West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-082-FOR]

West Virginia Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing its approval of amendments and its decision

concerning the State's request that we reconsider certain decisions on

a previous program amendment to the West Virginia permanent regulatory

program under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment revises the West Virginia surface mining

regulations concerning definitions of ``area mining operations'' and

``mountaintop mining operations;'' variances from approximate original

contour in steep slope areas; subsidence control plans; permit

issuance; construction tolerance; surface owner protection; and primary

and emergency spillway designs. The previous amendment being

reconsidered concerns subsidence regulations. The amendment is intended

to improve the operational efficiency of the State program, and to make

the regulations consistent with the counterpart Federal regulations.

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,

Charleston Field Office, 1027 Virginia Street East, Charleston, West

Virginia 25301. Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West 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. 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 May 5, 1999 (Administrative Record Number WV-1127),

the West Virginia Division of Environmental Protection (WVDEP)

submitted an amendment to the West Virginia permanent regulatory

program pursuant to 30 CFR 732.17. The amendment concerns changes to

the West Virginia regulations made by the State Legislature in House

Bill 2533 which was enacted on April 2, 1999. In addition, the WVDEP

requested that OSM reconsider its disapproval of parts of CSR 38-2-3.12

(concerning subsidence control plan) and 38-2-16.2 (concerning surface

owner protection) and remove the corresponding required regulatory

program amendments specified in the February 9, 1999, Federal Register

(64 FR 6201-6218) in light of the April 27, 1999, United States Court

of Appeals decision on Case No. 98-5320.

We announced receipt of the proposed amendment in the May 27, 1999,

Federal Register (64 FR 28771), invited public comment, and provided an

opportunity for a public hearing on the adequacy of the proposed

amendment. The public comment period closed on June 28, 1999. No one

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

held.

III. Director's Findings

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

732.15 and 732.17, are our findings concerning the proposed amendment.

Any revisions that we do not specifically discuss below concern

nonsubstantive wording changes or revised paragraph notations to

reflect organizational changes that result from this amendment.

1. CSR 38-2-2.11 Definition of ``Area Mining Operation.'' In this

new definition, ``Area Mining Operation'' is defined to mean a mining

operation where all disturbed areas are restored to approximate

original contour (AOC) unless the operation is located in steep

[[Page 53201]]

slope areas and a steep slope AOC variance in accordance with

subsection 14.12 of this rule has been approved. An area mining

operation may remove all or part of coal seam(s) in the upper fraction

of a mountain, ridge, or hill. However, it is not classified as a

mountaintop operation for one or more of the following reasons:

2.11.a. The site may be restored to AOC; or

2.11.b. The entire coal seam may not be removed.

There is no Federal definition of the term ``area mining

operation.'' However, we find that the term ``area mining operation''

does not include ``mountaintop-removal mining'' and is analogous with

the Federal requirements relating to ``steep slope mining.'' Because

the definition is not inconsistent with SMCRA or the Federal

regulations it can be approved.

2. CSR 38-2-2.78 Definition of ``Mountaintop Mining Operation.'' In

this new definition, ``Mountaintop Mining Operation'' is defined to

mean a mining operation that removes an entire coal seam or seam(s) in

an upper fraction of a mountain, ridge, or hill and creating a level

plateau or a gently rolling contour with no highwalls. The approved

postmining land use must be in accordance with Sec. 22-3-13(c)(3) of

the West Virginia Code. We find the definition of ``mountaintop mining

operation'' to be substantively identical to the Federal regulations

governing ``mountaintop removal mining'' at 30 CFR 824.11(a)(2) and it

is, therefore, approved.

3. CSR 38-2-3.12 Subsidence control plan. Subdivision 3.12.a.2. is

amended to change the words ``could contaminate, diminish or * * *'' to

read ``could be contaminated, diminish or * * *'' We find that this

change helps to clarify the meaning of this provision and can be

approved. However, the proposed change has not satisfied the required

amendment at 30 CFR 948.16(aaaa). The second paragraph of subdivision

3.12.a.2. is amended by adding the word ``building'' to read as

follows: ``A survey of the condition of all non-commercial building or

residential * * *'' We find that the addition of the word ``building''

at Subdivision 3.12.a.2 is no less effective than 30 CFR 784.20(a)(3)

and can be approved.

Subdivision 3.12.a.2.B. is amended to change the words ``Non-

commercial building as used in this section means, other than * * *''

to read ``Non-commercial building as used in this section means any

building, other than * * *'' We find that this change clarifies the

meaning of this provision and can be approved. However, the required

amendment at 30 CFR 948.16(cccc) still remains unsatisfied because the

definition of ``non-commercial building'' does not include such

buildings used on a temporary basis as provided by 30 CFR 701.5.

4. CSR 38-2-3.32.b. Findings--permit issuance. In the third

paragraph, the name of the database ``Surface Mining Information

System'' is deleted and replaced by ``Environmental Resources

Information Network.'' We find that this name change more accurately

describes the WVDEP's surface mine database management system. The

proposed revision does not render the West Virginia program less

effective than the Federal requirements and, therefore, can be

approved.

5. CSR 38-2-3.35 Construction tolerance. This subsection is amended

by adding the title ``Construction Tolerance.'' We find that this

change clarifies the purpose of the provisions at subdivision 3.35 and

can be approved.

6. CSR 38-2-14.12.a.1. Variance from approximate original contour

requirements. This provision is amended by adding the following

language: ``and the land after reclamation is suitable for industrial,

commercial, residential or public use (including recreational

facilities).'' As amended the provision reads as follows. ``The permit

area is located on steep slopes as defined in subdivision 14.8.a. of

this rule and the land after reclamation is suitable for industrial,

commercial, residential or public use (including recreational

facilities).'' We find that the new language is substantively identical

to the Federal regulations at 30 CFR 785.16(a)(1), pertaining to

variance from the approximate original contour (AOC) requirement for

steep slope mining operations, and can be approved. This revision

satisfies the required amendment at 30 CFR 948.16(mmm) which can be

removed.

7. CSR 38-2-16.2. Surface owner protection. Subdivision 38-2-

16.2.c. is amended by adding the word ``damage'' after the word

``Material'' at the beginning of the first sentence. In addition, the

words ``or facility'' are added after the word ``structure'' and before

the word ``from'' near the end of the first sentence. We find that

these changes, which are no less effective than 30 CFR 701.5, clarify

the meaning of the term ``material damage'' and, therefore, can be

approved.

Subdivision 38-2-16.2.c.3. is amended to delete the word ``occurs''

after the words ``subsidence damage'' and before the words ``to any.''

We find that this change eliminates a redundant word and clarifies the

meaning of this provision and can be approved.

8. CSR 38-2-22.4.g. Primary and emergency spillway design. This

subdivision is amended by changing the probable maximum precipitation

(PMP) event for impoundments meeting the size or other criteria of 30

CFR 77.216(a) from a 24-hour storm event to a ``six (6)'' hour storm

event. This change has been submitted in response to a required program

amendment codified at 30 CFR 948.16(uuu). On February 21, 1996 (61 FR

6528) the Director determined that the State's PMP 24-hour storm event

standard would be impossible to implement because the U.S. Weather

Service's document ``Rainfall Frequency Atlas'' does not have data

charts concerning PMP for a 24-hour storm event. The ``Rainfall

Frequency Atlas'' does, however, contain data charts for PMP 6-hour

storm events. We find that with this change, the provision is

substantively identical to the Federal regulations at 30 CFR 816/

817.84(b)(2) and which specify the PMP 6-hour storm event. We also find

that this amendment satisfies the required program amendment codified

at 30 CFR 948.16 (uuu) which can be removed.

9. WVDEP request that OSM reconsider certain decisions and required

amendments published in the February 9, 1999, Federal Register (64 FR

6201-6218).

Along with its submittal of this amendment, the WVDEP also

requested that we reconsider our disapproval of amendments and the

related required amendments to the West Virginia program in the

February 9, 1999, Federal Register (64 FR 6201-6218). In that notice,

we disapproved parts of CSR 38-2-3.12 (concerning subsidence control

plan) and 38-2-16.2 (concerning surface owner protection) and added

related required regulatory program amendments. The WVDEP cited the

United States Court of Appeals decision in National Mining Ass'n. v.

Babbitt, 172 F.3d 906 (D.C. Cir. 1999), as the basis for its request.

In the above referenced decision, the Court struck down two OSM

regulations on coal mine subsidence. First, the Court of Appeals

vacated 30 CFR 817.121(c)(4)(i), which established a rebuttable

presumption that damage to any noncommercial building or occupied

residential dwelling or structure related thereto, resulting from earth

movement occurring within the ``angle of draw'' of an underground

mining operation, was caused by subsidence from that mining operation.

172 F.3d at 913. The Court also struck down a portion of 30 CFR

784.20(a)(3) that required coal operators to conduct

[[Page 53202]]

presubsidence structural condition surveys. The Court vacated this

provision because the area in which the survey was required was defined

by reference to the angle of draw, which the Court found to be an

arbitrary and capricious basis for the establishment of a rebuttable

presumption. Id. at 915. The two regulations that were struck down were

among those issued on March 31, 1995, at 60 FR 16722-51, pursuant to

SMCRA and section 2504 of the Energy Policy Act of 1992. The Energy

Policy Act of 1992 added a new section 720 to SMCRA. Section 720

requires underground mine operators to repair or to compensate for

material damage to residential structures and noncommercial buildings,

and to replace residential water supplies adversely affected by

underground mining.

As the WVDEP requested, we reviewed the findings that we made in

the February 9, 1999, Federal Register notice in the light of the Court

of Appeals decision cited above. Based on our review, we have

determined that some of our decisions and required amendments are

affected by the Court's decisions. Therefore, in a future Federal

Register notice, we will identify the specific findings, decisions and

required amendments that are affected by the Court's decision. We will

open a public comment period and will ask for public comment on the

decisions that we propose to amend and the required amendments that we

propose to delete.

IV. Summary and Disposition of Comments

Federal Agency Comments

As required by 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 on May 21, 1999. The

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

responded and stated that it had no comments.

Public Comments

We solicited public comments on the amendment. No comments were

received.

U.S. Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with respect to

any provisions of a State 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 determined that none of the amendments required EPA

concurrence.

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

proposed amendment from EPA. The EPA responded and stated that it had

no objections to the proposed revisions. The EPA recommended, however,

that the definition of ``mountaintop mining operation'' at CSR 38-2-

2.78 be clarified. The EPA stated that the definition gives the

impression that approval of an AOC variance is not necessary to create

the level area as long as an approved postmining land use plan is

approved. The EPA recommended that the definition be amended to clarify

that W.Va Code 22-3-13(c)(3) includes a requirement of an AOC variance.

In response, we agree that amending the definition as recommended by

EPA would add to its clarity. However, since the proposed definition

already requires compliance with W.Va Code 22-3-13(c)(3), which

requires that an operator be granted a variance in order to be exempt

from the AOC requirement for a mountaintop-removal operation, we

conclude that the additional clarification to the definition is not

necessary.

V. Director's Decision

Based on the findings above, we are approving the proposed

amendments. In a future Federal Register notice, we will identify the

specific findings decisions and required amendments published in our

February 9, 1999, Federal Register notice that are affected by the

United States Court of Appeals decision in National Mining Ass'n. v.

Babbitt, 172 F.3d 906 (D.C. Cir. 1999). We will open a public comment

period and will ask for public comment on the decisions that we propose

to amend and the required amendments that we propose to delete.

The Federal regulations at 30 CFR 948 codifying decisions

concerning the West Virginia program are being amended to implement

this decision. The required regulatory program amendments codified at

30 CFR 948.16(mmm) and CFR 948.16(uuu) are being removed. This final

rule is being made effective immediately to expedite the State program

amendment process and to encourage States to bring their programs into

conformity with the Federal standards without undue delay. Consistency

of State and Federal standards is required by SMCRA.

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

[[Page 53203]]

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.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 7, 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.

* * * * *

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Original amendment submission Date of final

date publication Citation/description

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* * * *

* * *

May 5, 1999................... 10-1-99.......... CSR 38-2-2.11; 2.78;

3.12.a.2, and .2.B;

3.32.b; 3.35;

14.12.a.1; 16.2.c,

and .c.3; and

22.4.g.

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Sec. 948.16 [Amended]

3. Section 948.16 is amended by removing and reserving paragraphs

(mmm) and (uuu).

[FR Doc. 99-25551 Filed 9-30-99; 8:45 am]

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