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; reopening of public comment period and

opportunity for a public hearing.

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SUMMARY: OSM is reopening the public comment period on certain parts 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 was submitted on April 28, 1997 (with revisions submitted on

May 14, 1997) and amends both the West Virginia Surface Mining

Reclamation Regulations and the West Virginia Surface Mining Code. The

comment period is being reopened specifically on the amendments to the

definition of surface mining, special authorizations, fish and wildlife

as a postmining land use for mountaintop removal operations, removal of

abandoned coal refuse piles, remining, and no-cost reclamation. The

amendments are intended to revise the State program to be consistent

with the counterpart Federal provisions and to improve the

effectiveness of the West Virginia program.

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

August 24, 1998. If requested, a public hearing on the proposed

amendments will be held at 1:00 p.m. on August 18, 1998. Requests to

present oral testimony at the hearing must be received on or before

4:00 p.m. on August 10, 1998.

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 amendments, 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, 048.15, and 948.16.

II. Discussion of the Proposed Amendment

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

1056), the West Virginia Division of Environmental Protection (WVDEP)

submitted an amendment to its approved permanent regulatory program

pursuant to 30 CFR 732.17. Some revisions of the original amendments

were submitted by letter dated May 14, 1997 (Administrative Record

Number WV-1057). The amendment revises the West Virginia Surface Mining

Reclamation Regulations (CSR Section 38-2 et seq.), and Sec. 22-3 of

the West Virginia Surface Mining Code. The amendment concerns changes

to implement the standards of the Federal Energy Policy Act of 1992,

and other changes desired by the State.

During OSM's review of the proposed amendments the State submitted

a new amendment to its Surface Mining Reclamation Regulations at CSR

38-2 by letter dated may 11, 1998 (Administrative Record Number WV

1086). The public comment period on the new amendment is open until

July 15, 1998 (63 FR 32632; June 15, 1998). Certain of the proposed

regulations in the new amendment are intended to implement some of the

statutes which OSM is reviewing under the current amendment. Therefore,

OSM is reopening the public comment period on the specific statutes

identified below for which the State has recently submitted a new

amendment containing implementing regulations. In addition, OSM

received a request from a commenter that the public comment period be

reopened on the proposed amendments at Section 22-3-13(c)(3) concerning

the proposed addition of fish and wildlife habitat and recreation lands

as an approvable postmining land use for mountaintop removal

operations.

The Director is reopening the public comment period on the

following Sections:

22-3-3(u) concerning the definition of ``surface mine,'' ``surface

mining'' or ``surface mining operations;''

22-3-3(y) concerning the definition of ``lands eligible for

remining;''

22-3-13(b)(20) concerning the revegetation responsibility period

for lands eligible for remining;

22-3-13(c) concerning the proposed addition of fish and wildlife

habitat and recreation lands as an approvable postmining land use for

mountaintop removal operations; and

22-3-28 concerning special authorization for reclamation of

existing abandoned coal processing waste piles; coal extraction

pursuant to a government financed reclamation contract; coal extraction

as an incidental part of development of land for commercial,

residential, industrial, or civic uses; and no cost reclamation

contracts.

[[Page 39791]]

III. Public Comment Procedures

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

seeking comments on the proposed amendments identified above. Comments

should address whether the amendments identified above satisfy the

applicable program approval criteria of 30 CFR 732.15. Commenters may

refer to the relevant proposed implementing regulations submitted by

the State on May 11, 1998, to support their comments. 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 August 10, 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 specific 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 schedules. 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

amendments 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.

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: July 17, 1998.

Allen D. Klein,

Regional Director Appalachian Regional Coordinating Center.

[FR Doc. 98-19792 Filed 7-23-98; 8:45 am]

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