[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Rules and Regulations]
[Pages 6575-6591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2411]
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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: Final rule; approval of amendment.
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SUMMARY: We are approving, with certain exceptions, 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 proposed revisions to the Code of
State Regulations (CSR), as authorized by Committee Substitute for
House Bill 4193. The State revised 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 provisions to ensure reclamation and husbandry techniques
that are conducive to the development of productive forestlands and
wildlife habitat after mining.
EFFECTIVE DATE: February 8, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158, Internet address:
[email protected].
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 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 that reclamation techniques and husbandry
practices 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, were previously submitted to OSM
for approval. Therefore, we included CSR 38-2-24 in its entirety in our
proposed rule notice, and we requested public comment on all of Section
24 (Administrative Record Number WV-1390) (Finding 10 below).
We announced receipt of the proposed amendment in the May 12, 2004,
Federal Register (69 FR 26340). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the proposed amendment (Administrative
Record Number WV-1396). We did not hold a hearing or a meeting because
no one requested one. The public comment period closed on June 11,
2004. We received comments from one individual and two Federal
agencies.
We note that the proposed rules that we announced in the May 12,
2004, Federal Register differ in some respects from the final rules
that are on file with the West Virginia Secretary of State. While these
differences are minor and do not affect our findings below one way or
the other, we recommend that the State correct these differences to
avoid any confusion in the future.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment, except as discussed below. Any revisions that
we do not specifically discuss below concern nonsubstantive wording or
editorial changes and are approved here without discussion.
1. CSR 38-2-3.12.a.1. Subsidence Control Plan
This provision is amended by changing a term relating 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.''
The revision of the scale term used in this provision is intended
to adopt standard language concerning map scales. Concerning the map
scale of 1'' = 1000' or ``larger,'' the word ``larger'' is intended to
indicate that an acceptable scale would also be, for example, 1'' =
[[Page 6576]]
750' or 1'' = 500'. Such larger scales, though smaller in number, would
allow a map to accurately show the location of small structures such as
houses, churches, community buildings, etc.
We find that the amendment to the last sentence, where the word
``less'' is deleted and replaced by the word ``larger,'' is consistent
with and no less effective than the Federal regulations at 30 CFR
784.20(a)(1) concerning the map to be submitted with a pre-subsidence
survey and can be approved. The amendment to the first sentence,
however, contains an inadvertent error. In the first sentence, the word
``less'' is deleted and replaced by the word ``more.'' It is our
understanding that the word ``more'' is intended to be ``larger,'' and
the inadvertent error will be corrected in the future. Our approval of
the amendments to CSR 38-2-3.12.a.1 is based upon that understanding.
We note that the amendments to this paragraph satisfy an issue in a
30 CFR part 732 notification dated June 7, 1996, that we had previously
sent the State (Administrative Record Number WV-1037(a)). The Federal
regulations at 30 CFR 732.17(d) provide that OSM must notify the State
of all changes in SMCRA and the Federal regulations that will require
an amendment to the State program. Such letters sent by us are often
referred to as ``732 letters or notifications.'' The part 732 letter
issue that is being satisfied concerns the scale of the subsidence
control plan map as required by the State at CSR 38-2-3.12.a.1.
2. CSR 38-2-7.6. Forest Land
This entire subsection is new. As we stated above at Section II,
Submission of the Amendment, the State is adding new provisions
concerning ``Forestland'' and ``Wildlife'' to ensure that reclamation
techniques and husbandry practices that are conducive to productive
forestlands and wildlife habitats are followed by coal mining
operators. 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.
Trees are a renewable resource, and we believe that reforestation
is a good investment, both environmentally and economically.
Environmentally, trees minimize soil erosion, remove carbon dioxide
from the air, provide wildlife habitat and diverse plant species, and
help conserve water resources. Economically, high quality timber can
offer substantial revenue for landowners and job opportunities for
local residents in terms of logging, furniture making, woodworking,
etc. In addition, planting trees restores our forests, which are
important recreational areas for hunting, hiking, camping and mountain
biking.
For the past several years, OSM has been working with its partners
in the coal mining States to identify and promote methods that would
enhance postmining land use by planting more high-value hardwood trees
on reclaimed coal mined lands and enhancing the survival and growth
rates of those trees that are planted. To accomplish these goals, OSM
conducted several outreach symposia and interactive forums with coal
mining States, industry representatives, reclamation researchers and
others to identify information on successful reforestation efforts and
technologies. OSM has also sought to identify and remove specific
impediments to tree planting and for promoting technologies with
potential for enhancing reforestation efforts. Recently, to promote
reforestation in the Appalachian Region, OSM and the States of
Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, Virginia and West
Virginia have jointly started the Appalachian Regional Reforestation
Initiative (ARRI) to accomplish the goals of reclaiming more active and
abandoned mined lands with hardwood forests, and increasing the
survival and growth rates of the planted trees.
The ARRI promotes the use of specific planting methods that
increase the survival and growth rates of trees. Collectively, these
methods are referred to as the forestry reclamation approach (FRA). The
FRA methods focus on the following: (1) Creating a suitable rooting
medium for good tree growth that is no less than four feet deep and
comprised of topsoil, weathered sandstone and/or the best available
material; (2) loosely grading the topsoil or topsoil substitutes to
create a non-compacted growth medium; (3) use of native and non-
competitive ground covers that are compatible with growing trees; (4)
planting two types of trees--early succession species for wildlife and
soil stability, and commercially valuable crop trees; and (5) using
proper tree planting techniques. Over the past 20 years of Federal
oversight, OSM has learned that soil compaction by heavy equipment
during postmining reclamation is a primary factor that inhibits
vigorous tree growth. Likewise, OSM has learned that competition with
ground cover vegetation also seriously inhibits successful
reforestation. The FRA methods identified above clearly focus on
eliminating both of these impediments to successful reforestation.
West Virginia's proposed regulations at CSR 38-2-7.6 concerning
forest land postmining land use (this Finding), and CSR 38-2-7.7
concerning wildlife postmining land use (Finding 3 below) incorporate
the FRA methods identified above and are intended to promote vigorous
hardwood forests, while providing for wildlife habitat. In this finding
and in Finding 3 below, in addition to evaluating the proposed
provisions for consistency with the Federal regulations, we will also
review the proposed provisions in the light of the planting methods
recommended under the FRA for promoting vigorous hardwood forests.
a. 7.6.a. This subsection provides as follows:
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.
New CSR 38-2-7.6.a clarifies that the forest land provisions at CSR
38-2-7.6 apply only to mining operations on lands that will be returned
to their approximate original contour (AOC). Other State forestry-
related provisions apply to mining operations on lands that receive a
variance from the requirements to return mined lands to AOC under CSR
38-2-14.12 and W.Va. Code 22-3-13(c). Specifically, CSR 38-2-7.4
provides the standards applicable to mountaintop removal mining
operations with a variance from the requirement to return the land to
AOC and that have a postmining land use of commercial forestry and
forestry. We note that the proposed provision does not specifically
provide that other applicable provisions of the approved surface mining
program continue to apply. However, there is nothing in proposed
subsection 7.6.a that supersedes or negates compliance with other
applicable provisions such as with the general provisions concerning
premining and postmining land use at CSR 38-2-7.1, the alternative
postmining land use requirements at CSR 38-2-7.3, or with the bond
release requirements at CSR 38-2-12.2. Therefore, it is our
understanding that the other applicable provisions of the West Virginia
program continue to apply to the extent they are consistent with
promoting vigorous reforestation as stated above. While there is no
specific Federal counterpart to proposed CSR 38-2-7.6.a, we find that
this provision
[[Page 6577]]
is not inconsistent with the Federal regulations at 30 CFR 780.23
concerning reclamation plans and postmining land use information and
can be approved. Our approval of this provision is based upon our
understanding noted above.
b. 7.6.b. Planting Plan. Subsection 7.6.b. contains requirements
concerning the development, contents, and review of the planting plan.
Subsection 7.6.b. contains the following requirements.
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 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 the 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.
We note that proposed CSR 38-2-7.6.b.1.B.2. provides that the
Secretary of WVDEP shall ensure that the planting plans submitted under
CSR 38-2-7.6.b. comply with the requirements of this rule (CSR 38-2)
and other provisions of the approved State surface mining program. That
is, in addition to complying with the provisions of CSR 38-2-7.6
concerning forest land postmining land use, the applicant must also
comply with the other provisions of the approved State surface mining
program, such as CSR 38-2-9.3.a., which allows the planting plan to be
amended or modified prior to implementation, and CSR 38-2-9.3.b., which
requires the submission of a final planting report following Phase 1
bond reduction.
It is our understanding that the ``forester employed [by] the
Department of Environmental Protection'' at proposed CSR 38-2-
7.6.b.1.B.1 would only be a forester within that agency. The Federal
regulations at 30 CFR 816.116(b)(3)(i) provide that minimum stocking
and planting arrangements shall be specified by the regulatory
authority on the basis of local and regional conditions and after
consultation with and approval by the State agency responsible for the
administration of forestry. Consultation and approval may occur on
either a program wide or a permit-specific basis. Under the approved
State program, consultation regarding stocking standards occurs on a
program wide basis with assistance from the Division of Forestry on an
as needed basis. A memorandum of understanding (MOU) dated June 4,
1998, currently exists between the Division of Forestry and the WVDEP.
See Administrative Record Number WV-1109. It is our understanding that
this MOU is being updated and the required consultation with the State
agency responsible for the administration of forestry would continue to
occur under this MOU (Administrative Record Number WV-1404). We note
that this agreement is being updated to provide for future coordination
in the development and approval of planting plans specified in this
proposed provision and to ensure compliance with WV Code 30-19-1 et
seq., concerning Registered Foresters. Under the revised MOU, the
Division of Forestry will provide WVDEP technical assistance upon
request and assist State registered professional foresters in the
development of those permit applications where the postmining land use
includes forest land (CSR 38-2-9.3.g), commercial reforestation (CSR
38-2-9.3.h), commercial forestry (CSR 38-2-7.4), or forest land
(proposed CSR 38-2-7.6).
There are no direct Federal counterparts to the proposed provisions
at subsection 7.6.b concerning planting plan. However, we find that the
proposed provisions at CSR 38-2-7.6.b. are not inconsistent with the
Federal requirements at 30 CFR 780.18(b)(5) concerning revegetation
plan, and we are approving these provisions based upon our
understanding, as noted above. In the future, if the State fails to
update the MOU or fails to continue the MOU in force, OSM may
reconsider this decision and, if appropriate, require the State to
amend the West Virginia program to add the specifics contained in the
MOU, including the requirement to consult with the Division of
Forestry.
c.7.6.c. Soil placement, Substitute material and Grading. This new
provision provides as follows:
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. [concerning Top Soil Substitutes.]. 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
[[Page 6578]]
vegetative cover or cause or contribute to a violation of water
quality standards for the receiving stream.
We find that proposed 7.6.c.1, which requires at least four feet of
soil or soil substitutes to be redistributed in a uniform thickness, is
consistent with and no less effective than the Federal regulations
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be
approved. As we noted above in Finding 2.a., it is our understanding
that the other applicable provisions of the West Virginia program, such
as CSR 38-2-14.3.a concerning the removal and storage of topsoil, will
continue to apply to the extent they are consistent with these
provisions in promoting reestablishment of vigorous hardwood forests.
Our approval of proposed 7.6.c.1 is based upon that understanding.
Proposed 7.6.c.2, concerning the demonstrations needed for the
approval of topsoil substitutes, is consistent with and no less
effective than 30 CFR 816.22(b) concerning soil substitutes and
supplements and can be approved. We note that proposed 7.6.c.2
specifically requires compliance with the topsoil substitute
requirements at CSR 38-2-14.3.c., which require a demonstration of the
suitability of the substitutes for the approved postmining land use.
We find that proposed 7.6.c.3., which requires non-compaction of
the replaced soil, is consistent with and no less effective than the
Federal regulations at 30 CFR 816.22(d), concerning redistribution of
soil and can be approved. 30 CFR 816.22(d) requires redistribution of
soil in a manner which, at (i), is consistent with the approved
postmining land use, and, at (ii), prevents excess compaction of the
materials.
The proposed requirement for a static safety factor of 1.3 at
7.6.c.3 is consistent with and no less effective than the Federal
regulations at 30 CFR 816.102(a)(3), which require the backfill to
achieve a long-term slope stability factor of 1.3 and to prevent
slides. The proposed authorization to allow organic debris to be left
on the surface and in the soil is not inconsistent with the Federal
regulations, so long as placement of the organic material is limited to
the topsoil, or topsoil substitute, and this practice does not affect
stability in accordance with the Federal regulations at 30 CFR
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions
toward minimizing compaction and inoculating the soil with organic
materials is consistent with the needs of forestry and tree growth, and
with the Federal soil redistribution requirements at 30 CFR 816.22(d).
In addition, the proposed rule prohibits ``final'' grading and tracking
on slopes of less than 30 percent or about 17 degrees. We note that the
grading limitation on slopes of less than 30 percent at proposed
7.6.c.3 is restricted to ``final'' grading or tracking, and initial or
subsequent grading will not be prohibited on any slopes, regardless of
steepness. Furthermore, it is our understanding that if some areas with
less than 30 percent slope require grading or tracking to ensure
stability, minimize erosion, or to prevent slippage, the proposed rule
would not preclude an operator from undertaking grading or tracking and
normal husbandry practices as provided by CSR 38-2-11.7 and 14.15.a.1
and the Federal regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4).
Our approval of these provisions is based upon that understanding.
Proposed 7.6.c.4, provides for the repair of rills and gullies that
are unstable and/or disrupt the postmining land use or vegetative cover
or cause or contribute to a violation of water quality standards. The
Federal regulations at 30 CFR 816.95(b) require that rills and gullies
that either (1) disrupt the postmining land use or the reestablishment
of the vegetative cover or (2) cause or contribute to the violation of
water quality standards must be filled, regraded, or otherwise
stabilized. We understand the amended State provision concerning repair
of rills and gullies at CSR 38-2-7.6.c.4 to mean that a permittee is
generally not authorized to repair rills and gullies, except those
rills and gullies that are unstable and/or disrupt the approved
postmining land use, the establishment of vegetative cover, or cause or
contribute to a violation of water quality standards for the receiving
stream. This provision is intended to eliminate the compaction of soils
and the destruction of established vegetative cover that would normally
take place during routine repair of rills and gullies. Such compaction
can have a detrimental effect on tree growth. Therefore, we find the
limitation on the repair of rills and gullies is intended to protect
tree seedlings and other vegetative growth and help assure the success
of the forest land postmining land use.
CSR 38-2-7.6.c.4 does not explicitly require the repair of rills
and gullies that disrupt the approved postmining land use, the
establishment of vegetative cover, or cause or contribute to a
violation of water quality standards for the receiving stream. However,
the proposed provision in no way prohibits the repair of such rills and
gullies. Moreover, the approved State program already requires
restoration of the premining land use, or establishment of an approved
alternative postmining land use after mining (CSR 38-2-7.1.a. and 7.3,
respectively), the establishment of vegetative cover (CSR 38-2-
7.6.e.1), and compliance with applicable water quality standards (CSR
38-2-14.5.b). It necessarily follows from these provisions that rills
and gullies that could prevent compliance with the above requirements
must be filled, regraded, or otherwise stabilized. For this reason, we
find that the proposed amendment at CSR 38-2-7.6.c.4, taken in concert
with the above-referenced State regulatory requirements, does not
render the program less effective than 30 CFR 816.95(b) and can be
approved, so long as it is implemented in a manner consistent with that
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should
determine that West Virginia is implementing these provisions in a
manner that is inconsistent with this finding, a further amendment may
be required.
d. 7.6.d. Liming and Fertilizing. This new provision provides as
follows:
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.
There are no direct Federal counterparts to the specific liming and
fertilizing rates proposed by West Virginia. We find, however, that the
amendments do not render the West Virginia program less effective than
the Federal requirements at 30 CFR 779.21 concerning soil resources
information, 30 CFR 780.18 concerning reclamation plan general
requirements, and 30 CFR 816.22 concerning topsoil and subsoil and can
be approved.
e. 7.6.e. Revegetation. This new provision provides as follows:
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-
[[Page 6579]]
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).
There are no direct Federal counterpart regulations to the specific
provisions of CSR 38-2-7.6.e.1 concerning mixes and seeding rates of
temporary erosion control vegetative cover. In addition to being
compatible with plant and animal species of the region, it is our
understanding that the mixes, shrubs, tree seedlings and any
alternatives will, as provided by subsections 9.2.a, b, c and h and 30
CFR 816.111(a) and (b), be compatible with the approved postmining land
use, have the same seasonal characteristics of growth as the original
vegetation, be capable of self regeneration and plant succession, and
meet State and Federal seed, poisonous, and noxious plant and
introduced species requirements. Our finding that the proposed State
provisions are not inconsistent with the Federal requirements
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon
that understanding and these provisions can be approved, except as
noted below.
The proposed provision at CSR 38-2-7.6.e.1 provides that the
``ground vegetation shall be capable of stabilizing the soil from
excessive erosion.'' That provision is less effective than the Federal
regulations at 30 CFR 816.111(a)(4), which provides that the permittee
shall establish a vegetative cover that is ``[c]apable of stabilizing
the soil surface from erosion.'' As proposed, CSR 38-2-7.6.e.1 is less
effective than 30 CFR 816.111(a)(4) because the proposed standard to
stabilize the soil is modified by the word ``excessive.'' Therefore, we
are not approving the word ``excessive'' in the phrase ``capable of
stabilizing the soil from excessive erosion'' at CSR 38-2-7.6.e.1.
We find that the requirements concerning the selection of tree and
shrub species at CSR 38-2-7.6.e.2 are consistent with the general
Federal requirements concerning revegetation at 30 CFR 816.111 and can
be approved. We also find that the proposed stocking density of trees
at CSR 38-2-7.6.e.2.A and the stocking density of shrubs at CSR 38-2-
7.6.e.2.B, which have been approved by the Division of Forestry, are
consistent with and no less effective than the Federal requirements
concerning revegetation standards for success at 30 CFR 816.116(b)(3)
and can be approved.
f. 7.6.f. Standards for Success. This new provision provides as
follows:
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.
We find that the proposed success standards for revegetation at CSR
38-2-7.6.f. are consistent with and no less effective than the Federal
standards for revegetation success of lands to be developed for fish
and wildlife habitat, recreation, shelter belts, or forest products at
30 CFR 816.116(b)(3) and can be approved. We note that there is an
apparent typographical error in paragraph 7.6.f.2. Immediately after
providing that the minimum success standard shall be tree and shrub
survival per acre, the provision states that the minimum standard shall
be ``450 trees per acre and a seventy percent (70%) ground cover * *
*.'' It is our understanding that the intended meaning of this
provision is that the minimum success standard of tree and shrub
survival per acre shall be 450 trees/shrubs per acre with a seventy
percent (70%) ground cover, and that this apparent typographical error
will be corrected in the future. Our finding that CSR 38-2-7.6.f. is
consistent with and no less effective than the Federal standards at 30
CFR 816.116(b)(3) and can be approved is based upon that understanding.
3. CSR 38-2-7.7 Wildlife
a. 7.7.a. This subsection is new and provides as follows:
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.
New subsection CSR 38-2-7.7.a provides that subsection CSR 38-2-7.7
applies only to surface coal mining operations where the land will be
returned to AOC. In addition, the provision makes clear that plans
submitted to comply with CSR 38-2-7.7 must also comply with the
requirements of the other provisions of the approved State surface
mining program. That is, in addition to complying with the provisions
of CSR 38-2-7.7 concerning wildlife postmining land use, the applicant
must also comply with the other provisions of the approved State
surface mining program such as CSR 38-2-3.16 concerning fish and
wildlife resources information, CSR 38-2-7.3 concerning alternative
postmining land use criteria, or CSR 38-2-12.2 concerning bond release
requirements. There is no specific Federal counterpart to CSR 38-2-
7.7.a. However, we find that this provision is not inconsistent
[[Page 6580]]
with the Federal regulations at 30 CFR 780.23 concerning reclamation
plans and postmining land use information and can be approved.
b. 7.7.b. Planting Plan. Subdivision 7.7.b. contains requirements
concerning the development, contents, and review of the planting plan.
Subsection 7.7.b. contains the following requirements:
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.
We note that proposed CSR 38-2-7.7.b.1 requires the development of
each proposed planting plan by a wildlife biologist employed by West
Virginia Division of Natural Resources and made a part of the permit
application prior to approval by the Secretary of the WVDEP. The
Federal regulations at 30 CFR 816.116(b)(3)(i) provide that minimum
stocking and planting arrangements may be approved by the regulatory
authority, after consultation with and approval by the State agencies
responsible for the administration of forestry and wildlife programs.
Consultation and approval may occur on either a program wide or a
permit-specific basis. Under CSR 38-2-7.7.b.1, the approval of stocking
and planting arrangements will be on a permit-specific basis. An MOU
currently exists between the Division of Forestry and the WVDEP (see
Finding 2.b above). In addition, a Memorandum of Agreement (MOA) dated
September 16, 2003, currently exists between the Division of Natural
Resources and the WVDEP (Administrative Record Number WV-1405). It is
our understanding that the required consultation with the State
agencies responsible for the administration of forestry and planting
arrangements will continue to occur under these agreements.
There are no specific Federal counterparts to the remaining
proposed provisions at subsection 7.7.b concerning planting plan.
Nevertheless, we find that the proposed provisions at CSR 38-2-7.7.b.
are not inconsistent with the Federal requirements at 30 CFR
780.18(b)(5) concerning revegetation plan and can be approved. However,
our approval of CSR 38-2-7.7.b is based upon the understanding that the
MOU between the Division of Forestry and the WVDEP and the MOA between
the Division of Natural Resources and the WVDEP will continue to be in
force.
c. Soil Placement, Substitute Material and Grading. This new
provision provides as follows:
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 [7.7.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.
We find that proposed 7.7.c.1, which requires at least four feet of
soil or soil substitutes to be redistributed in a uniform thickness, is
consistent with and no less effective than the Federal regulations
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be
approved. As we noted above in Finding 3.a., in addition to complying
with the provisions of CSR 38-2-7.7, the applicant must also comply
with the other provisions of the approved State program. Therefore, our
approval of proposed 7.7.c.1 is based upon the understanding that the
State's topsoil rules at CSR 38-2-14.3(a) and (b) regarding removal and
redistribution will continue to apply in these situations.
Proposed 7.7.c.2, concerning the demonstrations needed for the
approval of topsoil substitutes, is consistent with and no less
effective than 30 CFR 816.22(b) concerning soil substitutes and
supplements and can be approved. We note that proposed 7.7.c.2
specifically requires compliance with the topsoil substitute
requirements at CSR 38-2-14.3.c., which requires a demonstration of the
suitability of the substitutes for the approved postmining land use. We
also note an apparent typographical error in proposed 7.7.c.2. The
reference to the depth requirements of ``7.6.c.1'' should be to
``7.7.c.1.'' However, because CSR 38-2-7.6.c.1 and CSR 38-2-7.7.c.1 are
substantively identical, the typographical error has no meaningful
effect. Nevertheless, we recommend that the State correct it in the
future.
We find that proposed 7.7.c.3., which requires non-compaction of
the replaced soil, is consistent with and no less effective than the
Federal regulations at 30 CFR 816.22(d), concerning redistribution of
soil and can be approved. The regulations at 30 CFR 816.22(d) require
redistribution of soil in a manner which, at (i), is consistent with
the approved postmining land use, and, at (ii), prevents excess
compaction of the materials.
The proposed requirement for a static safety factor of 1.3 at
7.7.c.3 is consistent with and no less effective than the Federal
regulations at 30 CFR 816.102(a)(3), which require the backfill to
achieve a long-term slope stability factor of 1.3 and to prevent
slides. The proposed authorization to allow organic debris to be left
on the surface and in the soil is not inconsistent with the Federal
regulations, so long as the placement of organic material is limited to
the topsoil, or topsoil substitute, and this practice does not affect
stability in accordance with the Federal regulations at 30 CFR
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions
toward minimizing compaction and inoculating the soil with organic
materials is consistent with the needs of forestry and tree growth, and
with the Federal soil redistribution requirements at 30 CFR 816.22(d).
In addition, the proposed rule prohibits final grading and tracking on
slopes of less than 30 percent or about 17 degrees. We note that the
grading limitation on slopes of less than 30 percent at proposed
7.7.c.3 is restricted to ``final''
[[Page 6581]]
grading or tracking, and initial or subsequent grading will not be
prohibited on any slopes, regardless of steepness. Furthermore, it is
our understanding that if some areas with less than 30 percent slope
require final grading or tracking to ensure stability, minimize
erosion, or to prevent slippage, the proposed rule would not preclude
an operator from undertaking such activities and other normal husbandry
practices as provided by CSR 38-2-11.7 and 14.15.a.1 and the Federal
regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). Our approval of
these provisions is based upon that understanding.
Proposed 7.7.c.4 provides for the repair of rills and gullies that
are unstable and/or disrupt the postmining land use or vegetative cover
or cause or contribute to a violation of water quality standards. The
Federal regulations at 30 CFR 816.95(b) require that rills and gullies
that either (1) disrupt the postmining land use or the reestablishment
of the vegetative cover or (2) cause or contribute to the violation of
water quality standards must be filled, regraded, or otherwise
stabilized. We understand the amended State provision concerning repair
of rills and gullies to mean that a permittee is generally not
authorized to repair rills and gullies, except those rills and gullies
that are unstable and/or disrupt the approved postmining land use, the
establishment of vegetative cover, or cause or contribute to a
violation of water quality standards for the receiving stream. This
provision is intended to eliminate the compaction of soils and the
destruction of established vegetative cover that would normally take
place during routine repair of rills and gullies. Such compaction can
have a detrimental effect on tree growth. Therefore, we find the
limitation on the repair of rills and gullies is intended to protect
tree seedlings and other vegetative growth and help assure the success
of the forestry components of the wildlife postmining land use.
CSR 38-2-7.7.c.4 does not explicitly require the repair of rills
and gullies that disrupt the approved postmining land use, the
establishment of vegetative cover, or cause or contribute to a
violation of water quality standards for the receiving stream. However,
the proposed provision in no way prohibits the repair of such rills and
gullies. Moreover, the approved State program already requires
restoration of the premining land use, or establishment of an approved
alternative postmining land use after mining, (CSR 38-2-7.1.a. and 7.3,
respectively), the establishment of vegetative cover (CSR 38-2-
7.7.e.1), and compliance with applicable water quality standards (CSR
38-2-14.5.b). It necessarily follows from these provisions that rills
and gullies that could prevent compliance with the above requirements
must be filled, regraded, or otherwise stabilized. For this reason, we
find that the proposed amendment at CSR 38-2-7.7.c.4, taken in concert
with the above-referenced State regulatory requirements, does not
render the program less effective than 30 CFR 816.95(b) and can be
approved, so long as it is implemented in a manner consistent with that
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should
determine that West Virginia is implementing these provisions in a
manner that is inconsistent with this finding, a further amendment may
be required.
d. 7.7.d. Liming and Fertilizing. This new provision provides as
follows:
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.
There are no direct Federal counterparts to the specific liming and
fertilizing rates proposed by West Virginia. We find, however, that the
proposed amendments do not render the West Virginia program less
effective than the Federal requirements at 30 CFR 779.21 concerning
soil resources information, 30 CFR 780.18 concerning reclamation plan
general requirements, and 30 CFR 816.22 concerning topsoil and subsoil
and can be approved.
e. 7.7.e. Revegetation. This new provision provides as follows:
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.
There are no direct Federal counterpart regulations concerning the
specific provisions of CSR 38-2-7.7.e.1 concerning mixes and seeding
rates of temporary erosion control vegetative cover. In addition to
being compatible with plant and animal species of the region, it is our
understanding that the mixes, shrubs, tree seedlings and any
alternatives will, as provided by subsections 9.2.a, b, c and h and 30
CFR 816.111(a) and (b), be compatible with the approved postmining land
use, have the same seasonal characteristics of growth as the original
vegetation, be capable of self regeneration and plant succession, and
meet State and Federal seed, poisonous, and noxious plant and
introduced species requirements. Our finding that the proposed State
provisions are not inconsistent with the Federal requirements
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon
that understanding and can be approved, except as noted below.
The proposed provision at CSR 38-2-7.7.e.1 provides that the
``ground vegetation shall be capable of stabilizing the soil from
excessive erosion.'' That
[[Page 6582]]
provision is less effective than the Federal regulations at 30 CFR 816/
817.111(a)(4), which provides that the permittee shall establish a
vegetative cover that is ``[c]apable of stabilizing the soil surface
from erosion.'' As proposed, CSR 38-2-7.7.e.1 is less effective than 30
CFR 816/817.111(a)(4) because the proposed standard to stabilize the
soil is modified by the word ``excessive.'' Therefore, we are not
approving the word ``excessive'' in the phrase ``capable of stabilizing
the soil from excessive erosion'' at CSR 38-2-7.7.e.1.
We find that the requirements concerning the selection of tree and
shrub species at CSR 38-2-7.7.e.2 are consistent with the Federal
requirements concerning revegetation, general requirements at 30 CFR
816.111 and can be approved, except as noted below. There is an
apparent typographical error where the proposed provision requires
compliance with 9.3.f when the proposed planting plan proposes a
stocking rate of less than 450 trees or shrubs per acre. Given that the
proposed requirements promote wildlife habitat and tree growth, the
proposed citation should be to 9.3.g which provides revegetation
standards for forestland and wildlife use. The citation to 9.3.f
concerns revegetation success standards for grazingland, hayland and
pastureland and, therefore, may not be appropriate for ``wildlife''
postmining land use. We find that the proposed stocking density of 450
woody plants at CSR 38-2-7.7.e.2 is consistent with and no less
effective than the Federal requirements concerning revegetation
standards for success at 30 CFR 816.116(b)(3) and can be approved. We
are making this finding with the understanding that the citation of
9.3.f will be corrected to 9.3.g. Furthermore, any reduction in tree
stocking rates beyond those set forth in 9.3.g and 9.3.h when the
postmining land use includes forest land will require the approval of
the Division of Forestry on a case-by-case basis.
As we noted above in Section II, the proposed rules differ from the
final rules that are on file with the Secretary of State in some
respects. The last sentence in proposed 7.7.e.2 provides, ``In all
instances, there shall be a minimum of four species of tree or shrub,
to include at least two hard mast producing species.'' The rules on
file with the Secretary of State do not include the word ``two'' before
hard mast producing species. We believe that this omission is most
likely a typographical error, and that the State intends to require a
minimum of two hard mast producing species. Nevertheless, because it
constitutes a difference that would not further the objectives of the
proposed rule, we recommend that this omission be corrected in the near
future.
f. 7.7.f. Standards for Success. This new provision provides as
follows:
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.
We find that the proposed success standards for revegetation at CSR
38-2-7.7.f. are consistent with and no less effective than the Federal
standards for revegetation success of lands to be developed for fish
and wildlife habitat, recreation, shelter belts, or forest products at
30 CFR 816.116(b)(3) and can be approved. We note that there is an
apparent typographical error in the provision at CSR 38-2-7.7.f.2. CSR
38-2-7.7.f.1 provides that the success of vegetation shall be
determined on the basis of tree and shrub survival and ground cover.
The proposed provision at CSR 38-2-7.7.f.2 lacks a reference to
``shrubs'' after the standard of ``450 trees per acre.'' The standard
should be ``450 trees/shrubs per acre with a 70 percent ground cover.''
It is our understanding that CSR 38-2-7.7.f. applies to trees and
shrubs, and therefore, the ``450'' standard applies to both trees and
shrubs. Our finding that CSR 38-2-7.7.f is consistent with and no less
effective than the Federal standards at 30 CFR 816.116(b)(3) and can be
approved is based upon that understanding.
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.
We find that the new language is consistent with and no less
effective than the Federal regulations at 30 CFR 816.116(b)(3)(i),
concerning standards for revegetation success of wildlife habitat, and
can be approved. The Federal provision at 30 CFR 816.116(b)(3)(i)
provides that minimum stocking and planting arrangements shall be
specified by the regulatory authority after consultation with and
approval by the State agencies responsible for the administration of
forestry and wildlife programs.
As discussed in Finding 2.b, an MOU currently exists between the
Division of Forestry and the WVDEP. In addition, as discussed in
Finding 3.b, an MOA currently exists between the Division of Natural
Resources and WVDEP. Because the tree and shrub stocking and planting
arrangement requirements at CSR 38-2-7.6.f.2, 7.7.f.2, and 9.3.g are
identical (450 trees/shrubs) as is the ground cover standard (70
percent), it is our understanding that both agreements could apply in
all three cases and would require a planting plan to be developed by a
wildlife biologist employed by the Division of Natural Resources when
wildlife use is to be the postmining land use. However, we should note
that both agreements may need to be updated to provide for future
coordination in the approval of planting plans involving forest land
and/or wildlife habitat.
We note that the amendment to this paragraph satisfies an item in a
30 CFR part 732 notification dated March 6, 1990, that we had
previously sent the State (Administrative Record Number WV-834). The
Federal regulations at 30 CFR 732.17(d) provide that OSM must notify
the State of all changes in SMCRA and the Federal regulations that will
require an amendment to the State program. Such letters sent by us are
often referred to as ``732 letters or notifications.'' The issue that
is satisfied requires minimum stocking and planting arrangements to be
specified by the regulatory authority after consultation with and
approval by the State agencies responsible for the administration of
forestry and wildlife programs. With this action, all issues in our
March 6, 1990, part 732 notification have been satisfied.
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
[[Page 6583]]
``(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.
The proposed rule provides for an AOC waiver pursuant to WV Code
22-3-13 and this rule (CSR 38-2). The revision clarifies when an AOC
variance can be granted. In addition to the mountaintop removal AOC
variance provision at WV Code 22-3-13(c)(2), there is the steep slope
AOC variance provision at WV Code 22-2-13(e), and the AOC variance
provisions for thin or thick overburden at WV Code 22-3-13(b). We find
that the proposed revision, which includes a citation to all AOC
variances authorized under the approved State program, does not render
the West Virginia program less stringent than Section 515 of SMCRA nor
less effective than the Federal regulations and can be approved.
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 a December 3, 2002, Federal Register notice (67 FR 71832), we
deferred rendering a decision on an earlier proposal by WVDEP to delete
the language quoted above. We deferred our decision because the
deletion of the requirement was an example of an action that could
adversely affect the State's alternative bonding system (ABS) and such
a change needed to be reviewed by the State's Special Reclamation Fund
Advisory Council. During the Interim Hearing of August 22, 2004, of the
Joint State Judiciary and Economic Development Legislative Committees,
the Advisory Council warned that the State's ABS still has insufficient
revenue to meet its obligations. The proposed retention of the language
should help to ensure that the State's ABS will generate sufficient
revenue to complete reclamation of bond forfeiture sites, including
those with AOC variances. Therefore, we are approving the amendment.
For more information, see the December 3, 2002, Federal Register,
Finding 12 (67 FR 71832, 71836-71837).
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.
The proposed revision is in response to our 30 CFR part 732
notification dated July 22, 1997 (Administrative Record Number WV-
1071). We find the proposed provisions at CSR 38-2-20.1.a.6 to be
substantively identical to the Federal regulations at 30 CFR 840.11(h),
except as described below, and can be approved.
As we noted above in Section II, the proposed State rules differ
from the final rules that are on file with the Secretary of State in
some respects. The first sentence in proposed 20.1.a.6 provides, ``When
a permit has been revoked and is not under a reclamation contract, 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.'' The rule summary that was filed with us
and the rules on file with the Secretary of State do not include the
words ``and is not under a reclamation contract'' after the word
revoked. However, this phrase does appear in the proposed State rules
that were submitted to us for approval. While the presence or absence
of the phrase ``and is not under a reclamation contract'' does not
affect our decision concerning CSR 38-2-20.1.a.6, we recommend that the
WVDEP resolve this apparent discrepancy for the clarity of the West
Virginia program. Because the phrase quoted above is absent from the
rule summary and the final rules which are on file with the Secretary
of State, we have advised the State that the quoted language will not
be included in our approval of CSR 38-2-20.1.a.6 (Administrative Record
Number WV-1406).
The proposed rules at CSR 38-2-20.1.a.6.F, concerning written
findings, provide for the review of the complete and partial inspection
report record for the site during ``at least two consecutive years.''
The State provision differs slightly from the counterpart Federal
requirement, which provides for such review of the record for the site
during ``at least the last two consecutive years.'' The State provision
at CSR 38-2-20.1.a.6.F lacks the requirement that the review of the
inspection record must be for at least ``the last'' two consecutive
years. However, in accordance with its policy dated November 3, 2004,
the State will consider inspection records for at least the last two
consecutive years when establishing the inspection frequency for a bond
forfeiture site
[[Page 6584]]
(Administrative Record Number WV-1409).
The proposed rule does not include counterparts to the Federal
regulations at 30 CFR 840.11(g)(1) and (g)(3). Subdivision (g) provides
that ``abandoned site'' means a surface coal mining and reclamation
operation for which the regulatory authority has found in writing that,
at (g)(1), all surface and underground coal mining and reclamation
activities at the site have ceased. Subdivision (g)(3) requires the
regulatory authority to take appropriate measures to preclude a
permittee, and owners and controllers of the permittee, with a revoked
permit from receiving future permits, and to initiate alternative
enforcement action to ensure abatement of existing violations at bond
forfeiture sites. The State's approved program authorizes WVDEP to take
such action, but the proposed State rules do not specifically require
it. However, the WVDEP's policy dated November 3, 2004, addresses these
concerns and provides the following:
In addition to the written requirements in CSR 38-2-29.1.a.6
when reducing inspection frequency at bond forfeiture sites not
under reclamation contract, the following shall apply:
* * * * *
--The agency will make a written finding that all surface and
underground coal mining and reclamation activities at the site have
ceased;
--The agency will make a written finding that we are taking
appropriate measures to preclude the permittee and operator, and
owners and controllers of the permittee and operator, with a revoked
permit, from receiving future permits while violations continue at
the site; and
--Make a written finding that an enforcement action pursuant to West
Virginia Code 22-3-17(g), (h) or (j) is being initiated to ensure
abatement of existing violations or that there will not be a
reoccurrence of violations at the bond forfeiture site, except where
after evaluating the circumstances it concludes that further
enforcement offers little or no likelihood of successfully
compelling abatement or recovering any reclamation costs.
Unlike the Federal rules, West Virginia's proposed rules and policy
do not provide for reduced inspection frequency at abandoned sites.
West Virginia does not reference its show cause procedures at WV Code
22-3-17(b) in its policy, because sites with revoked permits have
already been subjected to the State's show cause process. In addition,
abandoned sites for which the permits have not been revoked will still
be inspected in accordance with CSR 38-2-20.1.a.1 and 38-2-20.1.a.2.
Therefore, we find that the State's proposed inspection frequency
requirements, together with the implementation of the policy as
described above, are no less effective than the Federal requirements at
30 CFR 840.11(g) and (h) and can be approved. Furthermore, the proposed
revision and the policy mentioned above satisfy this issue as described
in our 30 CFR part 732 notification dated July 22, 1997.
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. We find that by adding the words ``hauled or conveyed,'' CSR
38-2-22.5.a is substantively identical to the Federal regulations at 30
CFR 816/817.81(a) and, therefore, the amendment can be approved. We
note that this change is in response to and satisfies an item in OSM's
30 CFR part 732 notification to the State of July 22, 1997
(Administrative Record Number WV-1071).
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 provision allowed special authorizations
for coal extraction as an incidental part of the development of land
for commercial, residential, industrial, or civic use. The deletion of
this section by the State is in response to our disapproval of Section
23 at 30 CFR 948.12(a)(4) as discussed in the May 5, 2000, and March 4,
2003, Federal Register notices and as required by the required program
amendment codified in the Federal regulations at 30 CFR 948.16(oooo)
(65 FR 26133 and 68 FR 10719, respectively). The deletion of the
requirements at Section 23 renders the State's rules no less effective
than the Federal regulations and can be approved. This approval
resolves the required program amendment at 30 CFR 948.16(oooo), which
can be removed.
10. CSR 38-2-24. Exemption for Coal Extraction Incidental to Extraction
of Other Minerals
This section is new and provides as follows:
CSR 38-2-24 Exemption for Coal Extraction Incidental to
Extraction of Other Minerals.
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 [the] 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;
[[Page 6585]]
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;
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
[the West Virginia Surface Coal Mining and Reclamation 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.
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.
[[Page 6586]]
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.
The proposed revisions are in response to our 30 CFR part 732
notification dated March 6, 1990 (Administrative Record Number WV-834).
Except as noted below, we find that the proposed amendments at CSR 38-
2-24, concerning an exemption for coal extraction incidental to
extraction of other minerals, are substantively identical to the
counterpart Federal regulations at 30 CFR part 702 and can be approved.
CSR 38-2-24.2.c. The State provides that a request for an exemption
shall be made part of a quarrying application and shall at a minimum
include ``[e]stimates of annual production of coal and the other
minerals over the anticipated life of the operation.'' The counterpart
Federal regulations at 30 CFR 702.12(c) provide that, at a minimum, an
application shall include estimates of annual production of coal and
the other minerals within ``each mining area'' over the anticipated
life of the mining operation. The proposed State provision lacks a
counterpart to the Federal phrase ``each mining area.''
The Federal regulations at 30 CFR 702.5(d) define mining area to
mean an individual excavation site or pit from which coal, other
minerals and overburden are removed. The intended purpose of the term
``mining area'' is discussed in the December 20, 1989, Federal Register
notice in which the Federal regulations at 30 CFR part 702 were
announced (54 FR 52092, 52096). In that notice, OSM stated that the
primary purpose for the definition of mining area being limited to an
individual excavation site or pit is to preclude an operator from
averaging mineral tonnages from different locations to gain an
unwarranted exemption from the Act. The definition also prohibits an
operator from claiming an exemption by combining production from
distinct noncoal and coal operations. Each excavation site or pit must
individually qualify for the exemption in accordance with the
requirements for exemption under 30 CFR 702.14. OSM further stated that
it recognizes that a single excavation site or pit may, depending on
its size, include a number of individual excavation activities. In this
context, OSM considers a mining area to include the excavation
activities occurring within a single excavation site or pit.
It is our understanding that quarries within West Virginia can be
typically characterized as single excavations that may, depending on
their size, include a number of individual excavation activities. For
this reason, we find that proposed CSR 38-2-24.2.c does not render the
West Virginia program less effective than the Federal regulations at 30
CFR 702.5(d) and can be approved. Our approval of this provision is
based upon that understanding. If the State fails to implement this
provision in a manner consistent with our understanding described
above, OSM may require the State to amend the West Virginia program to
require that an application shall include estimates of annual
production of coal and the other minerals within ``each mining area''
over the anticipated life of the mining operation.
CSR 38-2-24.2.d and 38-2-24.2.g. The Federal regulations at 30 CFR
702.12(h) provide that an application for an exemption shall include,
at a minimum, an estimate to the nearest acre of the number of acres
that will compose the mining area over the anticipated life of the
mining operation. While the proposed rules at CSR 38-2-24 do not
contain a specific counterpart to this Federal requirement, acreage
identification information is indirectly provided by two State
requirements. Proposed CSR 38-2-24.2.d provides that a request for an
exemption shall include, at a minimum, a reasonable estimate of the
number of acres of coal that will be mined. In addition, proposed CSR
38-2-24.2.g provides that a request for an exemption shall include at a
minimum a map of appropriate scale which clearly identifies the coal
extraction area versus the quarrying
[[Page 6587]]
area. We find that the information provided by an applicant for an
exemption under proposed CSR 38-2-24.2.d and CSR 38-2-24.2.g renders
the proposed amendments no less effective than the Federal regulations
at 30 CFR 702.12(h).
CSR 38-2-24.2.e.4. This proposed provision provides that the
newspaper notice published to inform the public of the application for
an exemption must contain a narrative description clearly describing
the location of the quarrying operation. This requirement is
substantively identical to the counterpart Federal provision at 30 CFR
702.12(i), except that the State provision does not provide for a
description of the proposed operation as does 30 CFR 702.12(i). We find
that this omission does not render the State provision less effective
because that information is available to the public via the quarry
identification number that is required by proposed CSR 38-2-24.2.e.1.
Under the proposed State rules, only quarries are eligible to obtain an
exemption under CSR 38-2-24, and the descriptive information about
those quarries is available to the public via the quarry number and the
narrative describing the location of such operations. Therefore, we
find that the lack of a specific State counterpart to 30 CFR 702.12(i)
concerning a description of the proposed operation does not render the
provision less effective than 30 CFR 702.12(i).
CSR 38-2-24.2.f.2. The Federal regulations at 30 CFR 702.12(j)
provide that an application for an exemption shall include, at a
minimum, the relative position and thickness of any material not
classified as ``other minerals'' that will also be extracted during the
conduct of mining activities. There is no specific State counterpart to
this Federal provision. However, the information concerning ``other
materials'' not classified as ``other minerals'' that will also be
extracted during the mining activities is required by the provision at
CSR 38-2-24.2.f.2. The State provision provides that an application for
an exemption shall include at a minimum the nature and depth of the
various strata or overburden including geologic formation names and/or
geologic members. This information would include, therefore, the
identification of the relative position and thickness of the coal,
``other minerals'' to be mined and the ``other materials'' not
classified as ``other minerals'' that will also be extracted during the
mining process. Therefore, we find that proposed CSR 38-2-24.2.f.2
renders the West Virginia program no less effective than the Federal
regulations at 30 CFR 702.12(j).
CSR 38-2-24.6.c. We note that proposed CSR 38-2-24.6.c, concerning
notification of the operator and commenter(s) of the WVDEP's
determination to revoke or not revoke an exemption, uses the term
``commenter(s)'' whereas the counterpart Federal provision at 30 CFR
702.17(c)(1) uses the term ``intervenors.'' Under the West Virginia
program, ``commenter(s)'' have the same rights as ``intervenors.''
Therefore, we find that the term ``commenter(s)'' at proposed CSR 38-2-
24.6.c does not render that provision less effective than the Federal
regulations at 30 CFR 702.17(c)(1).
CSR 38-2-24.7.a and 38-2-24.7.b. The proposed provisions at CSR 38-
2-24 lack counterparts to the Federal definitions of ``cumulative
measurement period'' at 30 CFR 702.5(a), ``cumulative production'' at
30 CFR 702.5(b), and ``cumulative revenue'' at 30 CFR 702.5(c). The
Federal term ``cumulative measurement period'' means the period of time
over which both cumulative production and cumulative revenue are
measured. The Federal definition also provides criteria to determine
the beginning of the cumulative measurement period, and for determining
the date of annual reporting. West Virginia does not propose to use
``cumulative measurement period,'' ``cumulative production'' or
``cumulative revenue'' to determine eligibility for the exemption.
Under the proposed rules at CSR 38-2-24.7.a and 24.7.b, West
Virginia is adopting quarterly reporting of certain information and
annual reporting at the end of each calendar year, respectively. All of
the data required to be reported under the Federal regulations at 30
CFR part 702 are required by the proposed State provisions, except the
reporting of ``cumulative production'' and ``cumulative revenue''
throughout the ``cumulative measurement period.''
Under the Federal definition of ``cumulative measurement period''
at 30 CFR 702.5(a), both production and revenue data would be recorded
from the beginning of the ``cumulative measurement period'' to the
present. These cumulative data would be used to determine eligibility
for initial approval of the exemption and for continued approval of the
exemption. OSM explained the purpose of the ``cumulative measurement
period'' in the preamble to the Federal Register notice in which OSM
approved the regulations at 30 CFR part 702. OSM stated that production
rates of coal and other minerals are usually not consistent over the
life of the mining operation. In some years, a relatively large amount
of coal may be produced; in other years, coal production may be small
or nonexistent. ``To avoid making such operations become subject to and
not subject to the jurisdiction of the Act, as may occur under the 12
consecutive month test, * * * OSM is adopting a rule that measures
production, adjusted for legitimate stockpiling, and revenue on a
cumulative basis'' (December 20, 1989; 54 FR 52092, 52095-6). West
Virginia is proposing not to adopt the ``cumulative measurement
period'' standard but, rather, will assess initial and continued
eligibility for this exemption using data on an annual basis.
West Virginia has chosen not to adopt the ``cumulative measurement
period'' and therefore does not allow for the possibility of such
operations becoming subject to and not subject to the jurisdiction of
the Act, as may occur if data are assessed only on an annual basis. We
find that while the State's decision not to use the ``cumulative
measurement period'' eliminates the flexibility afforded by the Federal
cumulative measurement provisions, that decision does not eliminate the
assurance that the tonnage or revenue derived from coal mined under an
exemption in West Virginia will not exceed 16\2/3\ percent of the total
coal and other minerals mined as required by the Federal provisions.
Furthermore, as provided by 24.7.a.2 and 24.7.b.2, a person receiving
the exemption shall file a quarterly production report with the WVDEP
no later than 30 days after the end of each quarter and an annual
production report within 30 days after the end of each ``calendar''
year, respectively.
As we noted above in Section II, the proposed rules differ from the
final rules that are on file with the Secretary of State in some
respects. The word ``calendar'' has been deleted at 24.7.b.2 as shown
above in the rules that are on file with the Secretary of State.
Nevertheless, we find this omission to be non-substantive, and the
intent of this provision remains substantially the same. Therefore, we
find that CSR 38-2-24 is no less effective than the Federal regulations
at 30 CFR part 702 and can be approved. We should note that the
implementation of the proposed provisions at CSR 38-2-24 will require
the WVDEP to conduct various financial accounting and auditing
activities to assess initial and continued eligibility of operations
under this exemption. OSM is available to assist the WVDEP by providing
training in the monitoring
[[Page 6588]]
and auditing of these kinds of operations.
Federal Provisions at 30 CFR Part 702 With No Direct State Counterparts
The State amendments at CSR 38-2-24 concerning exemption for coal
extraction incidental to extraction of other minerals do not contain
counterparts to all the Federal provisions at 30 CFR part 702. Each
instance in which the State lacks a specific Federal counterpart is
discussed below.
CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR
702.12(o) concerning operations having extracted coal or other minerals
prior to filing an application for an exemption. It is our
understanding that West Virginia does not currently authorize coal
removal for quarry operations. In addition, under the proposed
amendments, quarry operations must obtain an exemption prior to the
removal of coal. Therefore, we find that the lack of a counterpart to
30 CFR 702.12(o) does not render the West Virginia program less
effective than the Federal regulations at 30 CFR part 702.
CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR
702.15(c) concerning conducting operations in accordance with the
approved application or when authorized to extract coal under 30 CFR
702.11(b) or 702.11(e)(3) prior to submittal or approval of an
exemption application in accordance with the provisions at CSR 38-2-24.
We find that the lack of a counterpart to 30 CFR 702.15(c) does not
render the proposed rules less effective than the Federal regulations
for the following reasons. The Federal regulations at 30 CFR 702.11(b)
concern existing operations that have commenced coal extraction prior
to the effective date of the proposed State regulations. It is our
understanding that West Virginia does not currently authorize coal
removal for quarry operations, and under the proposed amendments,
quarry operations must obtain an exemption prior to the removal of
coal. Therefore, the West Virginia program does not need a counterpart
to the Federal regulations at 30 CFR 702.11(b).
The Federal regulations at 30 CFR 702.11(e)(3) concern coal removal
by an applicant if the regulatory authority fails to provide the
applicant with a determination within the time specified, unless the
regulatory authority issues an interim finding that the applicant may
not begin coal extraction. The State's counterpart to 30 CFR
702.11(e)(3) providing for an interim finding is at CSR 38-2-24.1, and
is no less effective than 30 CFR 702.11(e)(3).
As we noted above, the State lacks a counterpart to the specific
requirement at 30 CFR 702.15(c), which provides that a person
conducting activities under an exemption shall conduct operations in
accordance with the approved application. Although CSR 38-2-24 does not
contain this specific provision, we believe that it is only logical
that the proposed State rules implicitly require that an operator who
has applied for and received an exemption under the proposed rules at
CSR 38-2-24 or has applied for an exemption and more than 90 days has
passed under CSR 38-2-24.1, shall conduct operations in accordance with
the approved or pending application. It is also our understanding that
under the proposed rules at CSR 38-2-24 an operator conducting
activities to be covered by an exemption under that section will
conduct such operations in accordance with CSR 38-2-24. Our finding
that CSR 38-2-24 is not rendered less effective than the Federal
regulations at 30 CFR part 702.15(c) is based upon our understandings
discussed above. If, in future reviews, we should determine that West
Virginia is implementing these provisions in a manner that is
inconsistent with this finding, a further amendment may be required.
CSR 38-2-24 has no counterparts to the Federal definitions of
``annual production'' and ``annual revenue'' at 30 CFR 702.5(a) and
(b), respectively. However, the proposed rules clearly require
reporting starting with application approval, at the end of each
calendar quarter pursuant to CSR 38-2-24.7.a.1, and at the end of each
calendar year pursuant to CSR 38-2-24.7.b.1. Therefore, data will be
collected commencing at application approval, and it will be reported
both on a quarterly and annual basis. It is our understanding that the
State will have available all the data it needs to accurately determine
whether an exemption shall be continued or revoked. Therefore, we find
that CSR 38-2-24 is not rendered less effective than the Federal
regulations due to not having explicit definitions of ``annual
production'' and ``annual revenue.''
IV. Summary and Disposition of Comments
Public Comments
On May 12, 2004, we asked for public comments on the amendment
(Administrative Record Number WV-1396). One person responded on three
occasions (Administrative Record Numbers WV-1395, WV-1399 and WV-1407).
The commenter criticized the 1872 Mining Law and stated that it
desperately needs changing (Administrative Record Number WV-1407). One
of the primary purposes of this law is to promote mineral exploration
and development on Federal lands in the western United States. The
commenter stated that it is time that strong State regulations are put
in place to stop the 1872 law from being allowed to harm people and the
environment in this country today. In response, we note that coal
mining operations in West Virginia, and all other States as well, are
not regulated by the 1872 General Mining law per se, but are regulated
under SMCRA, a Federal law that was passed in 1977. Under SMCRA,
individual States are authorized to establish and implement their own
surface coal mining and reclamation programs if those programs are
deemed to be no less stringent than SMCRA and no less effective than
the Federal regulations that implement SMCRA. West Virginia administers
its own surface coal mining regulatory program that was approved by the
Secretary of the Department of the Interior in 1981.
Under SMCRA, individual states with an approved surface coal mining
regulatory program may amend their programs by sending to OSM copies of
the State's proposed statutory and/or regulatory changes for review and
approval by OSM. If OSM approves those amendments, they will become
part of the approved State regulatory program. The amendments that we
are approving in this notice today were submitted by the State, in
accordance with applicable Federal regulations, for our approval prior
to being added to the State's approved surface coal mining regulatory
program. When we approve an amendment to a State's approved coal mining
regulatory program, it is our judgment that the proposed amendments are
no less stringent than SMCRA and no less effective than the counterpart
Federal regulations at 30 CFR part 700 to end.
The commenter also stated that an environmental performance bond of
at least $25 million should be placed with the State before any work
starts which guarantees environmental clean up (Administrative Record
Number WV-1399). We believe this comment may address the State's
amendment to CSR 38-2-14.15.g, which increases the bond amount per acre
for operations seeking a variance under CSR 38-2-14.15.g, to the
maximum amount specified at W. Va. Code 22-3-12(b)(1) ($5,000 per
[[Page 6589]]
acre). Under the Federal regulations at 30 CFR 800.14(b), the amount of
a performance bond must be sufficient to assure the completion of the
reclamation plan if the work has to be performed by the regulatory
authority in the event of bond forfeiture, and in no case less than $10
thousand for the entire area under one permit. Under the Federal
regulations, therefore, the performance bond amount is not based upon a
fixed bond amount, but rather it is based upon the acreage of the
proposed permit and the estimated cost of completing the reclamation
plan if the work has to be performed by the regulatory authority in the
event of bond forfeiture. Under the State's proposed revision at CSR
38-2-14.15.g, whenever a variance is sought under CSR 38-2-14.15.g, the
site-specific bond amount per acre must be the maximum allowed under W.
Va. Code 22-3-12(b)(1). This increase, while it may not result in a $25
million total bond for any specific permit, will increase the bond
monies available for reclamation on all permits requesting a variance
under CSR 38-2-14.15.g. As we stated above at Finding 6, this proposed
requirement would also help assure that the State's alternative bonding
system will generate sufficient revenue to complete reclamation of bond
forfeiture sites, including those with AOC variances. Therefore, we are
approving the proposed amendment to CSR 38-2-14.15.g.
The commenter provided several general statements disapproving of
the way surface coal mining activities, including mountaintop removal
mining operations, are being regulated within the State and by OSM
(Administrative Record Numbers WV-1395, WV-1399, and WV-1407). The
commenter stated a desire to protect trees, birds, wildlife and earth
from mining, such as from flood damage and mountaintop removal mining,
that the commenter stated is taking place today. The commenter stated
that the postmining land must be left clean of toxins and residue. As
we noted above, surface coal mining and reclamation activities in West
Virginia are regulated under an approved State program that has been
found to be no less stringent than SMCRA. The proposed State provisions
at CSR 38-2-7.6 concerning forest land postmining land use and CSR 38-
2-7.7 concerning wildlife postmining land use were submitted by West
Virginia to ensure that reclamation techniques and husbandry practices
that promote productive forestlands and wildlife habitats are followed
by surface coal mining operations within the State. We believe that
these provisions, once implemented, will do much to enhance reclaimed
mine lands in West Virginia and to quell the commenter's concerns.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the West Virginia program
(Administrative Record Number WV-1391). We received comments from the
U.S. Department of Labor, Mine Safety and Health Administration (MSHA).
On May 15, 2004, MSHA stated that it found no changes or issues that
impact upon coal miners' health and safety (Administrative Record
Number WV-1398).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(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.).
By letter dated April 20, 2004, we requested comments and the
concurrence from EPA on the State's program amendments (Administrative
Record Number WV-1392). EPA responded by letter dated July 28, 2004,
and stated that it had reviewed the revisions and determined that there
are no apparent inconsistencies with the Clean Water Act or other
statutes and regulations under the EPA's jurisdiction (Administrative
Record Number WV-1402).
V. OSM's Decision
Based on the above findings, we are approving, except as noted
below, the program amendment West Virginia sent us on March 25, 2004.
In addition, the required program amendment codified at 30 CFR
948.16(oooo) is satisfied and can be removed, and the disapproval set
forth at 30 CFR 948.12(a)(4) has been resolved.
At CSR 38-2-7.6.e.1, we are not approving the word ``excessive.''
At CSR 38-2-7.7.e.1, we are not approving the word ``excessive.''
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948, which codify decisions concerning the West Virginia
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
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
[[Page 6590]]
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 our decision is on a State
regulatory program and does not involve Federal regulations 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 a portion of the
provisions in 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.) because they are 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. The Department of the Interior
also certifies that the provisions in this rule that are not based upon
counterpart Federal regulations 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.). This determination is based on
the fact that the provisions are administrative and procedural in
nature and are not expected to have a substantive effect on the
regulated industry.
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 fact that a portion
of the State provisions are based upon counterpart Federal regulations
for which an analysis was prepared and a determination made that the
Federal regulation was not considered a major rule. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
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 fact that a portion of
the State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an analysis was prepared and
a determination made that the Federal regulation did not impose an
unfunded mandate. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 29, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 948 is amended as
set forth below:
PART 948--WEST VIRGINIA
0
1. The authority citation for part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 948.12 is amended by adding new paragraph (h) to read as
follows.
Sec. 948.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(h) We are not approving the following provisions of the proposed
program amendment that West Virginia submitted on March 25, 2004:
(1) At CSR 38-2-7.6.e.1, the word ``excessive.''
(2) At CSR 38-2-7.7.e.1, the word ``excessive.''
0
3. Section 948.15 is amended by adding a new entry to the table in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
[[Page 6591]]
------------------------------------------------------------------------
Date of Citation/description
Original amendment submission publication of of approved
date final rule provisions
------------------------------------------------------------------------
* * * * * * *
March 25, 2004................ February 8, 2005. CSR 38-2-3.12.a.1;
7.6 (except the word
``excessive'' at
7.6.e.1); 7.7
(except the word
``excessive'' at
7.7.e.1); 9.3.g;
14.15.a.1; 14.15.g;
20.1.a.6; 22.5.a; 23
(deleted); and 24.
Reduced Inspection
Frequency Policy
dated November 3,
2004.
------------------------------------------------------------------------
0
4. Section 948.16 is amended by removing and reserving paragraph
(oooo).
[FR Doc. 05-2411 Filed 2-7-05; 8:45 am]
BILLING CODE 4310-05-P