[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Proposed Rules]
[Pages 34934-34937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16378]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
West Virginia Program Amendment
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; reopening and extension of public comment
period.
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SUMMARY: OSM is announcing the receipt of additional revisions to the
West Virginia permanent regulatory
[[Page 34935]]
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 definition of chemical treatment,
ownership and control files, roads, as-built designs, noncoal mine
waste, durable rock fills, 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 p.m. on July
20, 1995.
ADDRESSES: Written comments should be mailed or hand delivered to James
C. Blankenship, Jr., Director, Charleston Field Office at the address
listed below
Copies of the proposed amendment, the West Virginia program, and
the administrative record 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, Jr., 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, PO 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, PO Box 506, Logan, West Virginia
25601, Telephone: (304) 752-2851
FOR FURTHER INFORMATION CONTACT:
Mr. James C. Blankership, Jr., Director, Charleston Field Office;
Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background
SMCRA was passed in 1977 to address environmental and safety
problems associated with coal mining. Under SMCRA, OSM works with
States to ensure that coal mines are operated in a manner that protects
citizens and the environment during mining, that the land is restored
to beneficial use following mining, and that the effects of past mining
at abandoned coal mines are mitigated.
Many coal-producing States, including West Virginia, have sought
and obtained approval from the Secretary of the Interior to carry out
SMCRA's requirements within their borders. In becoming the primary
enforcers of SMCRA, these ``primacy'' states accept a shared
responsibility with OSM to achieve the goals of the Act. Such States
join with OSM in a shared commitment to the protection of citizens--our
primary customers--from abusive mining practices, to be responsive to
their concerns, and to allow them full access to information needed to
evaluate the effects of mining on their health, safety, general
welfare, and property. This commitment also recognizes the need for
clear, fair, and consistently applied policies that are not
unnecessarily burdensome to the coal industry--producers of an
important source of our Nation's energy.
Under SMCRA, OSM sets minimum regulatory and reclamation standards.
Each primacy State ensures that coal mines are operated and reclaimed
in accordance with the standards in its approved State program. The
States serve as the front-line authorities for implementation and
enforcement of SMCRA, while OSM maintains a State performance
evaluation role and provides funding and technical assistance to States
to carry out their approved programs. OSM also is responsible for
taking direct enforcement action in a primacy State, if needed, to
protect the public in cases of imminent harm or, following appropriate
notice to the State, when a State acts in an arbitrary and capricious
manner in not taking needed enforcement actions required under its
approved regulatory program.
Currently there are 24 primacy states that administer and enforce
regulatory programs under SMCRA. These states may amend their programs,
with OSM approval, at any time so long as they remain no less effective
than Federal regulatory requirements. In addition, whenever SMCRA or
implementing Federal regulations are revised, OSM is required to notify
the States of the changes so that they can revise their programs
accordingly to remain no less effective than the Federal requirements.
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, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
In a series of three letters dated June 28, 1993, and July 30, 1993
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West
Virginia Division of Environmental Protection (WVDEP) submitted an
amendment to its approved permanent regulatory program that included
numerous revisions to the West Virginia Surface Coal Mining and
Reclamation Act (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. Following this initial comment period, WVDEP revised the
amendment on March 12, 1994, and September 1, 1994 (Administrative
Record Nos. WV-933 and WV-937). OSM reopened the comment period on
August 31, 1994, September 29, 1994, and May 19, 1995, and held public
meetings in Charleston, West Virginia on September 7, 1993, October 27,
1994, and May 30, 1995.
OSM and WVDEP held a telephone conference on January 18, 1995, to
discuss the States revisions to the program amendment which were
submitted on September 1, 1994, and announced for public comment in the
September 29, 1994, Federal Register (59 FR 49620). This meeting was
followed-up by a letter on February 15, 1995, which identified
provisions in the September 1, 1994, submittal where OSM either needed
further clarification or where OSM believed the proposal was less
effective than the Federal rules.
The WVDEP responded by revising and resubmitting the September 1,
1994, revisions on May 8, 1995 and May 16, 1995, (Administrative Record
Nos. 979A and 979B). These revisions were passed by the West Virginia
Legislature as House Bill--2134. Also included were
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new State initiatives found in Senate Bills--287 and 350, and House
Bill--2523.
This notice requests public comment on the revised program
revisions and new initiatives submitted to OSM by the WVDEP on May 8,
1995 and May 16, 1995. These revisions include the following:
1. CSR 38-2-2.92 Definitions
The WVDEP proposes to define ``chemical treatment'' as it applies
to the prohibition of bond release where water treatment is necessary
to bring point source discharges into compliance with effluent
standards.
2. CSR 38-2-3.1(o) Ownership and Control File
The WVDEP proposes to add a provision which will allow permittee,
upon request and with the approval of the Director, to submit and
maintain a centralized ownership and control file. Any permit
application which references an approved centralized ownership and
control file may be determined to be complete and accurate for all
permitting actions including revisions, transfers, assignments and
sales.
3. 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. The
permittee or operator is required to notify the Director if no changes
have occurred.
4. 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 60 days prior to the expiration
date of the permit and that an application for Phase I bond release
will be filed prior to the expiration date of the permit. Failure to
complete backfilling and regrading within 60 days prior to the
expiration date of the permit will nullify the waiver.
5. CSR 38-2-3.34 (b), (g) Improvidently Issued Permits
The WVDEP proposes to amend paragraph (b) by inserting the phrase
``in paragraph (b) of subsection 3.32 of this section'' to clarify that
if a permit is issued at a time in which the applicant was in violation
of environmental laws that the permit was improperly issued and must be
withdrawn. Paragraph (g) is being revised to clarify that permit
issuance includes permit revisions for ownership and control purposes.
6. 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. A statement has
been added to clarify that prospecting roads are to be designed,
constructed, maintained, and reclaimed in accordance with subsection
13.6 which governs prospecting roads. Cross references have also been
revised.
7. CSR 38-2-4.7(a)(1) Performance Standards for Roads
The WVDEP proposes to add a new provision requiring that each road
be designed, located, constructed, maintained, and reclaimed so as to
minimize downstream sedimentation and flooding.
8. CSR 38-2-4.12 Certification
The WVDEP proposes to add a provision requiring that, where the
certification statement for a primary road indicates a change from
design standards or construction requirements in the approved permit,
such changes must be documented in as-built plans and submitted as a
permit revision.
9. CSR 38-2-13.6 (a)(7), (f)(6) Prospecting Roads
WVDEP proposes to correct a typographical error at paragraph (a)(7)
and to revise paragraph (f)(6) by requiring topsoil removal and
replacement in accordance with section 14.3.
10. CSR 38-2-14.14(g)(8) Durable Rock Fills
The WVDEP proposes to amend its rules to require that surface
runoff from areas above and adjacent to durable rock fills be diverted
into channels which have bee designed using the best current technology
available to safely pass the peak runoff from a 100 year, 24-hour
precipitation event. The channel must be designed and constructed to
ensure stability of the fill, control erosion, and minimize
infiltration into the fill.
11. CSR 38-2-14.15(M) Coal Processing Waste Disposal
The WVDEP proposes to 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. Under the
proposal, no coal processing waste that contains acid-producing or
toxic-forming material may be placed in the backfill.
12. 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). Timber from clearing and
grubbing operations may be wind-rowed at the projected toe of the
outslope.
13. 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 provide for interstate coordination and
exchange of information collected under SOAP.
14. CSR 38-2-17.3(b) Eligibility for Assistance
WVDEP proposes to use the total attributed annual production in
determining eligibility for assistance under SOAP. Production from
operations where the applicant owns more than a 10 percent interest
will be attributed to the applicant.
15. CSR 38-2-17.4 Request for Assistance
WVDEP proposes to require SOAP applicants to provide information on
forms provided by the Director of WVDEP.
16. CSR 38-2-17.7 (a)(4) Liability of SOAP Operators
The WVDEP proposes to clarify that SOAP applicants will be liable
for the cost of program services performed if
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actual and attributed production for all locations exceed 300,000 tons
during the 12 month period immediately following permit issuance.
17. CSR 38-2C-4 Training of Blasters
WVDEP proposes to add a provision that would allow applicants for
certification or recertification to complete a self-study course in
lieu of the existing training program. Self-study materials would be
provided by the WVDEP.
18 CSR 38-2C-10.1 Violations by a Certified Blaster
WVDEP proposes to remove language authorizing the Director to issue
a cessation order and/or take other action as provided by the WVSCMRA
Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA
Sec. 22-3-1. The Director retains his authority to issue a notice of
violation.
19. CSR 38-2C-11 Penalties
WVDEP proposes to revise its rules to provide for a hearing before
the Director to show cause why a blasters certification should not be
suspended.
20. CSR 38-D-4.4(b) Reclamation Objectives and Priorities
WVDEP proposes to clarify its objectives and priorities for
abandoned mine lands reclamation projects by indicating the provision
applies to ``past' coal mining practices which may or may not
constitute an extreme danger.
21. CSR 38-2D-6.3(a) Acceptance of Gifts of Land
WVDEP proposes to remove the requirement that the director accept
gifts of land in accordance with Department of Justice procedures for
the acquisition of real property.
22. CSR 38-2D-8.7(a) Grant Application Procedures
WVDEP proposes to remove provisions which describe the procedures
for submitting a grant application to OSM for the reclamation of
abandoned mine lands.
23. WV Sec. 22B-3-4(c) Environmental Quality Board Rulemaking
Authority
WVDEP proposes to authorize the Environmental Quality Board to
grant variances to in-stream water quality standards for coal remining
operations. The standards established in the variance would exist for
the term of the NPDES permit. Under the proposal, the Board will
promulgate procedural rules on granting site-specific coal remining
variances. At a minimum, the procedures would include a description of
the data and information required from an applicant for a variance,
criteria employed by the board in its decision, and provisions for
public comment and hearing. The proposed rule gives direction as to
when a variance may be granted.
WVDEP gave notice to OSM that WVSCMRA Sec. 22-3-8-6(B) was being
revised to require that an operator provide the Director with proof of
payment of workers compensation premiums on an annual basis, and that
Sec. 22-1-6(D)(7) was being revised to authorize the Director to employ
in-house council to perform all legal services. The director finds that
these revisions do not require an amendment to the West Virginia State
Program pursuant to 30 CFR 732.17(c).
III. Public Comment Procedures
OSM is extending the comment period to provide the public an
opportunity to comment on the proposed revisions in the State program.
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. 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.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 28, 1995.
Ronald C. Recker,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-16378 Filed 7-3-95; 8:45 am]
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