeza (5 lbs./acre), birdsfoot trefoil 
(10lbs.,/acre), perennial rye grass (10 lbs.,/acre) and white clover 
(3 lbs./acres). Kentucky 31 fescue, serecia lespedeza, all vetches, 
clovers (except ladino and white clover) and other aggressive or 
invasive species shall not be used. Alternate seeding rates and 
composition will be considered on a case by case basis by the 
Secretary and may be approved if site specific conditions 
necessitate a deviation from the above. All mixes shall be 
compatible with the plant and animal species of the region and 
forestland use.
    7.6.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan prepared 
by a registered professional forester. The stocking density of woody 
plants shall be at least 500 plants per acre.
    7.6.e.2.A. The stocking density for trees shall be at least 350 
plants per acre. There shall be a minimum of five species of trees, 
to include at least three higher value hardwood species (white oak, 
northern red oak, black oak, chestnut oak, white ash, sugar maple, 
black cherry and yellow poplar) and at least two lower value 
hardwoods or softwoods species (all hickories, red maple, basswood, 
cucumber magnolia, sycamore, white pine, Virginia pine and pitch x 
loblolly hybrid pine). There shall be at least 210 high value 
hardwoods plants per acre and 140 lower value hardwood or softwood 
plants per acre (70 plants per acre for each species selected).
    7.6.e.2.B. The stocking density of shrubs and other woody plants 
shall not exceed 150 plants per acre. There shall be a minimum of 
three species of shrubs or other woody plants (black locust, bristly 
locust, dogwood, Eastern redbud, black alder, bigtooth aspen and 
bicolor lespedeza, (50 plants per acre for each species selected).
    7.6.f. Standards for Success
    7.6.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.6.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period; 
and
    7.6.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

3. CSR 38-2-7.7. Wildlife

    This subsection is new and provides as follows.

7.7. Wildlife

    7.7.a. The Secretary may authorize wildlife as a postmining land 
use only if the following conditions have been met. This subsection 
applies to all AOC mining operations that propose a postmining land 
use of wildlife. The Secretary shall ensure that the plans comply 
with the requirements of this rule and other provisions of the 
approved State surface mining program.

[[Page 26343]]

    7.7.b. Planting Plan
    7.7.b.1. A wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan for the 
permitted area that meets the requirements of the West Virginia 
Surface Coal Mining and Reclamation Act. This plan shall be made a 
part of the mining permit application. The plans shall be in 
sufficient detail to demonstrate that the requirements of wildlife 
use can be met. The minimum contents of the plan shall be as 
follows:
    7.7.b.1.A.1. Surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and 
planting.
    7.7.b.1.A.2. Liming and fertilizer plans.
    7.7.b.1.A.3. Mulching type, rates and procedures.
    7.7.b.1.A.4. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.7.b.1.A.5. A site specific tree/shrub planting prescription to 
establish wildlife to include species, stems per acre and planting 
mixes.
    7.7.c. Soil placement, Substitute material and Grading
    7.7.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.7.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1, the substitute material consists of at 
least 75% sandstone, has a composite paste pH between 5.0 and 7.5, 
has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. The Secretary may allow substitute materials 
with less than 75% sandstone provided the applicant demonstrates the 
overburden in the mine area does not contain an adequate volume of 
sandstone to meet the depth requirements of 7.6.c.1, or the quality 
of sandstone in the overburden does not meet the requirements of 
this rule. Such information shall be made a part of the permit 
application.
    7.7.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.7.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the 
receiving stream.
    7.7.d. Liming and Fertilizing
    7.7.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.7.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. A minimum of 300 lbs./acre of 10-20-10 
fertilizer shall be applied with the ground cover seeding. Other 
fertilizer materials and rates may be used only if the Secretary 
finds that the substitutions are appropriate based on soil testing 
performed by State certified laboratories.
    7.7.e. Revegetation
    7.7.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-invasive cool and warm species grasses and other 
herbaceous vine or shrub species including legume species and 
shrubs. All species shall be slow growing and compatible with tree 
establishment and growth. The ground vegetation shall be capable of 
stabilizing the soil from excessive erosion, but the species should 
be slow growing and non-invasive to allow the establishment and 
growth of native herbaceous plants and trees. Seeding rates and 
composition must be in the planting plan. The following ground cover 
mix and seeding rates (lb./acre) are strongly recommended: Winter 
wheat (20 lbs./acre), fall seeding, foxtail millet (10 lbs./acre), 
summer seeding, weeping lovegrass (3 lbs./acre or redtop at 5 lbs./
acre), kobe lespedeza (5 lbs./acre), birdsfoot trefoil (15 lbs./
acre), perennial rye grass (10 lbs./acre) and white clover (4 lbs./
acre). Kentucky 31 fescue, serecia lespedeza, all vetches, clovers 
(except ladino and white clover) and other aggressive or invasive 
species shall not be used. Alternate seeding rates and composition 
will be considered on a case by case basis by the Secretary and may 
be approved if site specific conditions necessitate a deviation from 
the above. Areas designated, as openings shall contain only grasses 
in accordance with the approved planting plan specified under 
subsection 7.7.b. of this rule.
    7.7.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan specified 
in under subsection 7.7.b. of this rule. The stocking density of 
woody plants shall be at least 500 plants per acre. Provided, that 
where a wildlife planting plan has been approved by a professional 
wildlife biologist and proposes a stocking rate of less than four 
hundred fifty (450) trees or shrubs per acre the standard for 
grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule. In all instances, there shall be a 
minimum of four species of tree or shrub, to include at least two 
hard mast producing species.
    7.7.f. Standards for Success
    7.7.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.7.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period; 
Provided, that where a wildlife planting plan has been approved by a 
professional wildlife biologist and proposes a stocking rate of less 
than four hundred fifty (450) trees or shrubs per acre the standard 
for grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule.
    7.7.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

4. CSR 38-2-9.3.g. Revegetation Standards for Areas To Be Developed for 
Forest Land and/or Wildlife Use

    This provision is amended by adding a sentence in the second 
paragraph that provides as follows:

A professional wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan that 
meets the requirements of the West Virginia Surface Coal Mining and 
Reclamation Act.

5. CSR 38-2-14.15.a.1. Contemporaneous Reclamation Standards; General

    The first sentence of this paragraph is amended by deleting the 
partial citation ``(c)(2),'' and adding the words ``and this rule'' 
immediately following the amended citation. As amended, the sentence 
provides 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 and this rule with all 
highwalls eliminated.

6. CSR 38-2-14.15.g. Variance--Permit Applications

    This paragraph is amended by adding a sentence, which provides as 
follows:

Furthermore, the amount of bond for the operation shall be based on 
the maximum amount per acre specified in WV Code 22-3-12(b)(1).

    In our December 3, 2002, Federal Register notice, we deferred 
rendering a decision on an earlier attempt by WVDEP to delete this 
language, given the possible adverse effect that its deletion could 
have on the State's alternative bonding system. The State's 
reinstatement of the deleted language is in response to that decision 
(67 FR 71837).

[[Page 26344]]

7. CSR 38-2-20.1.a.6. Inspection Frequencies Where Permits Have Been 
Revoked

    This provision is new and provides as follows.

    20.1.a.6. When a permit has been revoked, in lieu of the 
inspection frequency established in paragraphs 20.1.a.1 and 20.1.a.2 
of this subsection, the Secretary shall inspect each revoked site on 
a set frequency commensurate with the public health and safety and 
environmental consideration present at each specific site, but in no 
case shall the inspection frequency be set at less than one complete 
inspection per calendar year. In selecting an alternate inspection 
frequency, the Secretary shall first conduct a complete inspection 
of the site and provide public notice. The Secretary shall place a 
notice in the newspaper with the broadest circulation in the 
locality of the revoked mine site providing the public with a 30-day 
period in which to submit written comments. The public notice shall 
contain the permittee's name, the permit number, the precise 
location of the land affected, the inspection frequency proposed, 
the general reasons for reducing the inspection frequency, the bond 
status of the permit, the telephone number and address of [the] 
Department of Environmental Protection Office where written comments 
on the reduced inspection frequency may be submitted, and the 
closing date of the comment period. Following the inspection and 
public notice, the Secretary shall prepare and maintain for public 
review a written finding justifying the alternative inspection 
frequency selected. This written finding shall justify the new 
inspection frequency by affirmatively addressing in detail all of 
the following criteria:
    20.1.a.6.A. Whether, and to what extent, there exists on the 
site impoundments, earthen structures or other conditions that pose, 
or may reasonably be expected to ripen into, imminent dangers to the 
health or safety of the public or significant environmental harms to 
land, air, or water resources;
    20.1.a.6.B. The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    20.1.a.6.C. The degree to which erosion and sediment control is 
present and functioning;
    20.1.a.6.D. The extent to which the site is located near or 
above urbanized areas, communities, occupied dwellings, schools and 
other public or commercial buildings and facilities;
    20.1.a.6.E. The extent of reclamation completed prior to 
abandonment and the degree of stability of unreclaimed areas, taking 
into consideration the physical characteristics of the land mined 
and the extent of settlement or revegetation that has occurred 
naturally with them; and
    20.1.a.6.F. Based on a review of the complete and partial 
inspection report record for the site during at least two 
consecutive years, the rate at which adverse environmental or public 
health and safety conditions have and can be expected to 
progressively deteriorate.

8. CSR 38-2-22.5.a. Coal Refuse Performance Standards--Controlled 
Placement

    This provision is amended in the second sentence by adding the 
words ``hauled or conveyed and'' immediately following the words ``mine 
refuse shall be.'' As amended, the sentence provides that coal mine 
refuse shall be hauled or conveyed and placed in a controlled manner to 
comply with the performance standards at CSR 38-2-22.5.a.1. through 
22.5.a.5.

9. CSR 38-2-23. Special Authorization for Coal Extraction as an 
Incidental Part of Development of Land for Commercial, Residential, 
Industrial, or Civic Use

    This section is deleted in its entirety. The remaining sections are 
renumbered accordingly.
    This revision by the State is in response to our disapproval of 
Section 23 as discussed in the May 5, 2000, and March 4, 2003, Federal 
Register notices and as required by 30 CFR 948.16(oooo) (65 FR 26133 
and 68 FR 10719).

10. CSR 38-2-24. Exemption for Coal Extraction Incidental to Extraction 
of Other Minerals

    This section is new and provides as follows.
    24.1. Exemption determination. The term other minerals as used in 
this section means any commercially valuable substance mined for its 
mineral value, excluding coal, topsoil, waste and fill material. No 
later than 90 days after filing of an administratively complete request 
for exemption, the Secretary shall make a written determination 
whether, and under what conditions, the persons claiming the exemption 
are exempt under this section, and shall notify the person making the 
request and persons submitting comments on the application of the 
determination and the basis for the determination. The determination of 
exemption shall be based upon information contained in the request and 
any other information available to the regulatory authority at that 
time. If the Secretary fails to provide a determination as specified in 
this section, an applicant who has not begun extraction may commence 
pending a determination unless the Secretary issues an interim finding, 
together with reasons, therefore, that the applicant may not begin coal 
extraction. Any person adversely affected by a determination of the 
Secretary pursuant to this section may file an appeal only in 
accordance with the provisions of article one, chapter twenty-two-b of 
this code, within thirty days after receipt of the determination. The 
filing of an appeal does not suspend the effect of the determination.
    24.2. Contents of request for exemption. A request for exemption 
shall be made part of a quarrying application and shall include at a 
minimum:
    24.2.a. The names and business address of the requestor to include 
a street address or route number;
    24.2.b. A list of the minerals to be extracted;
    24.2.c. Estimates of annual production of coal and the other 
minerals over the anticipated life of the operation;
    24.2.d. A reasonable estimate of the number of acres of coal that 
will be extracted;
    24.2.e. Evidence of publication of a public notice for an 
application for exemption. The notice that an application for exemption 
has been filed with the Secretary shall be published in a newspaper of 
general circulation in the county in which the operation is located and 
shall be published once and provide a thirty day comment period. The 
public notice must contain at a minimum:
    24.2.e.1. The quarrying number identifying the operation;
    24.2.e.2. A clear and accurate location map of a scale and detail 
found in the West Virginia General Highway Map. The map size will be at 
a minimum four inches (4) x four inches (4). 
Longitude and latitude lines and north arrow will be indicated on the 
map and such lines will cross at or near the center of the quarrying 
operation;
    24.2.e.3. The names and business address of the requestor to 
include a street address or route number;
    24.2.e.4. A narrative description clearly describing the location 
of the quarrying operation;
    24.2.e.5. The name and address of the Department of Environmental 
Protection Office where written comments on the request may be 
submitted;
    24.2.f. Geologic cross sections, maps or plans of the quarrying 
operation determine the following information:
    24.2.f.1. The locations (latitude and longitude) and elevations of 
all bore holes;
    24.2.f.2. The nature and depth of the various strata or overburden 
including geologic formation names and/or geologic members;
    24.2.f.3. The nature and thickness of any coal or other mineral to 
be extracted;
    24.2.g. A map of appropriate scale which clearly identifies the 
coal extraction area versus quarrying area;
    24.2.h. A general description of coal extraction and quarrying 
activities for the operation;

[[Page 26345]]

    24.2.i. Estimated annual revenues to be derived from bona fide 
sales of coal and other minerals to be extracted;
    24.2.j. If coal or the other minerals are to be used rather than 
sold, estimated annual fair market values at the time of projected use 
of the coal and other minerals to be extracted;
    24.2.k. The basis for all annual production, revenue, and fair 
market value estimates;
    24.2.l. A summary of sale commitments and agreements, if any, that 
the applicant has received for future delivery of other minerals to be 
extracted from the mining area, or a description of potential markets 
for the other minerals;
    24.2.m. If the other minerals are to be commercially used by the 
applicant, a description specifying the use; and
    24.2.n. Any other information pertinent to the qualification of the 
operation as exempt.
    24.3. Requirements for exemption.
    24.3.a. Activities are exempt from the requirements of the Act if 
all of the following are satisfied:
    24.3.a.1. The production of coal extracted from the mining area 
determined annually as described in this paragraph does not exceed 
16\2/3\ percent of the total annual production of coal and other 
minerals removed during such period for purposes of bona fide sale or 
reasonable commercial use.
    24.3.a.2. Coal is extracted from a geological stratum lying above 
or immediately below the deepest stratum from which other minerals are 
extracted for purposes of bona fide sale or reasonable commercial use.
    24.3.a.3. The revenue derived from the coal extracted from the 
mining area, determined annually does not exceed fifty (50) percent of 
the total revenue derived from the coal and other minerals removed for 
purposes of bona fide sale or reasonable commercial use. If the coal 
extracted or the minerals removed are used by the operator or 
transferred to a related entity for use instead of being sold in a bona 
fide sale, then the fair market value of the coal or other minerals 
shall be calculated at the time of use or transfer and shall be 
considered rather than revenue.
    24.3.b. Persons seeking or that have obtained an exemption from the 
requirements of the Act [West Virginia Surface Coal Mining and 
Reclamation Act] shall comply with the following:
    24.3.b.1. Each other mineral upon which an exemption under this 
section is based must be a commercially valuable mineral for which a 
market exists or which is quarried in bona fide anticipation that a 
market will exist for the mineral in the reasonably foreseeable future, 
not to exceed twelve months. A legally binding agreement for the future 
sale of other minerals is sufficient to demonstrate the above standard.
    24.3.b.2. If either coal or other minerals are transferred or sold 
by the operator to a related entity for its use or sale, the 
transaction must be made for legitimate business purposes.
    24.4. Conditions of exemption.
    A person conducting activities covered by this part shall:
    24.4.a. Maintain on site the information necessary to verify the 
exemption including, but not limited to, commercial use and sales 
information, extraction tonnages, and a copy of the exemption 
application and the Department's exemption approval;
    24.4.b. Notify the Department of Environmental Protection upon the 
completion or permanent cessation of all coal extraction activities.
    24.5. Stockpiling of minerals.
    24.5.a. Coal extracted and stockpiled may be excluded from the 
calculation of annual production until the time of its sale, transfer 
to a related entity or use:
    24.5.a.1. Up to an amount equaling a 12 month supply of the coal 
required for future sale, transfer or use as calculated based upon the 
average annual sales, transfer and use from the mining area over the 
two preceding years; or
    24.5.a.2. For a mining area where coal has been extracted for a 
period of less than two years, up to an amount that would represent a 
12 month supply of the coal required for future sales, transfer or use 
as calculated based on the average amount of coal sold, transferred or 
used each month.
    24.5.b. The Department of Environmental Protection shall disallow 
all or part of an operator's tonnages of stockpiled other minerals for 
purposes of meeting the requirements of this part if the operator fails 
to maintain adequate and verifiable records of the mining area of 
origin, the disposition of stockpiles or if the disposition of the 
stockpiles indicates the lack of commercial use or market for the 
minerals.
    The Department of Environmental Protection may only allow an 
operator to utilize tonnages of stockpiled other minerals for purposes 
of meeting the requirements of this part if:
    24.5.b.1. The stockpiling is necessary to meet market conditions or 
is consistent with generally accepted industry practices; and
    24.5.b.2. Except as provided in 24.5.b.3. of this section, the 
stockpiled other minerals do not exceed a 12 month supply of the 
mineral required for future sales as approved by the regulatory 
authority on the basis of the exemption application.
    24.5.b.3. The Department of Environmental Protection may allow an 
operator to utilize tonnages of stockpiled other minerals beyond the 12 
month limit established in 24.5.b.2. of this section if the operator 
can demonstrate to the Department of Environmental Protection's 
satisfaction that the additional tonnage is required to meet future 
business obligations of the operator, such as may be demonstrated by a 
legally binding agreement for future delivery of the minerals.
    24.5.b.4. The Department of Environmental Protection may 
periodically revise the other mineral stockpile tonnage limits in 
accordance with the criteria established by 24.5.b.2. and 3. of this 
section based on additional information available to the Department of 
Environmental Protection.
    24.6. Revocation and enforcement.
    24.6.a. The Department of Environmental Protection shall conduct an 
annual compliance review of the operation requesting exemption.
    24.6.b. If the Department of Environmental Protection has reason to 
believe that a specific operation was not exempt at the end of the 
previous reporting period, is not exempt, or will be unable to satisfy 
the exemption criteria at the end of the current reporting period, the 
Department of Environmental Protection shall notify the operator that 
the exemption may be revoked and the reason(s) therefore. The exemption 
will be revoked unless the operator demonstrates to the Department of 
Environmental Protection within 30 days that the operation in question 
should continue to be exempt.
    24.6.c. If the Department of Environmental Protection finds that an 
operator has not demonstrated that activities conducted in the 
operation area qualify for the exemption, the Department of 
Environmental Protection shall revoke the exemption and immediately 
notify the operator and commenter(s). If a decision is made not to 
revoke an exemption, the Secretary shall immediately notify the 
operator and commenter(s).
    24.6.d. Any adversely affected person by a determination of the 
Secretary pursuant to this section may file an appeal only in 
accordance with the provisions of WV Sec.  22B-1-1 et seq. of this 
code, within thirty days after receipt of the determination. The filing 
of an appeal does not suspend the effect of the determination.
    24.6.e. Direct enforcement.

[[Page 26346]]

    24.6.e.1. An operator mining in accordance with the terms of an 
approved exemption shall not be cited for violations of WV Sec.  22-3 
et seq. or [section] 38-2 et seq. that occurred prior to the revocation 
of the exemption. Provided, however, an operator who does not conduct 
activities in accordance with the terms of an approved exemption and 
knows or should have known that the activities are not in accordance 
with the approved exemption shall be subject to direct enforcement 
action for violations of WV [section] 22-3 et seq. or [section] 38-2 et 
seq. that occur during the period of the activities.
    24.6.e.2. Upon revocation of an exemption or denial of an exemption 
application, an operator shall stop conducting surface coal mining 
operations until a permit is obtained, and shall comply with the 
reclamation standards of WV [section] 22-3 et seq. or [section] 38-2 et 
seq. with regard to conditions, areas, and activities existing at the 
time of revocation or denial.
    24.7. Reporting requirements.
    24.7.a.1. Following approval by the Department of Environmental 
Protection of an exemption for an operation, the person receiving the 
exemption shall file a quarterly production report with the Department 
of Environmental Protection containing the information specified in 
24.7.a.3. of this section.
    24.7.a.2. The report shall be filed no later than 30 days after the 
end of each quarter.
    24.7.a.3. The information in the report shall cover:
    24.7.a.3.A. Quarterly production of coal and other minerals, and
    24.7.a.3.B. The cumulative production of coal and other minerals.
    24.7.a.3.C. The number of tons of coal stockpiled;
    24.7.a.3.D. The number of tons of other minerals stockpiled by the 
operator.
    24.7.b.1. Following approval by the Department of Environmental 
Protection of an exemption for an operation, the person receiving the 
exemption shall file an annual production report with the Department of 
Environmental Protection containing the information specified in 
24.7.b.3.of this section.
    24.7.b.2. The report shall be filed no later than 30 days after the 
end of each calendar year.
    24.7.b.3. The information in the report shall include:
    24.7.b.3.a. The number of tons of extracted coal sold in bona fide 
sales and the total revenue derived from these sales;
    24.7.b.3.b. The number of tons of coal extracted and used or 
transferred by the operator or related entity and the estimated total 
fair market value of this coal;
    24.7.b.3.c. The number of tons of coal stockpiled;
    24.7.b.3.d. The number of tons of other commercially valuable 
minerals extracted and sold in bona fide sales and total revenue 
derived from these sales;
    24.7.b.3.e. The number of tons of other commercially valuable 
minerals extracted and used or transferred by the operator or related 
entity and the estimated total fair market value of these minerals;
    24.7.b.3 .f. The number of tons of other commercially valuable 
minerals removed and stockpiled by the operator;
    24.7.b.3.g. The annual production of coal and other minerals and 
the annual revenue derived from coal and other minerals; and
    24.7.b.3.h. The annual production of coal and other minerals and 
the annual revenue derived from coal and other minerals during the 
preceding year.
    24.8. Public Availability of Information.
    24.8.1. Except as provided in 24.8.2, all information submitted to 
the Secretary shall be made immediately available for public inspection 
and copying at the office with jurisdiction over coal mining in the 
locality of the subject exempt operation, until at least three (3) 
years after expiration of the period during which the subject mining 
area is active.
    24.8.2 The Secretary may keep information submitted to the 
Secretary confidential if the person submitting it requests in writing, 
at the time of submission, that it be kept confidential and if the 
information concerns trade secrets or is privileged commercial or 
financial information of the persons intending to conduct operations 
under this rule.
    24.8.3. Information requested to be held as confidential under 
subsection 24.8.2 shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking and 
opposing disclosure of the information.
    24.9. Right of Inspection and Entry.
    24.9.1 Authorized representatives of the Secretary and the 
Secretary of the U.S. Department of the Interior shall have the right 
to conduct inspections of operations claiming exemption.
    24.9.2. Each authorized representative of the Secretary and the 
Secretary of the U.S. Department of the Interior conducting an 
inspection under this rule shall:
    24.9.2.a. Have a right of entry to, upon, and through any mining 
and reclamation operations without advance notice or a search warrant, 
upon presentation of appropriate credentials;
    24.9.2.b. At reasonable times and without delay, have access to and 
copy any records relevant to the exemption; and
    24.9.2.c. Have a right to gather physical and photographic evidence 
to document conditions, practices, or violations at a site.
    24.9.3. No search warrant shall be required with respect to any 
activity under 24.9.1 and 24.9.2., except that a search warrant may be 
required for entry into a building.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the West Virginia program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Charleston Field Office may not be logged 
in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include Attn: SATS NO. WV-102-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

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or

[[Page 26347]]

town, must state this prominently at the beginning of their 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, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on 
May 27, 2004. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please 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, we will post notices of 
meetings at the locations listed under

ADDRESSES: We will make a written summary of each meeting a part of the 
Administrative Record.

IV. 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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

[[Page 26348]]

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 laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 21, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-10747 Filed 5-11-04; 8:45 am]
BILLING CODE 4310-05-P