West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]

West Virginia Regulatory Program

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

Interior.

ACTION: Final rule; decision on amendment.

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SUMMARY: OSM is announcing that it is not approving an amendment to the

West Virginia permanent regulatory program under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The amendment would have

revised the West Virginia Surface Coal Mining and Reclamation Act, and

concerns fish and wildlife habitat and recreation lands as a postmining

land use for mountaintop removal operations with variances from

approximate original contour.

EFFECTIVE DATE: May 14, 1999.

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

II. Submission of the Amendment

III. Director's Finding

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. You can find background information

on the West Virginia program, including the Secretary's findings, the

disposition of comments, and the conditions of the approval in the

January 21, 1981, Federal Register (46 FR 5915-5956). You can find

later actions concerning the West Virginia program and previous

amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the 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. By letter dated May 14, 1997 (Administrative

Record Number WV-1057), WVDEP submitted some revisions to the original

submittal. The amendment contained revisions to section 38-2-1 et seq.

of the West Virginia Surface Mining Reclamation Regulations [Code of

State Regulations (CSR)] and to section 22-3-1 et seq. of the West

Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). The

amendment mainly consisted of changes to implement the

[[Page 26289]]

standards of the Federal Energy Policy Act of 1992, and was intended to

revise the State program to be consistent with the counterpart Federal

provisions.

An announcement concerning the initial amendment was published in

the June 10, 1997, Federal Register (62 FR 31543-31546). A correction

notice was published on June 23, 1997 (62 FR 33785), which clarified

that the public comment period closed on July 10, 1997. No one

requested an opportunity to speak at a public hearing, so none was

held.

We published our approval, with certain exceptions, of the West

Virginia amendment in the Federal Register on February 9, 1999 (64 FR

6201-6218). In that rule, we deferred a decision on an amendment to

section 22-3-13(c)(3) of the WVSCMRA. Section 22-3-13(c)(3) was 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.

At the same time we were reviewing the amendment to section 22-3-

13(c)(3), our Charleston Field Office conducted an evaluation and

prepared a draft oversight report on portions of the West Virginia

program. The draft report was focused, in part, on postmining land uses

pertaining to mountaintop mining operations. We requested comments on

the draft report, and at the same time we reopened the public comment

period on the amendment to section 22-3-13(c)(3) because we expected

that some of the comments received concerning the oversight report

would address the proposed amendment to section 22-3-13(c)(3) (December

10, 1998, 63 FR 68221). The comment period on the draft oversight

report closed on February 12, 1999. Therefore, we deferred a decision

on section 22-3-13(c)(3) until after we could review the public

comments that were received in response to the evaluation report.

III. Director's Finding

Following, according to SMCRA and the Federal regulations at 30 CFR

732.15 and 732.17, is our finding concerning the proposed amendment.

The West Virginia legislature amended section 22-3-13(c)(3) of the

WVSCMRA 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.''

Mountaintop removal operations seeking a variance from the

requirement to restore the affected land to AOC must comply with

section 515(c)(3) of SMCRA, which states that:

In cases where an industrial, commercial, agricultural,

residential or public facility (including recreational facilities)

use is proposed or the postmining use of the affected land, the

regulatory authority may grant a permit for a surface mining

operation of the nature described in subsection (c)(2) [concerning

mountaintop removal operations] where--

(A) After consultation with the appropriate land use planning

agencies, if any, the proposed postmining land use is deemed to

constitute an equal or better economic or public use of the affected

land, as compared with premining use;

(B) The applicant presents specific plans for the proposed

postmining land use and appropriate assurances that such use will

be--

(i) Compatible with adjacent land uses;

(ii) Obtainable according to data regarding expected need and

market;

(iii) Assured of investment in necessary public facilities;

(iv) Supported by commitments from public agencies where

appropriate;

(v) Practicable with respect to private financial capability for

completion of the proposed use;

(vi) Planned pursuant to a schedule attached to the reclamation

plan so as to integrate the mining operation and reclamation with

the postmining land use; and

(vii) Designed by a registered engineer in conformance with

professional standards established to assure the stability,

drainage, and configuration necessary for the intended use of the

site.

The Federal regulations at 30 CFR 785.14(c)(1) concerning

mountaintop removal mining mirror the SMCRA provisions at section

515(c)(3) that are quoted above. Neither of these Federal provisions

authorizes ``fish and wildlife habitat and recreation lands'' as a

postmining land use that qualifies for the AOC variance needed by

mountaintop removal operations.

The land use category of ``fish and wildlife habitat'' is defined

at 30 CFR 701.5 under the definition of ``land use'' as land

``dedicated wholly or partially to the production, protection or

management of species of fish or wildlife.'' A variance from achieving

AOC is simply not needed for the management of species of fish or

wildlife, because fish and wildlife habitats do not require flat or

rolling terrain, which is created by mountaintop removal operations, in

order to be successful. (For an analogous discussion that concludes

that silviculture is not a postmining land use authorized for

mountaintop removal operations requesting an AOC variance, see the

preamble to the March 13, 1979 Federal Register document, 44 FR 14901,

15288-15289). Therefore, the land use of ``fish and wildlife habitat''

is not authorized as a postmining land use that qualifies for an AOC

variance for mountaintop removal operations.

If we interpret the phrase ``fish and wildlife and recreation

lands'' in accordance with its plain meaning, we conclude that it

constitutes one postmining land use, with both ``fish and wildlife''

and ``recreation lands'' components. Given this construction, the

entire phrase should be disapproved, because operations proposing fish

and wildlife postmining land uses do not qualify for AOC variances

under SMCRA. However, one could conceivably construe the phrase to

create two separate, additional postmining land uses which would

qualify for the AOC variance.

OSM has reason to believe that the State intends this term to

include two separate uses. This interpretation is based on the fact

that the State further defines ``fish and wildlife habitat and

recreation lands'' at CSR 38-2-7.2.k as ``wetlands, fish and wildlife

habitat, and areas managed primarily for fish and wildlife or

recreation'' (emphasis added). Therefore, we have chosen to discuss the

``recreation lands'' use separately, in order to ascertain whether we

could reach a different decision. For the reasons discussed below,

however, we find we must still disapprove the proposed amendment in its

entirety.

The land use category of ``recreation lands'' that is proposed by

West Virginia is not specifically defined in the Federal regulations.

However, the land use category of ``recreation'' is defined at 30 CFR

701.5 under the definition of ``land use.'' ``Recreation'' land use

means ``land used for public or private leisure-time activities,

including developed recreation facilities such as parks, camps, and

amusement areas, as well as areas for less intensive uses such as

hiking, canoeing, and other undeveloped recreational uses.'' SMCRA at

section 515(c)(3) and the implementing Federal regulations at 30 CFR

785.14(c)(1) specifically authorize ``public facilities (including

recreation facilities)'' as a postmining land use which qualifies for

the variance from AOC for mountaintop removal mining. The term ``public

facilities (including recreation facilities)'' bears some resemblance

to, but is not the same as, the Federal regulatory definition of the

``recreation'' land use. To qualify for the variance, the recreation

facilities must be ``developed,'' and must also be ``public'' in

nature. Specifically, SMCRA's use of the term ``public

[[Page 26290]]

facility (including recreational facilities) use'at section 515(c)(3)

means that, unlike the definition of ``recreation'' at 30 CFR 701.5

under ``land use,'' the use is limited to applications of public use.

That is, a purely private postmining land use does not qualify under

SMCRA for a mountaintop removal AOC variance.

In addition, SMCRA at section 515(c)(3) specifically uses the term

``facilities.'' The term ``facilities'' means that various structures

that support the public or recreational use of the land are required to

be developed. For example, the postmining land use of ``public facility

(including recreational facilities)'' requires a structure or

development of some sort created by man that the public is able to use.

A ``public facility'' might include developments such as governmental

buildings, prisons, schools, reservoirs, or airports. ``Recreational

facilities'' might include developed recreational facilities such as

parks, camps, and amusement areas, as well as areas developed for uses

such as hiking, canoeing, and other less intensive recreational uses.

The designs of some of these recreational facilities, including the

less intensive recreational facilities (for example, hiking and camping

recreational facilities), could incorporate fish and wildlife habitat

as an integral component of the recreation facility. However, even the

less intensive recreation facilities would require structures or

developments to support the public uses. For example, less intensive

recreation facilities such as those for hiking and camping may require

access roads, parking lots, rest rooms, developed trails, boat ramps,

camping shelters, etc.

The term ``recreation lands'' proposed by the State may not be

inconsistent with the Federal term ``public facility (including

recreational facilities) use'' as discussed above. However, the West

Virginia program at section 22-3-13(c)(3) of the WVSCMRA currently

authorizes a postmining land use of ``public use'' as a postmining land

use for an AOC variance for mountaintop removal operations. The State's

authorization of a ``public use'' postmining land use is West

Virginia's counterpart to the ``public facility (including recreational

facilities)'' land use which qualifies for an AOC variance pursuant to

section 515(c)(3) of SMCRA. That is, the State term ``public use''

already authorizes a postmining land use of ``public facility

(including recreational facilities)'' for an AOC variance for

mountaintop removal operations. Therefore, the proposed postmining land

use of ``recreation lands'' is not necessary, as the currently approved

term ``public use'' already authorizes ``public facility (including

recreational facilities).'' When OSM initially approved West Virginia's

term ``public use'' (46 FR 5915, January 21, 1981) it did so without

discussion. If OSM had intended its approval of the term ``public use''

to mean something other than the Federal term ``public facility

(including recreation facilities)'' it would have discussed its

rationale in the preamble. Since such a discussion is lacking, we

conclude that when it approved West Virginia's term ``public use,'' OSM

interpreted that term to be equivalent to the Federal term ``public

facility (including recreation facilities).'' However, we also

recognize that the difference in terms has led to confusion concerning

the meaning of the State's term ``public use.'' Therefore, we are

requiring that the term ``public use'' at section 22-3-13(c)(3) be

amended to include the term ``facility'' and to further clarify that

the State term will be interpreted the same as ``public facility

(including recreation facilities) use'' at section 515(c)(3).

Based on the discussion above, we are not approving the proposed

language ``or fish and wildlife habitat and recreation lands.'' The

addition of the term ``fish and wildlife habitat'' would render the

West Virginia program less stringent than SMCRA, which does not

authorize ``fish and wildlife habitat'' as a postmining land use that

qualifies for an AOC variance for mountaintop removal operations. The

term ``recreation lands'' need not be added to the West Virginia

program, because the currently approved ``public use'' variance

corresponds to the Federal authorization of ``public facility

(including recreational facilities) use.'' Moreover, some of the public

facilities or recreational facilities which could be approved under

section 22-3-13(c)(3) as ``public uses'' could incorporate ``fish and

wildlife habitat'' as an integral component of the design of the public

or recreation facility. Therefore, OSM is requiring that section 22-3-

13(c)(3) be amended to remove the phrase ``or fish and wildlife habitat

and recreation lands.'' Finally, as stated above, we are requiring that

the term ``public use'' at section 22-3-13(c)(3) be amended to include

the term ``facility'' and further clarify that the term will be

interpreted the same as ``public facility (including recreation

facilities) use'' at SMCRA section 515(c)(3).

IV. Summary and Disposition of Comments

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the West Virginia program. Except for the U.S.

Environmental Protection Agency as discussed below, no other Federal

agencies commented on the amendment relating to ``fish and wildlife

habitat and recreation lands.''

Public Comments

We solicited public comments on several different occasions. The

following is a summary and disposition of the public comments received

on the amendment.

1. General Comments Against Approval

Comments: Several commenters made general statements against

approval of the proposed amendment. One commenter suggested that we

defer our decision concerning the proposed postmining land use until

after the Environmental Protection Agency (EPA) completes its

environmental impact statement on mountaintop removal operations. The

commenter also urged OSM to not allow it as an approved postmining land

use during the interim period.

One commenter said that fish and wildlife habitat has several

faults. On the plus side, however, allowing the creation of wetlands on

mined areas was a step in a positive direction. But, the commenter

asserted, fish and wildlife habitat has been used which included non

native, invasive plants.

One commenter stated that fish and wildlife postmining land use

should not be approved, because the language and legislative history of

SMCRA demonstrate that Congress intended to restrict permissible

postmining land uses to socially beneficial and developed uses, not

passive and undeveloped uses such as ``fish and wildlife habitat and

recreation lands.'' The commenter asserted that the ``fish and wildlife

habitat and recreation lands'' use is not socially beneficial; it does

not require any development; it does not require any public facilities;

and it is not a use which otherwise might not be available.

Further, one of these commenters did not support West Virginia's

contention, via the amendment, that ``fish and wildlife habitat and

recreation lands'' is an appropriate postmining land use.

Another commenter stated that allowance of ill-defined land uses

such as ``fish and wildlife habitat,'' rather

[[Page 26291]]

than conformance to the specific requirements of the law, results in

improper off-site disposal as a matter of course, rather than as an

exception to the rule of on-bench retention.

Response: In response to these comments, and for the reasons

discussed in the Finding above, we have not approved this amendment.

2. Fish and Wildlife Habitat

Comments: A commenter supported the amendment and stated that fish

and wildlife habitat clearly should qualify as a recreational use and

consequently, a public use. From an environmental standpoint, the

commenter stated, you couldn't have a better postmining land use for

the environment. Though not one of the four listed postmining land uses

in SMCRA, the commenter noted, there clearly isn't any prohibition of

this as a valid postmining land use, nor are there any environmentally

sound arguments for precluding it as a postmining land use. The

commenter further stated that the State of Kentucky has had a

postmining land use of ``fish and wildlife'' as part of its regulatory

program since 1991.

Response: In response, we disagree with the statement that there

clearly is not any prohibition of ``fish and wildlife habitat'' as a

valid postmining land use. The fact that ``fish and wildlife habitat''

is not listed at SMCRA section 515(c)(3) as an allowable postmining

land use for mountaintop-removal operations is a clear prohibition of

``fish and wildlife habitat'' as a postmining land use under SMCRA.

While we have no doubt about the value of ``fish and wildlife habitat''

in the natural environment, and as a postmining land use in a mining

situation where the site is to be restored to approximate original

contour, ``fish and wildlife habitat'' is not an approvable postmining

land use for mountaintop removal operations with variances from AOC

under SMCRA section 515(c)(3). Finally, Kentucky has not had an

approved postmining land use of ``fish and wildlife habitat'' as part

of its regulatory program since 1991. Rather, the Kentucky program was

authorizing ``fish and wildlife habitat'' as a postmining land use for

mountaintop-removal operations with AOC variances under an internal

memorandum dated May 29, 1991, that was never approved by OSM. The

State no longer implements that memorandum.

3. Public Use Versus Public Facility Use

Comments: A few commenters noted that the West Virginia program

authorizes ``public use'' as a valid postmining land use for an AOC

variance for mountaintop removal operations, whereas SMCRA authorizes

``public facility use.'' One commenter said that the West Virginia

program must be brought into conformity with SMCRA. Another commenter

said that ``any public use'' is too broad a definition and provides a

loophole for mining companies. Still another commenter stated that the

rational response would be to clarify this matter through a policy

statement, with a provision to allow maximum input from stakeholders.

A commenter asserted that while the word ``facility'' may mean that

some type of structure or appurtenance must accompany the public use,

this is not the only permissible interpretation of the term ``public

facility.'' For example, the commenter asserted, land that is reclaimed

to support the propagation and preservation of wildlife, or leisure

activities such as hiking, hunting or camping, are public facilities.

Similarly, dedicated open space used as a park is a public facility

even in the absence of buildings or other structures. The commenter

also stated that the ``public'character of the land use should not be

interpreted to be unduly narrow. The commenter stated that OSM has

previously addressed the question of the public nature of a land use

for purposes of SMCRA's land use requirements. The commenter stated

that OSM declined to adopt a regulatory definition of the term ``public

use'' because public use ``overlaps more than one of the existing land

use categories'' 48 FR 39893, September 1, 1983. In that notice, OSM

stated that a use is public ``if it involves benefit, utility, or

advantage to the public generally or any part of the public, as

distinguished from benefitting an individual or a few specific

individuals.'' The commenter stated that land that is reclaimed to

support the propagation and preservation of wildlife is a public

facility. Finally, the commenter stated that whether or not these uses

would require buildings or other appurtenances is a question that would

be evaluated in the context of the specific plans for the proposed

postmining use.

Response: In response, the one commenter is saying that all land

uses have a public utility and that, for example, land that is

reclaimed to support the propagation and preservation of wildlife is a

public facility. We believe that such an interpretation only serves to

render meaningless the term ``public facility (including recreational

facilities) use.'' Although the commenter believes that the public

character of the land use should not be interpreted too narrowly, we

believe that to be meaningful, the term ``public facility (including

recreational facilities) use'' must not be interpreted too broadly.

Were it otherwise, instead of stating ``public facility (including

recreational facilities) use'' SMCRA could merely state ``public use,''

or even ``fish and wildlife habitat use.'' Instead, SMCRA excludes

``fish and wildlife habitat'' from the list of approvable postmining

land uses at section 515(c)(3), and it specifically provides for

``public facility (including recreational facilities) use.''

SMCRA uses the term ``facility'' rather than the more generic term

``public use'' in the approvable postmining land use of ``public

facility (including recreational facilities) use.'' We interpret the

term ``public facility (including recreational facilities) use'' to

require some sort of structure or man-made development that actually

supports or facilitates the public use. Such facilities could include

community centers, buildings and runways as at an airport,

amphitheatres or parking lots, rest rooms, developed hiking trails,

boat ramps, camping shelters, or shooting ranges, etc. at less

intensive public recreational facilities.

Finally, we agree that the specific plans for each proposed

postmining land use must be assessed on a case-by-case basis. However,

as stated above, we believe that SMCRA requires that the various

structures or developments discussed above be required for a postmining

land use of ``public facility (including recreational facilities).''

Comment: Another commenter contends that the term ``public use'' in

the West Virginia program was approved by OSM and is not limited to

``public recreation facilities.'' The commenter also asserted that

because the State's regulations require that proposed postmining land

uses of fish and wildlife habitat and recreation lands include a

planting plan prepared or approved by a state mining biologist, whose

job it is to encourage the propagation of ``desirable'' species, these

plans necessarily confer public benefit.

Response: In response, we are aware of the confusion that exists

concerning the interpretation of West Virginia's term ``public use''

and the term ``public facility (including recreational facilities)'' in

SMCRA at section 515(c)(3). As a consequence, and as discussed in the

Finding above, we are requiring that the State further amend its

program to clarify that its term ``public use'' means the same as the

term ``public facility (including recreational facilities)'' at SMCRA

section 515(c)(3). To be no less stringent

[[Page 26292]]

than SMCRA at section 515(c)(3), the West Virginia term ``public use''

at section 22-3-13(c)(3) of WVSCMRA must be equivalent to the Federal

term ``public facility (including recreational facilities) use.''

4. Fish and Wildlife Habitat and Public Use

Comments: One commenter supported the amendment and said that fish

and wildlife habitat is a recreational use and consequently a public

use. The commenter stated that ``public use'' as a postmining land use

has been part of the approved West Virginia program since 1981. If

public access is available to the site, the commenter asserted, then it

would appear that the conditions of this land use category have been

met.

Another commenter agrees and stated that OSM issued a Federal

permit in West Virginia effective August 23, 1993, that granted an AOC

variance for ``fish and wildlife habitat.'' According to the commenter,

the variance was apparently approved based on the rationale that the

postmining fish and wildlife habitat development constituted a public

use.

Response: In response, we disagree with the commenters that assert

that ``fish and wildlife habitat'' is a recreational use and

consequently a public use. The ``fish and wildlife habitat'' postmining

land use is defined at 30 CFR 701.5 under the definition of ``land

use.'' It is defined as land dedicated wholly or partially, to the

production, protection, or management of species of fish or wildlife.

Sites that are not open to the public at all can meet this definition.

Therefore, ``fish and wildlife habitat'' by itself cannot be considered

a public use.

The second commenter is referring to Permit Number OC-1

(subsequently converted to OC-2). OSM approved a postmining land use of

``public use'' for this permit. The permit was for a 20-acre surface

mining operation at R.D. Bailey Lake in Mingo County. R.D. Bailey Lake

is managed by the U.S. Army Corps of Engineers (COE). The COE specified

that the reclaimed surface, especially the side facing the lake, dam

and visitor center, should have some minor degree of slope to make it

appear natural in relation to the general topography of the ridge

areas. This was specified so that as viewed from the nearby public use

areas of the lake the reclaimed area would be aesthetically pleasing.

The COE agreed that at least three acres of the reclaimed site would be

for water fowl habitat, which would consist of two acres of flat

surface and a one-acre depression ranging from one to two feet in

depth. All surface areas accessible by mowing equipment had to be

graded and free of rock, boulders and other debris to facilitate mowing

and other wildlife management activities. OSM agrees that fish and

wildlife habitat was a component of the postmining land use. However,

and more importantly, because the site was accessible to the public,

managed by a governmental agency, and developed for public use, OSM was

able to approve the permit with an AOC variance in accordance with the

approved State program.

Comment: Another commenter disagrees with the proposed amendment,

and stated that the State has not demonstrated that a proposed

postmining land use of ``fish and wildlife habitat and recreation

lands'' is consistent with SMCRA. The commenter asserted that the

State's justification of the proposed amendment, which states that

``[b]ecause of the feral nature of wildlife the proposed program

amendment conforms with CFR 824.11(a)(3) by providing enhanced

recreational benefits in the form of additional wildlife for public

hunting and observation,'' has no meaning. The commenter said that a

public use is one that is available to the public permanently. The

commenter stated that Congress did not intend to allow passive

``recreational areas'' which are maintained and controlled by private

companies, instead of public authorities. Hence, the public would have

to own the land for it to qualify as a public use. The commenter also

stated that a public use must allow unimpeded public access, must be a

higher and better use than the pre-mining use, and the permit

application must demonstrate that there is a need for the use and that

financing is available for public projects such as golf courses, public

parks, or swimming pools with public facilities. The public facilities,

the commenter asserted, would also have to be owned by the public;

otherwise the public nature of the enterprise could be revoked at any

time after mining is complete.

Response: In response, we agree with the commenter that ``fish and

wildlife habitat'' is not, by itself, a public use. However, we

disagree with the commenter's assertion that to qualify as a public

facility the facility must be owned by the public. SMCRA section

515(c)(3) does not require public ownership to qualify as a ``public

facility (including recreational facilities)'' postmining land use.

Neither does SMCRA section 515(c)(3) specify that an approved

postmining land use be continued permanently, or that the use be higher

and better than the premining use. Rather, section 515(c)(3)(A)

requires that the proposed postmining land use be an equal or better

economic or public use, as compared with the premining use. SMCRA

section 515(c)(3) does, however, require that the reclaimed site be

capable of supporting the postmining land use in accordance with the

requirements at subsection 515(c)(3). SMCRA also specifies minimum

requirements such as consultation with land use planning agencies, and

specific plans and assurances that the proposed postmining land use

will be compatible with adjacent land uses; obtainable according to

data regarding expected need and market; assured of investment in

necessary public facilities; supported by commitments from public

agencies where appropriate; practicable with respect to private

financial capability for completion of the proposed use; and planned

pursuant to a schedule attached to the reclamation plan so as to

integrate the mining operation and reclamation with the postmining land

use.

Comment: One commenter noted that SMCRA at section 515(c)(3) does

not specifically authorize ``fish and wildlife habitat'' as a

postmining land use for an AOC variance for mountaintop-removal

operations. However, the commenter asserted, this is no impediment to

those land uses falling within one of the general categories of land

uses listed in the statute. This view is supported by another commenter

who said that there is nothing which precludes a ``fish and wildlife

habitat and recreation'' postmining land use from serving as the basis

of an AOC variance ``so long as it can be viewed as a subset of one of

the list of land uses set out in W.Va. Code Sec. 22-3-13(c)(3).''

Moreover, the commenter said, the list of uses set forth in the

Federal rules is not exhaustive or exclusive, but simply a ``minimum

list that would meet the requirements of the Act.'' 44 FR at 14933.

Response: In response, and as discussed above in the Finding, the

design of a ``public facility (including recreational facilities) use''

could include areas that are designed as fish and wildlife habitat.

This is not to say that ``fish and wildlife habitat'' is the primary

postmining land use. Rather, fish and wildlife habitat may be a

component of the design of a ``public facility (including recreational

facilities) use.'' And, it is the ``public facility (including

recreational facilities) use'' that must be the focus of the

applicant's demonstration, and the regulatory authority's determination

that the proposed postmining land use meets the requirements for an AOC

variance.

[[Page 26293]]

Comment: The commenter further stated that the specific land uses

of ``fish and wildlife habitat and recreation lands'' comfortably fit

within the general land use category of public facility/public use as

set forth in both section 515(c)(3) and 515(e)(2) of SMCRA.

Response: In response, we disagree with this comment. As discussed

above in the Finding, the proposed postmining land use of ``fish and

wildlife habitat and recreation lands'' is not approvable under SMCRA

section 515(c)(3). ``Fish and wildlife habitat'' is not a listed

postmining land use at section 515(c)(3) of SMCRA and, therefore,

cannot be approved. In addition, the State's proposed term ``recreation

lands'' is not approved because, to the extent it refers to public

recreational facilities, it is redundant with the term ``public use''

that is already part of the approved West Virginia program. To the

extent that it creates a more expansive category, which would include

undeveloped recreational areas or purely private developed recreational

facilities, it is inconsistent with section 515(c)(3) of SMCRA. As

discussed in the Finding, we have concluded that when OSM approved the

term ``public use'' in the State program, it did so with the

interpretation that the term ``public use'' is no less stringent than

the Federal standard, which allows only a ``public facility (including

recreational facilities) use.''

Comment: The commenter also asserted that there are public benefits

from fish and wildlife habitat regardless of whether general access is

provided.

Response: In response, and as discussed in the Finding above,

``fish and wildlife habitat'' is not an approvable postmining land use

for mountaintop-removal operations with AOC variances. We believe that

the approvable postmining land use of ``public facility (including

recreation facility) use'' clearly contains a ``public'' component, and

a requirement that the public's use of the land be facilitated. We

believe that the term ``facility'' requires the inclusion of a

structure or other man-made developments such as parking lots, rest

rooms, or shelters that would facilitate the use of the land by the

public. Some public facilities, such as water treatment plants,

transmission lines, and solid waste disposal facilities that directly

benefit the public, may not allow public access. However, recreational

areas must be available for public access in order for the public to be

able to use and benefit from them, and that access should be

facilitated by the inclusion of necessary structures or developments.

5. Other Comments

Comment: One commenter suggested that fish and wildlife habitat

should be accepted as valid. The commenter said this would be

especially beneficial if that use could be used in conjunction with a

postmining use of reservation for future economic development. In such

a manner, the commenter said, the land could be reclaimed for wildlife

habitat and used as such indefinitely or until such time as a need

develops for some other qualified project.

Response: In response, and as noted in the Finding above, fish and

wildlife habitat cannot be approved as a postmining land use under

section 515(c)(3) of SMCRA. While SMCRA does not specify exactly when a

postmining must actually be implemented, it does specify that the land

must be capable of supporting the postmining land use, and also

specifies the minimum criteria which must be met to qualify for a

variance. SMCRA section 515(c)(3)(vi) provides that the proposed use

must be planned pursuant to a schedule attached to the reclamation plan

so as to integrate the mining operation and reclamation with the

postmining land use. In addition, the Federal regulations at 30 CFR

785.14(c)(1)(ii), governing AOC variances for mountaintop-removal

operations, specify that compliance with the Federal regulations at 30

CFR 816/817.133(a) through (c), concerning postmining land use, is

required. 30 CFR 816/817.133(c)(3)(iii) provides that the proposed

postmining land use will not involve unreasonable delay in

implementation.

Comment: A commenter stated that SMCRA does not require the land to

be actually put to the use proposed, but only that it be capable of

supporting the postmining land use proposed. As the Supreme Court held,

``[t]he Act imposes no restrictions on post reclamation use of mined

lands.'' Hodel v. Indiana, 452 U.S. 314, 330 n. 18 (1981).

Response: In response, we note that SMCRA at section 515(c)(2)

specifies that the applicant for an AOC variance for mountaintop

removal operations must create a postmining land that is ``capable of

supporting postmining uses in accordance with the requirements of this

subsection.'' However, SMCRA at section 515(c)(3) also provides that an

applicant must present specific plans and appropriate assurances that

the proposed postmining land use will be compatible with adjacent land

uses; obtainable according to data regarding expected need and market;

assured of investment in necessary public facilities; supported by

commitments from public agencies where appropriate; practicable with

respect to private financial capability for completion of the proposed

use; and planned pursuant to a schedule attached to the reclamation

plan so as to integrate the mining operation and reclamation with the

postmining land use. These specific plans and assurances should be

sufficiently detailed to allow the regulatory authority to determine if

there is a reasonable likelihood for achievement of the proposed

postmining land use, and the use will not be impractical or

unreasonable, or involve unreasonable delay in implementation.

Comment: A commenter also stated, in comments directed against

approval of the amendment, that if the proposed amendment is approved,

regulators must approve postmining land use of any mountaintop removal

permit application that proposes to flatten mountains and fill streams

as long as that application proposes a ``fish and wildlife habitat and

recreation lands'' variance.

Response: In response, and as explained in the Finding above, we

are not approving the proposed amendment. In addition, we disagree that

the regulatory authority must approve a variance from the requirements

of AOC just because a permittee proposes one of the approvable

postmining land uses listed at section 515(c)(3). SMCRA at section

515(c)(3) specifies that a regulatory authority ``may'' approve such a

request if it finds that the permittee also demonstrates compliance

with all the other criteria specified at section 515(c)(3). If all of

the requirements of section 515(c)(3) of SMCRA are not met, the

regulatory authority must reject the variance request.

Environmental Protection Agency (EPA)

According 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.). We

requested EPA concurrence on June 6, 1997 (Administrative Record Number

WV-1059) and again on March 19, 1999 (Administrative Record Number WV-

1118). In accordance with 30 CFR 732.17(h)(11)(i), we also solicited

comments from the EPA on the proposed amendment on June 5, 1997.

(Administrative Record Number WV-1060)

[[Page 26294]]

EPA responded to our June 5 and 6, 1997, requests for comments and

concurrence by letter dated October 23, 1998 (Administrative Record

Number WV-1108). EPA expressed concerns about the proposed provision at

section 22-3-13(c)(3) of the WVSCMRA that would allow an exemption for

mountaintop removal operations from restoring mined land to its

approximate original contour (AOC) if the post-mining land use is fish

and wildlife habitat and recreation lands. EPA stated that the proposed

revision would allow excess overburden to be disposed in valley fills

rather than on top of the mined area to achieve AOC. A use designation

as fish and wildlife habitat and recreation lands would not appear to

be necessary if the goal was just to provide wildlife habitat and

recreation land, rather than avoid the expense of placing overburden

back on top of mined areas. It is very likely, EPA stated, that

wildlife habitat areas would occur naturally on post-mining lands,

including areas restored to the approximate original contour, as a

result of appropriate reclamation without any special use designation.

In addition, it appears that the proposed designation as wildlife

habitat and recreation lands is not intended for lands to be used by

the public since an exemption for ``public use'' is already in the

State statute. EPA said that its concern is that disposal of excess

overburden in valley fills may harm aquatic life in headwater streams

and possibly downstream reaches.

EPA noted OSM's intention to defer action on proposed revisions to

section 22-3-13(c)(3) of the WVSCMRA regarding an exemption to

approximate original contour for mountaintop removal operations until a

later date, and that the comment period would be reopened on this

provision. With this understanding, the EPA concurred with the other

proposed WVDEP revisions under the condition that the EPA be given an

opportunity to concur or not concur with the proposed amendment to

section 22-3-13(c)(3) of the WVSCMRA.

By letter dated April 2, 1999 (Administrative Record Number WV-

1120), EPA responded to OSM's request for concurrence dated March 19,

1999 (Administrative Record Number WV-1118), and stated that it does

not concur with the proposed revision at section 22-3-13(c)(3). EPA

stated that it is withholding concurrence because the amendment would

result in degradation of stream quality and aquatic life and violate

the Anti-Degradation Policy of the West Virginia Water Quality

Standards (Section 46-1-4 of the Legislative Rules of the Environmental

Quality Board). According to EPA, compliance with Water Quality

Standards is a requirement of the Clean Water Act.

In its letter, the EPA stated that the proposed revision for

exempting the restoration of mined lands to approximate original

contour would result in an increase of excess spoil being placed in

valley fills on stream beds rather than on top of mined areas. The

reasons for allowing this exemption are not justified, since the lower

and more level areas resulting from the exemption are not necessary to

sustain ``fish and wildlife habitat and recreation lands.'' Wildlife

habitat areas would occur naturally on postmining lands, including

areas restored to the approximate original contour, as a result of

appropriate reclamation without any special use designation. Increased

disposal of excess spoil in valley fills resulting from the proposed

exemption will unnecessarily harm aquatic life in headwater streams and

possibly downstream reaches, the EPA said.

In response, and in accordance with EPA's non-concurrence stated

above, we have not approved the proposed amendment.

V. Director's Decision

Based on the finding above, we are not approving the proposed

language ``or fish and wildlife habitat and recreation lands'' at

section 22-3-13(c)(3), as submitted on April 28, 1997. In addition, we

are requiring that section 22-3-13(c)(3) of the West Virginia program

be further amended to remove the phrase ``or fish and wildlife habitat

and recreation lands.'' We are also requiring that the term ``public

use'' at section 22-3-13(c)(3) be amended to include the term

``facility'' and to further clarify that the State term will be

interpreted the same as ``public facility (including recreation

facilities) use'' at SMCRA section 515(c)(3).

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 and

assumptions for the corresponding 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.

[[Page 26295]]

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 4, 1999.

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 Date of final publication Citation/description

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

* * * * * * *

April 28, 1997........................... May 14, 1999................ W.Va. Code 22-3 Section 13(c)(3) [not approved].

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

3. Section 948.16 is amended by adding new paragraph (iiii) to read

as follows:

Sec. 948.16 Required regulatory program amendments.

* * * * *

(iiii) By July 13, 1999, West Virginia must submit either a

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

together with a timetable for adoption, to:

(1) Amend section 22-3-13(c)(3) of the West Virginia program to

remove the phrase ``or fish and wildlife habitat and recreation

lands''; and

(2) Amend ``public use'' at section 22-3-13(c)(3) to include the

term ``facility'' and to further clarify that the term will be

interpreted the same as ``public facility (including recreation

facilities) use'' at SMCRA section 515(c)(3).

[FR Doc. 99-12212 Filed 5-13-99; 8:45 am]

BILLING CODE 4310-05-P