West Virginia Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-080-FOR]

West Virginia Permanent Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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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 consists of the revisions to the

West Virginia Surface Mining Reclamation Regulations. The amendments

are intended to improve the operational efficiency of the West Virginia

program.

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

15, 1998. If requested, a public hearing on the proposed amendments

will be held at 1:00 p.m. on July 10, 1998. Requests to present oral

testimony at the hearing must be received on or before 4:00 p.m. on

June 30, 1998.

[[Page 32633]]

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 West Virginia program, the program amendment decision

that is the subject of this notice, 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 changes 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 amendments that are the subject of this

notice 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 Amendment

By letter dated May 11, 1998 (Administrative Record Number WV

1086), the West Virginia Division of Environmental Protection (WVDEP)

submitted an amendment to its approved permanent regulatory program

pursuant to the Federal regulations at 30 CFR 732.17(b). The recent

West Virginia Legislative session amended CSR 38-2 of the State's

Surface Mining Reclamation Regulations, and the West Virginia Governor

signed the amendments on April 12, 1998.

The proposed amendments are identified below.

1. CSR 38-2-2 Definitions

Subsection 2.25 The definition of ``Coal Remining Operation'' is

amended to mean a coal mining operation on lands which would be

eligible for expenditures under section four, article two of chapter

twenty-two.

Subsection 2.102 The definition of ``Remined Area'' is amended to

mean only that area of any coal remining operation.

The WVDEP explained that these changes were done to correspond with

the Energy Policy Act of 1992, Public Law 102-846. the WVDEP stated

that the changes are consistent with changes to Chapter 22, Article 3

of the Code of West Virginia, which were made during the last

legislative session.

2. CSR 38-2-3.14 Removal of Abandoned Coal Refuse Disposal Piles

Subsection 3.14.a is amended by deleting the terms ``special

permit'' and in their place adding the term ``reclamation contract.''

Also, the words ``permit application'' are deleted and replaced by the

word ``request.''

Subsection 3.14.b is amended by deleting the phrase ``an

application for a special permit,'' and adding in its place the phrase

``a request for a reclamation contract.''

Subsection 3.14.b.1 is amended by excluding subsections 3.1.c., d.,

k., n., and o. from the requirement that all information required by

subsection 3.1 should be included in a request for a reclamation

contract under subsection 3.14.b. Subsection 3.14.b.2 is amended by

reducing the comment period from 30 days to 10 days.

Subsection 3.14.b.3 is amended by deleting the phrase ``and where

applicable subsection 3.3 of the regulations.''

Subsection 3.14.b.4.E is amended by deleting the existing language

and adding in its place the words, ``Permits or approvals as necessary

from the appropriate environmental agencies or other agencies.''

Subsection 3.14.b.7 is deleted.

Subsections 3.14.b.8 through 3.14.b.15 have been renumbered as

3.14.b.7 through 3.14.b.14.

Subsection 3.14.d is amended by deleting the existing language and

adding in its place the words, ``Insurance and filing fee in accordance

with subsection b. Of Section 28 of the Act.''

Subsection 3.14.e is amended to read, ``Removal operations

permitted under this subsection shall be subject to paragraph 1.,

subsection 22.5 of this rule and all other applicable performance

standards of the Act and the reclamation contract.'' Subsection 3.14.f

is added to read as follows: ``All persons conducting removal of

abandoned coal disposal piles under a reclamation contract shall have

on site, a copy of the written approval for such activities issued by

the Director.''

In its submittal, the WVDEP stated that changes to Section 3 will

allow the reclamation of coal refuse sites by a reclamation contract

that normally does not require any state expenditure. The WVDEP stated

that it believes that totally removing a refuse pile constitutes

reclamation. Further the WVDEP stated that the amendments are

consistent with the change to Chapter 22, Article 3 Section 28 of the

Code of West Virginia which occurred in the last legislative session.

3. CSR 38-2-3.32 Findings--Permit Issuance

Subsection 3.32.d.12 is amended by deleting the reference to

subsection 14.16, and adding in its place a reference to subsection 24.

In addition, the words ``and prior to August 3, 1977'' are deleted and

replaced by the words, ``would be eligible for expenditures under

Section 4, Article 2 of Chapter 22.

Subsection 3.32.g is added to read as follows. ``The prohibition of

subsection c. shall not apply to a permit application due to any

violation resulting from an unanticipated event or condition at a

surface mine eligible for remining held by the applicant.''

In its submittal, the WVDEP stated that this change is due to a new

Federal definition of ``remining'' which basically states that any site

eligible for abandoned mined lands funding is also eligible for

remining.

4. CSR 18-2-14.14.a.1 Disposal of Excess Spoil

This subsection is amended by adding language to allow excess spoil

to be deposited on abandoned mine lands and/or forfeited mine lands

under a

[[Page 32634]]

reclamation contract pursuant to Section 28 of the Act and this rule.

The new language further provides that it is the permittee's

responsibility to obtain right of entry and any necessary approvals

from the appropriate environmental agencies or other agencies.

The WVDEP stated that these changes will allow the director to

issue no-cost reclamation contracts to a permittee to reclaim abandoned

and forfeited sites.

5. CSR 38-2-14.16 Is Being Moved to New Section CSR 38-2-24

6. CSR 38-2-14.17 Is Redesignated as CSR 38-2-14.16

7. CSR 38-2-14-18 Is Redesignated as CSR 38-2-14.17

8. CSR 38-1-14.19 Is Redesignated as CSR 38-2-14.18

Old subsection 14.19.d is deleted because it conflicts with CSR 38-

2-8.2.e that was added during the last legislative session.

9. CSR 38-2-22.5.1 Removal of Abandoned Coal Refuse Piles

Subsection 22.51 is amended by deleting the words ``special

permit'' and adding in their place the words ``reclamation contract.''

The WVDEP explained that the changes to Section 3 will allow the

reclamation of coal refuse sites by a reclamation contract that

normally does not require any state expenditure.

10. CSR 38-2-23 Special Authorization for Coal Extraction as an

Incidental Part of Development of Land for Commercial, Residential, or

Civic Use

This entire section is new language. This section would allow

special authorization for coal extraction as an incidental part of

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

use. The section contains provisions for applicant information, site

development and sampling information; provisions for approval of Notice

of Intent for coal extraction as an incidental part of development of

land for commercial, residential, or civic use; performance standards;

expiration of a notice of intent coal extraction as an incidental part

of development; escrow release; notice on site; and public records.

The WVDEP explained that the new language is intended to implement

new code provisions that allow the director to give special

authorization for coal extraction as an incidental part of development

of land for commercial, residential, industrial, or civic use.

11. CSR 38-2-24 Performance Standards Applicable Only to Remining

Operations

This entire section is new. However, subsection 24.1 was previously

14.16; subsection 24.2.a was previously 14.16.m; subsection 24.3 was

previously 14.16.n; subsection 24.2.b is new language; and subsection

24.4 is new language.

Subsection 24.1 provides for backfilling, remining, and grading of

previously mined areas. Subsection 24.2 provides for revegetation of

coal remining operations. Subsection 24.3 provides for water quality of

coal remining operations. Subsection 24.4 provides the requirements for

release of bonds for coal remining operations.

The WVDEP stated that subsection 24.2.b is due to a new Federal

remining regulation which basically states that successful revegetation

shall be for a period of not less than two growing seasons. Subsection

24.4 will allow for release of the land reclamation bond if the post-

remining water quality discharging from the site is equal to or better

than pre-remining water quality.

III. Public Comment Procedures

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

seeking comments on the proposed amendments to the West Virginia

program that were submitted on May 11, 1998. Comments should address

whether the proposed amendments satisfy the applicable program approval

criteria of 30 CFR 732.15. If the amendments are deemed adequate, they

will become part of the West Virginia program.

Written Comments

Written comments should be specific, pertain only to the issues

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 testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by the close of

business on June 30, 1998. If no one requests an opportunity to testify

at the public hearing by that date, 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 remarks and appropriate questions.

The public hearing will continue on the specified date until all

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

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

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

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

testify have been heard.

Public Meeting

If only one person or group requests to testify 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

clarification, removal of the required amendment, or change in the

effective dates of the approval may request a meeting at the OSM

Charleston Field Office listed under ADDRESSES 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

a part of 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 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.

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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

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. 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 counterpart Federal regulations.

Unfunded Mandates

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

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: June 4, 1998.

Tim L. Dieringer,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-15761 Filed 6-12-98; 8:45 am]

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