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.

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SUMMARY: OSM is reopening the public comment period on part 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 an amendment to allow

fish and wildlife habitat and recreation lands as a postmining land use

for mountaintop removal operations. The amendment is intended to

improve the effectiveness of the West Virginia program.

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

January 15, 1999.

ADDRESSES: Written comments 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, 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 amendment that is the subject of this

notice are available for inspection during regular

[[Page 68222]]

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 April 28, 1997 (Administrative Record Number WV-

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

submitted amendments to its approved permanent regulatory program

pursuant to 30 CFR 732.17. Some revisions to the original amendment

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

Number WV-1057). The amendments revise the West Virginia Surface Mining

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

the West Virginia Surface Mining Code. The amendments concern changes

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

and other changes desired by the State.

Concurrent with the Director's review of the proposed amendments,

OSM's Charleston Field Office conducted an evaluation and prepared an

oversight report on portions of the West Virginia surface mining

program. The oversight report is focused, in part, on postmining land

uses pertaining to mountaintop removal operations. OSM will be

requesting public comment on the oversight report, and expects that

some of the comments received concerning the oversight report will

address a proposed amendment at section 22-3-13(c)(3) of the West

Virginia Surface Mining Code, concerning mountaintop removal

operations. Therefore, OSM is reopening the public comment period on

the specific proposed amendment identified below.

Section 22-3-13(c)(3) of the West Virginia Surface Mining Code.

This provision is amended to allow the approval of permits involving a

variance from restoring approximate original contour (AOC) for

mountaintop removal operations when the postmining land use includes

fish and wildlife habitat and recreation lands.

III. Public Comment Procedures

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

seeking comments on the proposed amendment identified above. Comments

should address whether the amendment identified above 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.

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: December 2, 1998.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-32746 Filed 12-9-98; 8:45 am]

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