[Federal Register Volume 59, Number 188 (Thursday, September 29, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24133]


[[Page Unknown]]

[Federal Register: September 29, 1994]


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DEPARTMENT OF THE INTERIOR
30 CFR Part 948

 

West Virginia Program Amendment

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

ACTION: Proposed Rule; Extension of Public Comment Period.

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SUMMARY: OSM is announcing the receipt of additional revisions 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 additional revisions pertain to a 
previously proposed amendment (WV-074) to West Virginia's Surface 
Mining Reclamation Regulations. The proposed revisions concern the 
transfer, assignment or sale of permit rights; permitting requirements 
for a shared facility or structure; reporting of changes in ownership 
and control information; waiver of permit renewal requirements; permit 
revocation; prospecting roads; contemporaneous reclamation; disposal of 
coal processing waste and noncoal mine waste; utility installations; 
small operator assistance; and other matters. The amendment is intended 
to improve operational efficiency and revise the West Virginia program 
to be consistent with the corresponding Federal regulations and SMCRA.

DATES: Written comments must be received on or before 4:00 p.m. on 
October 31, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to James 
C. Blankenship, Director, Charleston Field Office at the address listed 
below.
    Copies of the proposed amendment, the West Virginia program, 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 amendment by 
contacting OSM's Charleston Field Office.

James C. Blankenship, 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 proposed amendments 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
Office of Surface Mining Reclamation and Enforcement, Logan Area 
Office, 313 Hudgins Street, 2nd Floor, P.O. Box 506, Logan, West 
Virginia 25601, Telephone: (304) 752-2851

FOR FURTHER INFORMATION CONTACT: Mr. James C. Blankenship, Jr., 
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 approval can be found in the January 
21, 1981, Federal Register (46 FR 5915). Subsequent actions concerning 
the conditions of approval and program amendments can be found at 30 
CFR 948.10, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amendment

    By letter dated June 28, 1993, the West Virginia Division of 
Environmental Protection (WVDEP) submitted an amendment to its approved 
permanent regulatory program (Administrative Record Nos. WV 888, WV 889 
and WV 893). The amendment contains revisions to the West Virginia 
Surface Coal Mining and Reclamation Act (WVSCMRA Sec. 22A-3-1 et seq.) 
and the West Virginia Surface Mining Reclamation Regulations (CSR 
Sec. 38-2-1 et seq.). OSM announced receipt of the proposed amendment 
in the August 12, 1993, Federal Register (58 FR 42903) and invited 
public comment on its adequacy. The public comment period closed on 
September 7, 1993.
    By letter dated April 1, 1994 OSM informed the WVDEP of more than 
100 probable deficiencies in the proposed amendment (Administrative 
Record No. WV-916). The WVDEP and OSM held meetings on April 25, May 5, 
June 20, and August 5, 1994, in an effort to resolve these issues. 
During this time, WVDEP submitted to OSM technical studies, policy 
statements, legal opinions and explanations in support of the 
amendment. OSM provided the WVDEP with technical evaluations of the 
proposed amendment completed by OSM's Eastern Support Center. These 
documents and a summary of the meetings, including proposed resolutions 
of the issues, have been included in the Administrative Record (see 
Record Nos. WV-916 through 933) and are available for review at the 
addresses listed above.
    In order to resolve several issues, the WVDEP submitted as a 
revision to the June 28, 1993, amendment, portions of House Bill 4065 
which was passed by the West Virginia legislature on March 12, 1994 
(Administrative Record No. WV 933). House bill 4065 concerns the 
establishment of the Division of Environmental Protection and the 
Surface Mine Board, and revisions to the Abandoned Mine Lands Act and 
Surface Coal Mining and Reclamation Act.
    OSM announced receipt of House Bill 4065 in the August 31, 1994, 
Federal Register (59 FR 44953) and reopened the public comment period 
for 30 days.
    On September 1, 1994, the WVDEP also submitted as part of the June 
28, 1993, amendment, additional proposed revisions to the State's 
Surface Mining Reclamation Regulations (Administrative Record No. WV-
937). Many of these revisions are in response to OSM's April 1, 1994, 
and August 30, 1994, letters to the WVDEP that identified program 
deficiencies (Administrative Record No's. WV-916 and WV-934). Other 
revisions have been proposed at the State's initiative. OSM is 
extending the current public comment period on proposed amendment WV-
074 to allow sufficient time for comment on the adequacy of revisions 
proposed on September 1, 1994. These revisions include the following:

1. CSR 38-2-2.92  Definitions

    The WVDEP proposes to add a definition of the word ``principals'' 
as it relates to Section 9 of the WVSCMRA.

2. CSR 38-2-3.1(o)  Ownership and Control File

    The WVDEP proposes to add a provision which will allow permittees, 
upon request and with the approval of the Director, to submit and 
maintain a centralized ownership and control file.

3. CSR 38-2-3.4(d)(23)  Explosive Storage Facility

    The WVDEP proposes to revise its rules to clarify that explosive 
storage and handling facilities which will remain in place for an 
extended period of time during the life of the operation must be 
located on preplan mining maps.

4. CSR 38-2-3.8(a)  Support Facilities

    The WVDEP proposes to add a provision requiring that each permit 
application contain a description, plans, and drawings for each support 
facility to be constructed, used or maintained within the proposed 
permit area.

5. CSR 38-2-3.8(d)  Shared Facilities or Structures

    The WVDEP proposes to add a provision which will provide for the 
permitting and bonding of a facility or structure that is to be shared 
by two or more separately permitted mining operations.

6. CSR 38-2-3.25(e)  Transfer, Assignment or Sale of Permit Rights

    The WVDEP proposes to add a paragraph requiring each assignee who 
will function as an operator to update and furnish on an annual basis 
ownership and control information.

7. CSR 38-2-3.26  Ownership and Control Changes

    The WVDEP proposes to add provisions governing the reporting of 
name changes, replacements, and additions to the ownership and control 
information for any surface mining operation or permittee.

8. CSR 38-2-3.27(a)  Permit Renewals

    The WVDEP proposes to add a provision which will allow the director 
to waive the requirements for permit renewal if the permittee certifies 
in writing that all coal extraction is completed, that all backfilling 
and regrading will be completed within 120 days prior to the 
exploration date of the permit and that an application for Phase I bond 
release will be filed within 30 days following completion of 
backfilling and regrading.

9. CSR 38-2-3.31(a)  Exemption for Government Financed Highway or Other 
Construction

    The WVDEP proposes to revise its rules to allow exemptions from the 
requirements of the WVSCMRA for county, municipal or other local 
government-financed highway or other construction.

10. CSR 38-2-3.34(b)(4)  Improvidently Issued Permits

    The WVDEP proposes to add a provision providing that a permit shall 
be determined to have been improvidently issued when the permittee had 
a permit revoked or bond forfeited and has not been reinstated, or the 
permittee was linked to a permit revocation or bond forfeiture through 
ownership or control, at the time the permit was issued and an 
ownership or control link between the permittee and the person whose 
permit was revoked or whose bond was forfeited still exists, or when 
the link was severed the permittee continues to be responsible for the 
permit revocation or bond forfeiture.

11. CSR 38-2-3.34(d)(1)(E)  Recission of Improvidently Issued Permit

    The WVDEP proposes to add a provision that provides for automatic 
suspension and recission unless the permittee or other person 
responsible for the permit revocation or bond forfeiture has been 
reinstated pursuant to subsection (c), Section 18 of the WVSCMRA.

12. CSR 38-2-3.34(g) Time of Permit Issuance

    The WVDEP proposes to add a provision to clarify that a permit is 
issued when it is originally approved, as well as when a transfer, 
assignment, or sale of permit rights is approved.

13. CSR 38-2-4.1(a)  Road Classification System

    The WVDEP proposes to include haulageways and access roads under 
its road classification system.

14. CSR 38-2-4-2(a)(7)  Design Certification

    The WVDEP proposes to clarify that road designs are to be certified 
as meeting the requirements of the WVSCMRA and implementing rules.

15. CSR 38-2-4.3  Stream Crossings

    The WVDEP proposes to reorganize its rules to clarify that the 
prohibition of roads in stream channels applies to all roads.

16. CSR 38-2-4.4  Infrequently Used Access Roads

    The WVDEP proposes to add a provision requiring infrequently used 
access roads to be designed to ensure environmental protection 
appropriate for their planned duration and use, and to be constructed 
in accordance with current prudent engineering practices and any 
necessary design criteria established by the Director.

17. CSR 38-2-4.69(a)(10)(D)  Drainage Design

    The WVDEP proposes to revise the requirements for culvert 
installation so that culverts shall be installed and maintained to 
sustain the vertical soil pressure, the passive resistance of the 
foundation and the weight of the vehicles using the road.

18. CSR 38-2-4.7(b)  Sediment Control Structures

    The WVDEP proposes to revise its rules governing sediment storage 
volume and detention time as applied to drainage from roads to clarify 
that the Director may approve lesser storage values than 0.125 acre/
feet if compliance with the applicable effluent limits and the general 
performance standards for roads can be achieved.

19. CSR 38-2-5.4(c)(6)(D)  Design Assumptions and Calculations

    The WVDEP proposes to add a requirement for permit applicants to 
include a description of each engineering design assumption and 
calculation that is used for structures which impound water at an 
elevation of five feet or more above the upstream toe of the structure 
and can have a storage volume of 20 acre-feet or more; or which present 
a hazard to coal miners as determined by an MSHA District Manager.

20. CSR 38-2-5.5  Permanent Impoundments

    The WVDEP proposes to clarify that sediment or water retention or 
impounding structures left in place after final bond release must be 
authorized by the Director as part of the permit application or a 
revision to a permit, and that sound future maintenance of the 
structure must be provided by the landowner.

21. CSR 38-2-11.3(b)  Bond Instruments

    The WVDEP proposes to require that all collateral bonds be 
negotiable and guaranteed. Bonds of the Federal land bank or homeowners 
loan corporation do not satisfy this criteria and, therefore, are no 
longer acceptable under the proposal.

22. CSR 38-2-11.3(b)(8)  Bond Instruments

    The WVDEP proposes to clarify that in no case shall the market 
value of a collateral bond be less than the required bond value.

23. CSR 38-2-11.4(a)(3)  Incremental Bonding

    The WVDEP proposes to require that independent increments be of 
sufficient size and configuration so as to provide for efficient and 
contemporaneous reclamation operations.

24. CSR 38-2-11.6  Site-Specific Bonding

    The WVDEP proposes to establish a time limit of ten years of the 
date of surface mine application (SMA) approval when determining 
conversion factors for setting site-specific bonds.

25. CSR 38-2-12.3  Bond Adjustments

    The WVDEP proposes to add a provision which provides, that upon the 
receipt of a permit revision, the Director may review the bond adequacy 
and, if necessary, increase the amount of the bond.

26. CSR 38-2-12.4(c)  Forfeiture of Bonds

    The WVDEP proposes to clarify that bond forfeiture sites will be 
reclaimed in accordance with the approved reclamation plan or 
modification thereof.

27. CSR 38-2-13.6  Prospecting Roads

    The WVDEP proposed to delete its existing performance standards for 
prospecting roads at CSR 38-2-13.5(b) and establish new requirements at 
CSR 38-2-13.6.

28. CSR 38-2-14.12(a)(6)  Variances from Approximate Original Contour

    The WVDEP proposes to revise its criteria for granting variances 
from approximate original contour to find that a watershed will be 
considered to be improved if the amount of total suspended solids or 
other pollutants discharged to ground or surface water from the permit 
area will be reduced and the total volume of flow from the proposed 
permit area, during every season of the year, will not vary in a way 
that adversely affects the ecology of any surface water or any existing 
or planned use of surface or ground water.

29 CSR 38-2-14.14(e)(10)  Valley Fills

    The WVDEP proposes to limit the maximum grade from the outslope of 
a valley fill toward the rock core to three percent.

30. CSR 38-2-14.15(a)  General contemporaneous Reclamation

    The WVDEP propose to clarify that backfilling and grading of all 
disturbed area be done in a manner which eliminates spoil piles and 
depressions, returns all slopes to the angle of repose or such lesser 
slopes so as to achieve a static safety factor of 1.3 or greater, 
minimizes erosion and water pollution both off and on the site, 
supports the postmining land use, and covers all coal seams, acid-
producing or toxic-forming materials, and combustible material with 
non-toxic and non-combustible material.

31. CSR 38-2-14.15(M)  Coal Processing Waste Disposal

    The WVDEP proposes add provisions governing the placement of coal 
processing waste in the backfill. Disposal facilities must be designed 
using current prudent engineering practices and must meet any design 
criteria established by the regulatory authority. Designs must be 
certified by a qualified registered professional engineer.

32. CSR 38-2-14.18  Utility Installations

    WVDEP proposes to add a provision requiring that all surface mining 
operations be conducted in a manner that minimizes damage destruction, 
or disruption of services provided by utilities.

33. CSR 38-2-14.19  Disposal of Noncoal Waste

    WVDEP proposes to add provisions to regulate the disposal of 
noncoal waste such as grease, lubricants, garbage, abandoned machinery, 
lumber and other materials generated during mining activities. Under 
the proposal, final disposal of noncoal waste will be in accordance 
with a permit issued pursuant to Chapter 22, Article 15 of the Code of 
West Virginia (Solid Waste Management Act).

34. CSR 38-2-17  Small Operator Assistance

    WVDEP proposes to increase the production limit of those operators 
eligible for assistance under the Small Operator Assistance Program 
(SOAP) from 100,000 to 300,000 tons and to provide for payment of 
additional services as authorized under the Energy Policy Act of 1992. 
WVDEP is also proposing to establish application information 
requirements for those persons requesting assistance.

35. CSR 38-2-17.6(c)  Qualified Laboratories

    The WVDEP is proposing to require that a qualified laboratory or 
contractor be capable of making a determination of the proposed 
operations probable hydrological consequences.

36. CSR 38-2-17.79(b)  Liability of SOAP Operators

    The WVDEP proposes to require SOAP applicants to submit written 
statements which sufficiently demonstrate that the applicant has acted 
in good faith at all times in order for the Director to waive the 
applicant's reimbursement obligation.

37. CSR 38-2-20.2(b)(3)  Notice of Violations

    The WVDEP proposes to revise the initial period allowed for 
abatement of violations from 15 to 30 days so that its regulations will 
be consistent with Section 22-3-17(a) of the WVSCMRA.

38. CSR 38-2-20.5(b)  Cessation Order Assessments

    The WVDEP proposes to delete the words ``or modified'' to clarify 
that only remedial measures in the cessation order and not the 
cessation order itself can be modified.

39. CSR 38-2-20.69(c)  Notice of Assessment

    The WVDEP proposes to clarify that the Director shall provide a 
copy of the proposed assessment to the operator within 30 days of the 
date the Assessment Officer receives the findings of an inspection of 
the violation.

40. CSR 38-2-22.4(g)  Spillway Design

    The WVDEP proposes to add the requirement that all impoundments 
meeting size or other criteria of 30 CFR 77.216(a) must be designed and 
constructed to safely pass the probably maximum precipitation of a 24 
hour storm event.

41. CSR 38-2-22.79(a)  Inspection Frequencies

    The WVDEP proposes to clarify that inspections of impounding refuse 
piles will occur during the placement and compaction of coal refuse 
waste and during critical construction periods.

III. Public Comment Procedures

    OSM is extending the comment period on West Virginia program 
amendment WV-074 to provide the public an opportunity to comment on the 
proposed revisions in the States regulations. In accordance with 30 CFR 
732.17(h), OSM is seeking comments on whether the proposed amendment 
satisfies the applicable program 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 issues 
proposed in this rulemaking, 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 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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. 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.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 21, 1994.
Richard J. Seibel,
Acting Assistant Director, Easter Support Center.
[FR Doc. 94-24133 Filed 9-28-94; 8:45 am]
BILLING CODE 4310-05-M