West Virginia Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]

West Virginia Permanent Regulatory Program

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

Interior.

ACTION: Proposed rule.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the West

Virginia permanent regulatory program (hereinafter referred to as the

West Virginia program) under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). The amendment revises both the West Virginia

Surface Mining Reclamation Regulations and the West Virginia Surface

Mining Code. The amendment mainly concerns changes to implement the

standards of the Federal Energy Policy Act of 1992. The amendment is

intended to revise the State program to be consistent with the

counterpart Federal provisions.

DATES: Written comments must be received on or before 4:00 p.m. on June

25, 1997.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Mr. Roger W. Calhoun, Director,

Charleston Field Office at the address listed below.

Copies of the proposed amendment, the West Virginia program, and

the administrative record on the West Virginia program 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 the OSM Charleston Field Office.

Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of

Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,

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

West Virginia Division of Environmental Protection, 10 McJunkin Road,

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

In addition, copies of the proposed amendment 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.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,

Charleston Field Office; Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

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 the approval can be found in the

January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent

actions concerning the West Virginia program and previous amendments

are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amemdment

By letter dated April 28, 1997 (Administrative Record Number WV-

1056), the West Virginia Division of

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Environmental Protection (WVDEP) submitted an amendment to its approved

permanent regulatory program pursuant to 30 CFR 732.17. By letter dated

May 14, 1997 (Administrative Record Number WV-1057), WVDEP submitted

some revisions to the original submittal. The amendment contains

revisions to the West Virginia Surface Mining Reclamation Regulations

(CSR Section 38-2 et seq.), and to Sec. 22-3 of the West Virginia

Surface Mining Code. The amendment mainly concerns changes to implement

the standards of the Federal Energy Policy Act of 1992. The amendment

is intended to revise the State program to be consistent with the

counterpart Federal provisions.

The proposed amendments are identified below. Minor wording changes

and other non-substantive changes are not identified.

1. Section 22-3 of the West Virginia Code

Sec. 22-3-3(u) The definition of ``surface mine'' is amended by

adding three examples which are not encompassed by the definition of

``surface mine.'' The three exceptions are: (1) Coal extraction

pursuant to a government financed reclamation contract; (2) coal

extraction authorized as an incidental part of development of land for

commercial, residential, industrial, or civic use; and the reclamation

of an abandoned or forfeited mine by a no cost reclamation contract.

Sec. 22-3-3(x) is added to define ``Unanticipated event or

condition.''

Sec. 22-3-3(y) is added to define ``Lands eligible for remining.''

Sec. 22-3-3(z) is added to define ``Replacement of water supply.''

Sec. 22-3-13(b)(20) concerning revegetation performance standards

is amended by adding that on lands eligible for remining, the

revegetation responsibility period will be not less than two growing

seasons.

Sec. 22-3-13(b)(22) is amended by deleting the words ``shall'' in

the last sentence and replacing that word with ``may.''

Sec. 22-3-13(c)(3) is amended by adding the postmining land use of

fish and wildlife habitat and recreation lands to the list of land uses

where the WVDEP Director may grant a permit under the previously

specified provisions.

Sec. 22-3-15(h) is added to provide that the WVDEP Director may

provide a compliance conference when requested by the permittee.

Sec. 22-3-17(b) is amended by adding a paragraph to the end of the

subsection concerning the reinstating, within one year, of a revoked

permit.

Sec. 22-3-18(c) is amended by deleting the word ``shall'' in two

locations and replacing those words with ``may.'' With these revisions,

a permit ``may'' not be issued until the applicant submits proof that a

violation is being corrected, and a permit ``may'' not be issued if the

applicant is found to be affiliated with a person who has had a permit

or bond revoked for failure to reclaim.

Sec. 22-3-18(f) is added to provide that the prohibition of

subsection 22-3-18(c) may not apply to a permit application due to any

violation resulting from an unanticipated event or condition at a

surface coal mine eligible for remaining under a permit held by the

applicant.

Sec. 22-3-28 The title of this provision is amended from special

``permits'' to special ``authorization'' for reclamation of existing

abandoned coal processing waste piles. In addition, the following is

added to the title: coal extraction as an incidental part of

development of land for commercial, residential, industrial, or civic;

no cost reclamation contract. In addition, throughout this provision,

the term ``permit'' is replaced with ``authorization.''

Sec. 22-3-28(b) is amended in the last sentence by changing the

validity of a special authorization from ``until work permitted is

completed'' to ``for two years.'' Sec. 22-3-28(c) is amended by

changing ``shall'' to ``may.'' Under this change, anyone who has been

issued a special authorization ``may'' not be issued an additional

special authorization unless satisfactory evidence has been submitted

to the WVDEP Director.

Sec. 22-3-28(d) is amended by deleting the words ``special permit''

and replacing them with the words ``reclamation contract.'' In

addition, the second from the last sentence is being deleted. That

sentence reads: ``The director shall promulgate specific rules for such

operations:''.

Sec. 22-3-28(e) This new subsection is added to provide that no

person may engage in coal extraction pursuant to a government financed

reclamation contract without a valid surface mining permit unless such

person affirmatively demonstrates that he is eligible to secure special

authorization to engage in a government financed reclamation contract

authorizing incidental and necessary coal extraction. The new

subsection further specifies the criteria under which this provision

may be implemented.

2. CSR 38-2 of the West Virginia Surface Mining Reclamation Regulations

38-2-2.4 The definition of ``acid-producing coal seam'' is amended

by deleting coal seams commonly associated with acid-producing

minerals. The last sentence is amended by deleting reference to the

multiple seams whose names were deleted and to refer instead to single

seams.

38-2-2.120 is amended by changing the phrase ``land or water

resources'' to read ``land and water resources.''

38-2-3.2.e is amended by deleting the last sentence. The deleted

language requires that permits that are being renewed or significantly

revised and permit applications which are being significantly revised

must be advertised in accordance with paragraph 38-2-3.2.b and

paragraph (6), subsection (a), section 9 of the Act.

38-2-3.12 concerning subsidence control plans is amended to require

that the survey map required by subsection 3.12.a.1 identify the

location and type of water supplies. Language has been added to require

the survey to identify whether subsidence could contaminate, diminish

or interrupt water supplies. Language is also added to authorize, upon

the submittal of justifying technical analysis, of an angle of draw

other than the specified 30 degrees.

38-2-3.12.a.2 is added to require surveys of water supplies and

structures that could be damaged within the applicable angle of draw.

Two provisors are added that would allow an exemption or postponement

of the pre-subsidence survey requirements for areas of extraction of

less than or equal to 60 percent.

In addition, a provision is added to state that if the permittee is

denied access to the land or property for the purpose of conducting the

pre-subsidence survey, the permittee will notify the owner, in writing,

that no presumption of causation will exist.

Survey reports shall be signed by the person or persons who conduct

the survey, and a copy shall be provided to the WVDEP Director.

Finally, the meaning of the term ``non-commercial building'' is

clarified.

38-2-3.14.b.7 and 14.b.8 are deleted. These provisions require a

PHC and a hydrologic reclamation plan.

38-2-3.14.b.12.E is amended by adding that ``if requested by the

Director'' a stability analysis of the existing abandoned coal

processing waste pile is required.

38-2-3.14.b.13.B. The existing language is deleted and replaced in

its entirety.

This new language provides the requirement and criteria for

diverting surface water around or over the refuse disposal piles.

38-2-3.29 concerning incidental boundary revisions (IBR) is amended

by adding language to authorize that IBR's

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also could include areas where the WVDEP Director determines that

limited coal removal on areas immediately adjacent to the existing

permit is the only practical alternative to recovery of unanticipated

reserves or necessary to enhance reclamation efforts or environmental

protection.

38-2-3.35 is added to specify the standards for grade and linear

measurements.

38-2-5.5.c is amended to add that for permanent impoundments, the

landowner sign a request that the structure be left for recreational or

other purposes.

Language is deleted that requires that the operator also sign the

request, and that the request assert that the landowner assumes

liability for the structure and will provide for sound future

maintenance of the structure.

38-2-6.5.a is amended by adding language to allow for blasting on

Sunday if the WVDEP Director determines that the blasting is necessary

and there has been an opportunity for a public hearing.

38-2-8.2.e is added to encourage and specify the criteria for

timber windrowing to promote the enhancement of food, shelter, and

habitat for wildlife.

38-2-9.2.i.2 is amended by adding one sentence to specify that an

alternate maximum or minimum soil pH may be approved based on the

optimum pH for the revegetated species.

38-2-9.3.h.1 is deleted and replaced in its entirity. The revised

provision changes the minimum tree stocking rate from 600 trees per

acre to no less than 450 stems per acre.

38-2-9.3.h.2 is deleted. This provision specified a minimum

percentage of commercial tree species. The criteria for commercial

species is now in 38-2-9.3.h.1.

38-2-9.3.h.2 (formerly h.3) is being revised to change the survival

rate from 450 trees to 300 trees per acre, or the rate specified in the

forest management plan, whichever is greater.

38-2-14.11.e concerning inactive status is amended to delete the

three-year limit on inactive status for preparation plants and load-out

facilities. Added language authorizes the WVDEP Director to grant

inactive status for a period not to exceed ten years, provided the

facilities are maintained in such condition that operations could be

resumed within 60 days.

38-2-14.11.f is added to authorize the WVDEP Director to grant

inactive status for a period not to exceed current permit term plus

five years for underground mining operations provided the operation is

maintained in such condition that the operations could be resumed

within 60 days and openings are protected from unauthorized entry.

38-2-14.11.g is added to authorize the WVDEP Director to grant

inactive status for a period not to exceed ten years for coal refuse

sites provided the completed lifts of the coal refuse site are regraded

(which may include topsoiling), seeded and drainage control, where

possible, has been installed in accordance with the terms and

conditions of the permit.

38-2-14.11.h is added to provide that the WVDEP Director may grant

inactive status for a permit for a longer term than set forth in

14.11.e. and f. Provided, the permittee shall furnish and maintain bond

that is equal to the estimated actual reclamation cost, as determined

by the director, The director shall review the estimated actual

reclamation cost at least every two and one-half years.

38-2-14.15.c, concerning reclaimed areas, is amended to delete

language concerning Phase I bond release and semi-permanent ancillary

facilities. Language is added to provide that regraded areas must also

be stabilized. Also added is a list that identifies areas and criteria

that shall not be included in the calculation of disturbed area:

14.15.c.1. Semi-permanent ancillary facilities; 14.15.c.2. Areas within

the confines of excess spoil disposal fills which are under

construction; 14.15.c.3. Areas containing 30 aggregate acres or less

which have been cleared and grubbed and have the appropriate drainage

controls installed and certified; 14.15.c.4. Areas that have been

cleared and grubbed with exceed the thirty aggregate acres and/or those

which will not be included in the operational area within six months;

14.15.c.5. Areas which have been backfilled and graded with material

placed in a stable, controlled manner which will not subsequently be

moved to final grade, mechanically stabilized, and had drainage

controls installed.

38-2-14.15.d. This provision is amended by adding a final sentence

to provide that the WVDEP Director may consider contemporaneous

reclamation plans on multiple permitted areas with adjoining boundaries

where contemporaneous reclamation is practiced on a total operation

basis.

38-2-16.2.c is amended by adding an explanation of the term

``material'' damage. ``Material'' means functional impairment of

surface lands, features, structures or facilities; any physical change

that has a significant adverse impact on the affected land's capability

to support or reasonably foreseeable uses or causes significant loss in

production or income; or any significant change in the condition,

appearance or utility of any structure from its pre-subsidence

condition.

38-2-16.2.c.2 is amended by adding a final sentence to provide that

the provision applies only to subsidence related damage caused by

underground mining activities conducted after October 24, 1992.

38-2-16.2.c.3 is added to provide that if alleged subsidence damage

occurs to protected structures as a result of earth movement within the

area in which a pre-subsidence structural survey is required, a

rebuttable presumption exists that the underground mining operation

caused the damage.

38-2-16.2.c.3.A is added to provide that if the permittee was

denied access to conduct a pre-subsidence survey, no presumption of

causation will exist.

38-2-16-2.c.3.B. This provision is added to provide that the

presumption will be rebutted if, for example, the evidence establishes

that: the damage predated the mining in question; the damage was

proximately caused by some other factors or was not proximately caused

by subsidence; or the damage occurred outside the surface area within

which subsidence was actually caused by the mining in question.

38-2-16.2.c.3.C. This provision is added to provide that in any

determination whether damage to protected structures was caused by

subsidence from underground mining, all relevant and reasonably

available information will be considered by the director.

38-2-16.2.c.4. This provision is added to provide that when

subsidence related material damage occurs to lands, structures, or

water supply, and if the director issues violation(s), the director may

extend the 90-day abatement period to complete repairs, but shall not

exceed one year from date of violation notice. Provided, however, the

permittee demonstrates, in writing, that it would be unreasonable to

complete repairs within the 90-day abatement period. If extended beyond

90 days, as part of the remedial measures, the permittee shall post an

escrow bond to cover the estimated costs of repairs.

38-2-20.1.e is added to provide that the permittee may request an

on-site compliance conference, and out the requirements related to such

a conference. Neither the holding of a compliance conference nor any

opinion given by an authorized representative of the director at a

conference shall affect the following:

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38-2-20.1.e.1. Any rights or obligations of the director or by the

permittee with respect to any inspection, notice of violation, or

cessation order, whether prior to or subsequent to the compliance

conference; or

38-2-20.1.e.2. The validity of any notice of violation or cessation

order issued with any condition or practice reviewed at the compliance

conference.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comments on the proposed amendment submitted by the State of

West Virginia to its permanent regulatory program. Specifically, OSM is

seeking comments on the revision to the State's Code and regulations

that were submitted on April 28, 1997, and amended on May 14, 1997.

Comments should address whether the proposed amendment satisfies the

applicable program approval 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 issue

proposed in this notice 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 Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by close of

business on June 25, 1997. If no one requests an opportunity to comment

at a public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to comment, and who wish to do so, will be

heard following those scheduled. The hearing will end after all persons

scheduled to comment and persons present in the audience who wish to

comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the Charleston Field Office by

contacting the person listed under FOR FURTHER INFORMATION CONTACT. All

such meetings will be open to the public and, if possible, notices of

meetings will be posted in advance at the locations listed under

ADDRESSES. A written summary of each public meeting will be made part

of the Administrative Record.

Any disabled individual who has need for a special accommodation to

attend a public hearing 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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year or any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 30, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 97-15008 Filed 6-9-97; 8:45 am]

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