West Virginia Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

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 proposing to clarify three final rule decisions, to

remove a required amendment, and to vacate 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. The

proposed 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.).

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

March 25, 1998. If requested, a public hearing on the proposed

amendments will be held at 1:00 p.m. on March 20, 1998. Requests to

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

4:00 p.m. on March 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 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.

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

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). This rulemaking is proposed in order that OSM

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

[[Page 8892]]

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, 32545.

1. Proposed Clarifications

Section 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 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 is proposing 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 is also proposing 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.

Section 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 provision 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 WVMRA v. Babbitt,

supra, OSM is proposing to clarify that Sec. 22B-1-7(h) is approved

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

Virginia Code. OSM is also proposing to revise 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.

Section 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 OSM for approval prior to their

implementation.

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

supra, OSM is proposing 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. Therefore, OSM is stating 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. Proposed 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 is proposing to accept the WVDEP December

12, 1996 letter as satisfying the requirements of 30 CFR

700.11(d)(1)(i), and is proposing to delete the required amendment

codified at 30 CFR 948.16(ppp).

3. Vacating Retroactive Approval of Amendments

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

6533), OSM stated that with respect to laws and regulations being

approved in the notice, that 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

notice. Therefore, OSM is hereby announcing 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 is proposing to change the effective dates of all the

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

1996.

III. Public Comment Procedures

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

seeking comments on the proposed clarifications, the proposed removal

of the required amendment codified at 39 CFR 948.16(ppp), and the

proposed change of the effective dates of the amendments currently

codified at 30 CFR 948.15(p)(1) to February 21, 1996. Comments should

address whether the proposed clarifications, the proposed deletion of

the required amendment at 30 CFR 948.16(ppp), and the change of the

effective dates of the amendments codified at 30 CFR 948.15(p)(1) to

February 21, 1996, satisfy the applicable program approval criteria of

30 CFR 732.15. If the clarifications, deletion of the required

amendment, and change of the effective date of approval are deemed

adequate, they will become part of the West Virginia program.

[[Page 8893]]

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 March 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 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.

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 the 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: February 12, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-4471 Filed 2-20-98; 8:45 am]

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