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: Proposed rule; reopening and extension of public comment

period.

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SUMMARY: OSM is announcing the receipt of additional revisions to the

West Virginia permanent regulatory

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program (hereinafter referred to as the West Virginia program) under

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

additional revisions pertain to a previously proposed amendment (WV-

074) to West Virginia's Surface Mining Reclamation Regulations. The

proposed revisions concern the definition of chemical treatment,

ownership and control files, roads, as-built designs, noncoal mine

waste, durable rock fills, small operator assistance and other matters.

The amendment is intended to improve operational efficiency and revise

the West Virginia program to be consistent with the corresponding

Federal regulations and SMCRA.

DATES: Written comments must be received on or before 4 p.m. on July

20, 1995.

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, the West Virginia program, and

the administrative record are available for public review and copying

at the addresses below during normal business hours, Monday through

Friday, excluding holidays. Each requester may receive one free copy of

the proposed amendment 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 amendments 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, PO 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, PO Box 506, Logan, West Virginia

25601, Telephone: (304) 752-2851

FOR FURTHER INFORMATION CONTACT:

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

Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background

SMCRA was passed in 1977 to address 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 its

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 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.

On January 21, 1981, the Secretary of the Interior conditionally

approved the West Virginia program. 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

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 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, September 29, 1994, and May 19, 1995, and held public

meetings in Charleston, West Virginia on September 7, 1993, October 27,

1994, and May 30, 1995.

OSM and WVDEP held a telephone conference on January 18, 1995, to

discuss the States revisions to the program amendment which were

submitted on September 1, 1994, and announced for public comment in the

September 29, 1994, Federal Register (59 FR 49620). This meeting was

followed-up by a letter on February 15, 1995, which identified

provisions in the September 1, 1994, submittal where OSM either needed

further clarification or where OSM believed the proposal was less

effective than the Federal rules.

The WVDEP responded by revising and resubmitting the September 1,

1994, revisions on May 8, 1995 and May 16, 1995, (Administrative Record

Nos. 979A and 979B). These revisions were passed by the West Virginia

Legislature as House Bill--2134. Also included were

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new State initiatives found in Senate Bills--287 and 350, and House

Bill--2523.

This notice requests public comment on the revised program

revisions and new initiatives submitted to OSM by the WVDEP on May 8,

1995 and May 16, 1995. These revisions include the following:

1. CSR 38-2-2.92 Definitions

The WVDEP proposes to define ``chemical treatment'' as it applies

to the prohibition of bond release where water treatment is necessary

to bring point source discharges into compliance with effluent

standards.

2. CSR 38-2-3.1(o) Ownership and Control File

The WVDEP proposes to add a provision which will allow permittee,

upon request and with the approval of the Director, to submit and

maintain a centralized ownership and control file. Any permit

application which references an approved centralized ownership and

control file may be determined to be complete and accurate for all

permitting actions including revisions, transfers, assignments and

sales.

3. CSR 38-2-3.26 Ownership and Control Changes

The WVDEP proposes to add provisions governing the reporting of

name changes, replacements, and additions to the ownership and control

information for any surface mining operation or permittee. The

permittee or operator is required to notify the Director if no changes

have occurred.

4. CSR 38-2-3.27(a) Permit Renewals

The WVDEP proposes to add a provision which will allow the Director

to waive the requirements for permit renewal if the permittee certifies

in writing that all coal extraction is completed, that all backfilling

and regrading will be completed within 60 days prior to the expiration

date of the permit and that an application for Phase I bond release

will be filed prior to the expiration date of the permit. Failure to

complete backfilling and regrading within 60 days prior to the

expiration date of the permit will nullify the waiver.

5. CSR 38-2-3.34 (b), (g) Improvidently Issued Permits

The WVDEP proposes to amend paragraph (b) by inserting the phrase

``in paragraph (b) of subsection 3.32 of this section'' to clarify that

if a permit is issued at a time in which the applicant was in violation

of environmental laws that the permit was improperly issued and must be

withdrawn. Paragraph (g) is being revised to clarify that permit

issuance includes permit revisions for ownership and control purposes.

6. CSR 38-2-4.4 Infrequently Used Access Roads

The WVDEP proposes to add a provision requiring infrequently used

access roads to be designed to ensure environmental protection

appropriate for their planned duration and use, and to be constructed

in accordance with current prudent engineering practices and any

necessary design criteria established by the Director. A statement has

been added to clarify that prospecting roads are to be designed,

constructed, maintained, and reclaimed in accordance with subsection

13.6 which governs prospecting roads. Cross references have also been

revised.

7. CSR 38-2-4.7(a)(1) Performance Standards for Roads

The WVDEP proposes to add a new provision requiring that each road

be designed, located, constructed, maintained, and reclaimed so as to

minimize downstream sedimentation and flooding.

8. CSR 38-2-4.12 Certification

The WVDEP proposes to add a provision requiring that, where the

certification statement for a primary road indicates a change from

design standards or construction requirements in the approved permit,

such changes must be documented in as-built plans and submitted as a

permit revision.

9. CSR 38-2-13.6 (a)(7), (f)(6) Prospecting Roads

WVDEP proposes to correct a typographical error at paragraph (a)(7)

and to revise paragraph (f)(6) by requiring topsoil removal and

replacement in accordance with section 14.3.

10. CSR 38-2-14.14(g)(8) Durable Rock Fills

The WVDEP proposes to amend its rules to require that surface

runoff from areas above and adjacent to durable rock fills be diverted

into channels which have bee designed using the best current technology

available to safely pass the peak runoff from a 100 year, 24-hour

precipitation event. The channel must be designed and constructed to

ensure stability of the fill, control erosion, and minimize

infiltration into the fill.

11. CSR 38-2-14.15(M) Coal Processing Waste Disposal

The WVDEP proposes to add provisions governing the placement of

coal processing waste in the backfill. Disposal facilities must be

designed using current prudent engineering practices and must meet any

design criteria established by the regulatory authority. Designs must

be certified by a qualified registered professional engineer. Under the

proposal, no coal processing waste that contains acid-producing or

toxic-forming material may be placed in the backfill.

12. CSR 38-2-14.19 Disposal of Noncoal Waste

WVDEP proposes to add provisions to regulate the disposal of

noncoal waste such as grease, lubricants, garbage, abandoned machinery,

lumber and other materials generated during mining activities. Under

the proposal, final disposal of noncoal waste will be in accordance

with a permit issued pursuant to Chapter 22, Article 15 of the Code of

West Virginia (Solid Waste Management Act). Timber from clearing and

grubbing operations may be wind-rowed at the projected toe of the

outslope.

13. CSR 38-2-17 Small Operator Assistance

WVDEP proposes to increase the production limit of those operators

eligible for assistance under the Small Operator Assistance Program

(SOAP) from 100,000 to 300,000 tons and to provide for payment of

additional services as authorized under the Energy Policy Act of 1992.

WVDEP is also proposing to provide for interstate coordination and

exchange of information collected under SOAP.

14. CSR 38-2-17.3(b) Eligibility for Assistance

WVDEP proposes to use the total attributed annual production in

determining eligibility for assistance under SOAP. Production from

operations where the applicant owns more than a 10 percent interest

will be attributed to the applicant.

15. CSR 38-2-17.4 Request for Assistance

WVDEP proposes to require SOAP applicants to provide information on

forms provided by the Director of WVDEP.

16. CSR 38-2-17.7 (a)(4) Liability of SOAP Operators

The WVDEP proposes to clarify that SOAP applicants will be liable

for the cost of program services performed if

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actual and attributed production for all locations exceed 300,000 tons

during the 12 month period immediately following permit issuance.

17. CSR 38-2C-4 Training of Blasters

WVDEP proposes to add a provision that would allow applicants for

certification or recertification to complete a self-study course in

lieu of the existing training program. Self-study materials would be

provided by the WVDEP.

18 CSR 38-2C-10.1 Violations by a Certified Blaster

WVDEP proposes to remove language authorizing the Director to issue

a cessation order and/or take other action as provided by the WVSCMRA

Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA

Sec. 22-3-1. The Director retains his authority to issue a notice of

violation.

19. CSR 38-2C-11 Penalties

WVDEP proposes to revise its rules to provide for a hearing before

the Director to show cause why a blasters certification should not be

suspended.

20. CSR 38-D-4.4(b) Reclamation Objectives and Priorities

WVDEP proposes to clarify its objectives and priorities for

abandoned mine lands reclamation projects by indicating the provision

applies to ``past' coal mining practices which may or may not

constitute an extreme danger.

21. CSR 38-2D-6.3(a) Acceptance of Gifts of Land

WVDEP proposes to remove the requirement that the director accept

gifts of land in accordance with Department of Justice procedures for

the acquisition of real property.

22. CSR 38-2D-8.7(a) Grant Application Procedures

WVDEP proposes to remove provisions which describe the procedures

for submitting a grant application to OSM for the reclamation of

abandoned mine lands.

23. WV Sec. 22B-3-4(c) Environmental Quality Board Rulemaking

Authority

WVDEP proposes to authorize the Environmental Quality Board to

grant variances to in-stream water quality standards for coal remining

operations. The standards established in the variance would exist for

the term of the NPDES permit. Under the proposal, the Board will

promulgate procedural rules on granting site-specific coal remining

variances. At a minimum, the procedures would include a description of

the data and information required from an applicant for a variance,

criteria employed by the board in its decision, and provisions for

public comment and hearing. The proposed rule gives direction as to

when a variance may be granted.

WVDEP gave notice to OSM that WVSCMRA Sec. 22-3-8-6(B) was being

revised to require that an operator provide the Director with proof of

payment of workers compensation premiums on an annual basis, and that

Sec. 22-1-6(D)(7) was being revised to authorize the Director to employ

in-house council to perform all legal services. The director finds that

these revisions do not require an amendment to the West Virginia State

Program pursuant to 30 CFR 732.17(c).

III. Public Comment Procedures

OSM is extending the comment period to provide the public an

opportunity to comment on the proposed revisions in the State program.

In accordance with 30 CFR 732.17(h), OSM is seeking comments on whether

the proposed amendment satisfies the applicable program criteria of 30

CFR 732.15. If the amendment is deemed adequate, it will become part of

the West Virginia program.

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.

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 program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

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

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

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

been met.

National Environmental Policy Act

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: June 28, 1995.

Ronald C. Recker,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 95-16378 Filed 7-3-95; 8:45 am]

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