West Virginia Program Amendment

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

West Virginia Program Amendment

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Notice of availability and opportunity for public comment.

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SUMMARY: OSM is making available for public review and comment its

draft decision document on a proposed amendment to the West Virginia

permanent regulatory program (hereinafter referred to as the West

Virginia program). The amendment concerns revisions to State law and

regulations governing the Special Reclamation Fund and bonding

requirements for surface coal mining operations. OSM has evaluated the

proposed changes and made tentative findings on whether they can be

approved as part of the West Virginia program. Where necessary, OSM

proposed required amendments to bring the program into compliance with

the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM is

inviting public comment on the proposed amendment and the tentative

findings contained in the draft decision document. A public meeting is

also scheduled.

DATES: Written comments must be received on or before 4 p.m., E.D.T. on

June 5, 1995. A public meeting will be held at 1 p.m., E.D.T. on May

30, 1995, at the Holiday Inn, Heart-Of-Town, Washington and Broad

Streets, Charleston, West Virginia.

ADDRESSES: Written comments should be mailed or hand delivered to James

C. Blankenship, Jr., Director, Charleston Field Office at the address

listed below.

Copies of the proposed amendment and draft decision document, the

West Virginia program, and the administrative record on the West

Virginia program are available for public review and copying at the

address below during normal business hours, Monday through Friday,

excluding holidays. Each requester may receive one free copy of the

proposed amendment and draft decision document by contacting OSM's

Charleston Field Office.

James C. Blankenship, Jr., Director, Charleston Field Office, Office of

Surface Mining Reclamation and Enforcement, 1027 Virginia Street East,

Charleston, West Virginia 25301, Telephone: (304) 347-7158

West Virginia Division of Environmental Protection, 10 McJunkin Road,

Nitro, West Virginia 25143, Telephone: (304) 759-0515.

In addition, copies of the proposed amendment and draft decision

document are available for inspection during regular business hours at

the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area

Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West

Virginia 26507, Telephone: (304) 291-4004

Office of Surface Mining Reclamation and Enforcement, Beckley Area

Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,

Telephone: (304) 255-5265

Office of Surface Mining Reclamation and Enforcement, Logan Area

Office, 313 Hudgins Street, 2nd Floor, P.O. Box 506, Logan, West

Virginia 25601, Telephone: (304) 752-2851.

FOR FURTHER INFORMATION CONTACT:

Mr. James C. Blankenship, Jr., Director, Charleston Field Office;

Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

SMCRA was passed in 1977 to address the growing environmental and

safety problems associated with coal mining. Under SMCRA, OSM works

with States to ensure that coal mines are operated in a manner that

protects citizens and the environment during mining, that the land is

restored to beneficial use following mining, and that the effects of

past mining at abandoned coal mines are mitigated.

Many coal-producing States, including West Virginia, have sought

and obtained approval from the Secretary of the Interior to carry out

SMCRA's requirements within their borders. In becoming the primary

enforcers of SMCRA, these ``primacy'' states accept a shared

responsibility with OSM to achieve the goals of the Act. Such States

join with OSM in a shared commitment to the protection of citizens--our

primary customers--from abusive mining practices, to be responsive to

their concerns, and to allow them full access to information needed to

evaluate the effects of mining on their health, safety, general

welfare, and property. This commitment also recognizes the need for

clear, fair, and consistently applied policies that are not

unnecessarily burdensome to the coal industry--producers of an

important source of our Nation's energy.

Under SMCRA, OSM sets minimum regulatory and reclamation standards.

Each primacy State ensures that coal mines are operated and reclaimed

in accordance with the standards in its approved State program. The

States serve as the front-line authorities for implementation and

enforcement of SMCRA, while OSM maintains a State performance

evaluation role and provides funding and technical assistance to States

to carry out their approved programs. OSM also is responsible for

taking direct enforcement action in a primacy State, if needed, to

protect the public in cases of imminent harm or, following appropriate

notice to the State, when a State acts in an arbitrary and capricious

manner in not taking needed enforcement actions required under tits

approved regulatory program.

Currently there are 24 primacy states that administer and enforce

regulatory programs under SMCRA. These states may amend their programs,

with OSM approval, at any time so long as they remain no less effective

than Federal regulatory requirements. In addition, whenever SMCRA or

implementing Federal regulations are revised, OSM is

[[Page 26856]] required to notify the States of the changes so that

they can revise their programs accordingly to remain no less effective

than the Federal requirements.

A major goal of SMCRA is to ensure adequate reclamation of all

areas disturbed by surface coal mining operations. To accomplish this,

mining is allowed to proceed only after an operator has filed a

performance bond of sufficient amount to ensure completion or

reclamation. In the event of bond forfeiture, the regulator authority

uses the performance bond money to contract for the necessary

reclamation work. SMCRA also allows for the adoption of an alternative

bonding system (ABS) so long as it achieves the purposes and objectives

of the conventional bonding system described above. Under an ABS,

rather than posting full-cost reclamation bonds, an operator is allowed

to participate in a bond pool which is to provide sufficient revenue at

any time to complete reclamation in the event of bond forfeiture.

As part of their approved programs, primacy States have adopted

procedures consistent with Federal bonding requirements. The Secretary

conditionally approved West Virginia's ABS on January 21, 1981 (46 FR

5326). After receipt of a required actuarial study, the Secretary fully

approved the State's ABS on March 1, 1983 (48 FR 8448), by finding it

consistent with section 509(c) of SMCRA.

Background information on the West Virginia program, including the

Secretary's findings, the disposition of comments, and the conditions

of approval can be found in the January 21, 1981, Federal Register (46

FR 5915). Subsequent actions concerning the conditions of approval and

program amendments can be found at 30 CFR 948.10, 948.12, 948.13,

948.15, and 948.16.

II. Discussion of the Proposed Amendment

On October 1, 1991, OSM notified West Virginia that it needed to

amend its ABS to be in compliance with sections 509(c) , 519(b) and

519(c) of SMCRA (Administrative Record No. 878). OSM's annual reviews

of the West Virginia program had found that the State's ABS no longer

met the requirements for such systems because, as of June 30, 1990,

liabilities exceeded assets by $6.2 million dollars. OSM also informed

the State that its ABS must provide for the abatement or treatment of

polluted water flowing from permanent program bond forfeiture sites

unless its approved program included some other form of financial

guarantee to provide for water treatment. The proposed amendment now

under consideration was submitted to OSM in response to this letter and

concurrent State initiatives to address bonding and water quality

problems.

In a series of three letters dated June 28, 1993, and July 30, 1993

(Administrative Record Nos. WV-888, WV-889 and WV-893), the West

Virginia Division of Environmental Protection (WVDEP) submitted an

amendment to its approved permanent regulatory program that included

numerous revisions to the West Virginia Surface Coal Mining and

Reclamation Act (WVSCMRA Sec. 22A-3-1 et seq.) and the West Virginia

Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et seq.). OSM

grouped the proposed revisions that concern bonding into one amendment

which is the subject of this notice. The proposed amendment will:

Allow for the selection and prioritization of bond

forfeiture sites to be reclaimed;

Limit administrative expenditures from the Special

Reclamation Fund to an amount not to exceed 10 percent of the total

annual assets in the Fund;

Raise the special reclamation tax from one cent to three

cents per ton and provide for the collection of the tax whenever

liabilities exceed assets;

Limit the amount of money that can be used for water

treatment to 25 percent of the annual amount of the fees collected;

Require site-specific bonds that reflect the potential

cost of reclamation but do not exceed $5,000 per acre;

Require penal bonds instead of performance bonds; and

Require bond forfeiture sites to be reclaimed in

accordance with the approved reclamation plan or modifications thereof.

By letter dated April 1, 1994, OSM informed the WVDEP of probable

deficiencies in the proposed amendment (Administrative Record No. WV-

916). The WVDEP and OSM met on April 25, May 5, June 20, and August 5,

1994, to resolve these issues. During this time, WVDEP and OSM

exchanged technical studies, policy statements, legal opinions, and

explanations to clarify positions and where possible reach agreement.

On August 30, 1994, OSM sent WVDEP a letter stating the tentative

resolutions of the issues listed in the April 1, 1994, letter. These

documents and a summary of the meetings are in Administrative Record

Nos. WV-916 through 933.

OSM announced receipt of the proposed amendment in the August 12,

1993, Federal Register (58 FR 42903) and invited public comment on its

adequacy. Following this initial comment period, WVDEP revised the

amendment on March 12, 1994, and September 1, 1994 (Administrative

Record Nos. WV-933 and WV-937). OSM reopened the comment period on

August 31, 1994, and September 29, 1994, and held public meetings in

Charleston, West Virginia on September 7, 1993, and October 27, 1994

(Administrative Record No. WV-958).

III. Public Comment Procedures

OSM is reopening the comment period on the West Virginia program

amendment to provide the public an opportunity to review OSM's draft

decision document and to comment prior to making a final decision. OSM

is seeking comments on whether the proposed amendment satisfies the

applicable program criteria of 30 CFR 732.15. Additional public comment

is requested on how OSM and WVDEP should address the following:

1. State records show that as of June 30, 1994, there was a backlog

of 243 bond forfeiture sites totalling 10,996 acres that had not been

completely reclaimed. Total liabilities of the Special Reclamation Fund

exceeded total assets by 22.2 million dollars. This estimate does not

include the cost of treating water at bond forfeiture sites. How can

this backlog in reclamation work be completed in a timely manner and

how should the Special Reclamation Fund be made financially sound?

2. The WVDEP identified 89 bond forfeiture sites that were

producing approximately 10 percent of the acid mine drainage in the

State. WVDEP estimated that it would cost two to four million dollars

annually to treat this water to meet Federal and State effluent

limitations and water quality standards. What is the best approach to

dealing with acid mine drainage from these and future bond forfeiture

sites?

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the OSM Charleston Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Meeting

Persons requesting to speak at the meeting should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. Submission of

written statements in advance of the meeting [[Page 26857]] will allow

OSM to study the remarks and ask questions of the speakers.

The meeting will continue on the specified date until all persons

scheduled to speak have been heard. Persons in the audience who have

not been scheduled to speak, and who wish to do so, will be heard

following those who have been scheduled. The meeting will end after all

persons who wish to speak have spoken.

Any disabled individual who has need for a special accommodation to

attend the public meeting should contact the individual listed under

FOR FURTHER INFORMATION CONTACT.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and programs and program amendments since

each such program is drafted and promulgated by a specific State, not

by OSM. Under sections 502 and 505 of SMCRA (30 U.S.C. 1253 and 1255)

and 30 CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed

State regulatory programs and program amendments submitted by the

States must be based solely on a determination of whether the submittal

is consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 12, 1995.

Richard J. Seibel,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 95-12362 Filed 5-18-95; 8:45 am]

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