West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-078-FOR]

West Virginia Regulatory Program

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

Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: OSM is approving the clarification of three final rule

decisions, the removal of a required amendment, and the vacating of its

retroactive approval of amendments 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 clarifications concern West Virginia statutes pertaining

to administrative appeals and the State Environmental Quality Board,

and the required amendment pertains to termination of jurisdiction.

These actions are intended to comply with a settlement agreement

reached in West Virginia Mining and Reclamation Association (WVMRA) v.

Babbitt, No. 2: 96-0371 (S.D. W.Va.).

EFFECTIVE DATE: July 14, 1998.

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director, Charleston Field Office, Telephone:

(304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

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. Submission of the 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 (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-

1 et seq.) and the West Virginia Surface Mining Reclamation Regulations

(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on

durable rock fills on August 16, 1995, (60 FR 42437-42443) and

approved, with exceptions, the proposed revisions on bonding on October

4, 1995, (60 FR 51900-51918). OSM approved, with exceptions, the

remaining amendments on February 21, 1996, (61 FR 6511-6537). See 30

CFR 948.15 for the provisions that were partially approved by OSM. See

30 CFR 948.16 for required amendments.

On April 18, 1996, the WVMRA, the West Virginia Coal Association,

and the Tri-State Coal Operators Association, Inc. filed an appeal,

pursuant to section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1),

challenging certain OSM decisions contained in the February 21, 1996,

Federal Register Notice, including the decision to make approval of the

amendment retroactive. (Administrative Record Number WV-1027). On

October 29, 1997, the parties reached a settlement agreement with

respect to six of the seven counts contained in the above referenced

case. (Administrative Record Number WV-1077). The other count,

pertaining to the use of passive treatment systems after final bond

release, was decided by the United States District Court for the

Southern District of West Virginia in OSM's favor. See WVMRA v.

Babbitt, No. 2: 96-0371 (S.D. W.Va. July 11, 1997) (Administrative

Record Number WV-1072). OSM proposed this rulemaking in order that it

may fulfill its obligations with respect to five of the six counts of

the appeal which are addressed by settlement agreement. The remaining

count addressed in the settlement agreement, pertaining to the

windrowing of materials on the downslope in steep slope areas, is the

subject of another proposed rulemaking, announced in the June 10, 1997,

Federal Register. See 62 FR 31543, 31545.

The proposed rulemaking was published in the February 23, 1998,

Federal Register (63 FR 8891). No one requested an opportunity to speak

at a public hearing, so none was held.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's

[[Page 37775]]

findings concerning the clarification of three final rule decisions,

the removal of a required amendment, and the vacating of its

retroactive approval of amendments to the West Virginia permanent

regulatory program.

1. The Clarifications

Sec. 22B-1-7(d) Administrative Appeals

As announced in the Federal Register on February 21, 1996 (61 FR at

6516, 6536), OSM did not approve a language at Sec. 22B-1-7(d)

concerning allowing temporary relief where the appellant demonstrates

that the executed decision appealed from will result in the appellant

suffering an ``unjust hardship.'' OSM stated that the provision was

disapproved because the exception is inconsistent with SMCRA section

514(d) and 525(c). Further, OSM required, at 30 CFR 948.16(nnn), that

Sec. 22B-1-7(d) be amended to be consistent with SMCRA sections 514(d)

and 525(c). In accordance with the settlement agreement in WVMRA v.

Babbitt, supra, OSM proposed to clarify its February 21, 1996, decision

by stating that Sec. 22B-1-7(d) is not approved only to the extent that

it includes unjust hardship as a criterion to support the granting of

temporary relief from an order or other decision issued under Chapter

22, Article 3 of the West Virginia Code, which is the West Virginia

counterpart to SMCRA. OSM also proposed to revise the required

amendment at 30 CFR 948.16(nnn) to require West Virginia to amend its

program to remove unjust hardship as a criterion to support the

granting of temporary relief from an order or other decision issued

under Chapter 22, Article 3 of the West Virginia Code. The Director now

adopts this proposal, and is, therefore, not approving Sec. 22B-1-7(d)

only to the extent that it includes unjust hardship as a criterion to

support the granting of temporary relief from an order or other

decision issued under Chapter 22, Article 3 of the West Virginia Code,

which is the West Virginia counterpart to SMCRA. The Director is also

revising the required amendment at 30 CFR 948.16(nnn) to require West

Virginia to amend its program to remove unjust hardship as a criterion

to support the granting of temporary relief from an order or other

decision issued under Chapter 22, Article 3 of the West Virginia Code.

Sec. 22B-1-7(h) Administrative Appeals

As announced in the Federal Register on February 21, 1996 (61 FR at

6516, 6536), OSM did not approve language at Sec. 22B-1-7(h) to the

extent that the provisions would allow the West Virginia Surface Mining

Board to decline to order an operator to treat or control discharges

due to economic considerations. In addition, OSM required, at 30 CFR

948.16(ooo), that the State further amend Sec. 22B-1-7(h) to be no less

stringent than SMCRA section 515(b)(10) and no less effective than the

Federal regulations at 30 CFR 816.42 by requiring that discharges be

controlled or treated without regard to economic feasibility. In

accordance with the settlement agreement in WVMR v. Babbitt, supra. OSM

proposed to clarify that Sec. 22B-1-7(h) is not approved only to the

extent that it references Article 3, Chapter 22 of the West Virginia

Code. OSM also proposed to revise the required amendment at 30 CFR

948.16(ooo) to require West Virginia to mend its program by removing

the reference, in Sec. 22B-1-7(h), to Article 3, Chapter 22. The

Director is now adopting this proposal and is, therefore, not approving

Sec. 22B-1-7(h) only to the extent that it references Article 3,

Chapter 22 of the West Virginia Code. The Director is also revising the

required amendment at 30 CFR 948.16(ooo)--to require West Virginia to

amend its program by removing the reference, in Sec. 22B-1-7(h), to

Article 3, Chapter 22.

Sec. 22B-3-4 Environmental Quality Board

As announced in the Federal Register on February 21, 1996 (61 FR at

6517), OSM approved the provisions at Sec. 22B-3-4 concerning the

Environmental Quality Board's rulemaking authority. Under the State's

S.B. 287, the Board is authorized, with certain restrictions, to

promulgate procedural rules granting site-specific variances for water

quality standards for coal remining operations. In approving the

provision, OSM also stated that any such procedural rules that grant

variances must be submitted to OMS for approval prior to their

implementation.

In accordance with the settlement agreement in WVMRA v. Babbitt,

supra, OSM proposed to clarify that it does not have approval authority

over rules developed by the Environmental Quality Board under the

authority of the Clean Water Act. The Director is now adopting this

proposal and finds, therefore, that the Environmental Quality Board is

not required to submit to OSM for approval procedural rules for the

implementation of site specific variances for water quality standards

for remining operations.

2. Amendment Findings Revisions

CSR 38-2-1.2(c)(1) Termination of Jurisdiction

As announced in the Federal Register on February 21, 1996 (61 FR at

6517, 6536), OSM found Sec. 38-2-1.2(c)(1) to be less effective than

the Federal regulations at 30 CFR 700.11(d)(1)(i) to the extent that

subsection (c)(1) does not require compliance with the Federal initial

program regulations at Subchapter B or the West Virginia permanent

regulatory program as a prerequisite to the termination of jurisdiction

over an initial program site. In addition, OSM required, at 30 CFR

948.16(ppp), that the State further amend subsection (c)(1) to require

compliance with the Federal initial program regulations at Subchapter B

or the West Virginia permanent regulatory program regulations as a

prerequisite to the termination of jurisdiction over an initial program

site.

By letter dated December 12, 1996 (Administrative Record Number WV-

1052), the West Virginia Division of Environmental Protection (WVDEP)

stated its commitment to require that initial program sites in West

Virginia meet the West Virginia program's permanent program

requirements as a precondition of the termination of regulatory

jurisdiction over such sites.

In recognition of the acknowledgment contained in the December 12,

1996, WVDEP letter, and in accordance with the settlement agreement in

WVMRA v. Babbitt, supra, OSM proposed to accept the WVDEP's December

12, 1996 letter as satisfying the requirements of 30 CFR

700.11(d)(1)(i), and proposed to delete the required amendment codified

at 30 CFR 948.16(ppp). The Director is now adopting this proposal and,

therefore, is accepting the WVDEP's December 12, 1996 letter as

satisfying the requirements of 30 CFR 700.11(d)(1)(i). The Director is

also removing the required amendment at 30 CFR 948.16(ppp).

3. Vacating Retroactive Approval of Amendments

In the February 21, 1996, Federal Register (61 FR 6533), OSM stated

that with respect to laws and regulations being approved in the notice,

the OSM was making the effective date of the approval retroactive to

the date upon which each provision took effect in West Virginia for

purposes of State law. However, as stated in the settlement agreement

in WVMRA v. Babbitt, supra, OSM has agreed to vacate the retroactive

effect of its approval of the program amendment which was the subject

of the February 21, 1996, Federal Register

[[Page 37776]]

notice. Therefore, OSM announced its intention to vacate the

retroactive approval of the amendments discussed and approved in the

February 21, 1996, Federal Register notice, 61 FR 6511, 6535. In

addition, OSM proposed to change the effective dates of all the

amendments approved in the February 21, 1996 notice to February 21,

1996.

Accordingly, the Director is hereby vacating the retroactive

approval of the amendments discussed and approved in the February 21,

1996, Federal Register notice 61 FR 6511, 6535. Furthermore, the

Director is changing the effective dates of all the amendments approved

in the February 21, 1996 notice to February 21, 1996.

The Director finds that the clarifications, amendment findings

revisions, and vacation of the retroactive approval of the previously

approved amendments do not render the West Virginia program less

effective, and are hereby approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),

comments were solicited from various interested Federal agencies. The

Department of the Army, U.S. Army Corps of Engineers responded and

stated that the proposed dispositions are satisfactory to the agency.

The U.S. Department of Labor, Mine Safety and Health Administration

(MSHA) responded and stated that the agency did not find any statements

that would conflict with MSHA's regulations or policies.

Public Comments

The following comments were received in response to the request for

public comments. The West Virginia Coal Association (WVCA) stated that

events have occurred since OSM's approval of the West Virginia Code at

Sec. 22-3-8(6)(B) concerning compliance with the State's workers'

compensation provisions at Sec. 23-2-5. Sec. 22-3-8(6)(B) states that

``[i]t is a requirement of this article [article 3, chapter 22, which

is the West Virginia counterpart to SMCRA] that each operator maintain

continued compliance with the provisions of section five, article two,

chapter twenty-three of this code [the requirement to pay workers'

compensation premiums] and provide proof of compliance to the director

on an annual basis.'' Specifically, the commenter stated that

interpretations of Sec. 22-3-8(6)(B) may improperly (1) create bond

forfeitures that cannot be reclaimed by the State's special reclamation

fund; (2) allow reclamation bonds to be used for purposes other than

reclamation of mining sites; and (3) allows citizens' suits that would

affect limits imposed under the State's workers' compensation laws.

Accordingly, the WVCA demanded that OSM either disapprove Sec. 22-3-

8(6)(B) or approve it expressly subject to the interpretation given to

the provision by the WVDEP. That interpretation is discussed below.

The WVDEP stated that its primary concern is that implementation of

Sec. 22-3-8(6)(B) not put any additional pressure on the bonding funds

available to WVDEP for completing reclamation. WVDEP stated that, while

it is more than willing to screen applicants for compliance with the

workers' compensation laws and thereafter take reasonable action to

ensure that they subsequently maintain compliance, the WVDEP cannot in

doing so jeopardize its primary purposes to ensure that the environment

is protected and reclamation is accomplished.

The WVDEP further stated that to ensure that Sec. 22-3-8(6)(B) is

not interpreted or applied in such a fashion as to jeopardize

environmental protection and the reclamation bonding program, WVDEP

issued a policy on June 7, 1995, concerning enforcement procedures for

companies in default with workers' compensation. By that policy, WVDEP

interprets Sec. 22-3-8(6)(B) to allow permittees to abate violations

issued for the workers' compensation defaults of their contractors

either by demonstrating that the contractor has returned to good

standing or by taking action to terminate the operator approval. WVDEP

stated that it recognizes that any interpretations of Sec. 22-3-8(6)(B)

which would impose obligations on permittees or operators for workers'

compensation obligations incurred prior to the effective date of the

statute could compromise the Special Reclamation Fund, which is used to

reclaim minesites for which the proceeds for forfeited performance

bonds are inadequate to achieve full reclamation.

To ensure an appropriate application of Sec. 22-3-8(6)(B) while

maintaining the consistency of the State surface mining program with

SMCRA, and in accordance with its June 7, 1995, policy, the WVDEP

interprets Sec. 22-3-8(6)(B) as:

(1) Prohibiting the issuance of both new permits and operator

approvals (known as operator reassignments in West Virginia) to those

applicants for which the Workers' Compensation Division advises have

not complied with Sec. 23-2-5;

(2) In cases involving permittees that utilize contractors,

enabling DEP to issue a notice of violation to a permittee for its

contractors' failure to comply with the workers' compensation

provisions of W. Va. Code Sec. 23-2-5, and allowing the permittee to

abate the violation either by demonstrating that the contractor has

returned a status of good standing with the Workers' Compensation

Division or by submitting the paperwork necessary to allow DEP to

rescind or terminate the operator approval (operator reassignment); and

(3) To the extent it imposes obligations on permittees and

operators to maintain compliance with W. Va. Code Sec. 23-2-5, it does

so only to the extent that the obligation to pay premiums, submit

reports, etc. first arose after the effective date of W. Va. Code

Sec. 22-3-8(6)(B).

The Director does not believe that the WVCA's comments are germane

to this rulemaking, since approval of Sec. 22-3-8(6)(A) and (B) was

previously announced in the February 21, 1996, Federal Register. 61 FR

6511. In his approval, the Director noted that ``as provided in

paragraph (h) [Sec. 22-3-8(6)], the State proposes to make compliance

with the Workers' Compensation Program a requirement of permit

approval.'' 61 FR at 6514. The basis for the Director's approval is not

changed in this rulemaking, since the substance of Sec. 22-3-8(6) is

not at issue here. The Director notes, however, that the effective date

of his approval of Sec. 22-3-8(6) is now changed to February 21, 1996.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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.). OSM

has determined that the proposed provision does not pertain to air and

water quality standards. Therefore, EPA concurrence is not required.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments from

the EPA on the proposed amendment. EPA did not provide any comments in

response to the request.

V. Director's Decision

Based on the findings above the Director is approving the

clarification of the three final rule decisions, the removal of the

required amendment, and the vacating of its February 21, 1996,

retroactive approval of

[[Page 37777]]

amendments to the West Virginia program.

The Federal regulations at 30 CFR 948 codifying decisions

concerning the West Virginia program are being amended to implement

this decision.

VI. 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 for

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: June 28, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 948--WEST VIRGINIA

1. The authority citation for part 948 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 948.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 948.15 Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final Citation/

date publication description

------------------------------------------------------------------------

* * * * *

February 23, 1998............... July 14, 1998..... WV Code Sections

22B-1-7(d), 7(h);

22B-3-4. WV

Regulations CSR

38-2-1.2(c)(1).

Vacating of

retroactive

approval

published on

February 21,

1996.

------------------------------------------------------------------------

3. Section 948.16 is amended by removing and reserving paragraph

(ppp), and by revising paragraphs (nnn) and (ooo) to read as follows:

Sec. 948.16 Required regulatory program amendments.

* * * * *

(nnn) By September 14, 1998, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption, to revise Section 22B-1-7(d) to

remove unjust hardship as a criterion to support the granting of

temporary relief from an order or other decision issued under Chapter

22, Article 3 of the West Virginia Code.

(ooo) By September 14, 1998, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption, to revise Section 22B-1-7(h) by

removing reference to Article 3, Chapter 22.

* * * * *

[FR Doc. 98-18738 Filed 7-13-98; 8:45 am]

BILLING CODE 4310-05-M