[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17859-17861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9937]



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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-075-FOR]


West Virginia Permanent Regulatory Program

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

ACTION: Proposed rule.

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SUMMARY: OSM is announcing the receipt of proposed amendments to the 
West Virginia permanent regulatory program (hereinafter referred to as 
the West Virginia program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The amendments concern revisions to 
the West Virginia Surface Mining Reclamation Regulations. The 
amendments are intended to improve the clarity and effectiveness of the 
West Virginia program, and to revise the State program to be consistent 
with the corresponding Federal regulations.

DATES: Written comments must be received on or before 4:00 p.m. on May 
23, 1996. If requested, a public hearing on the proposed amendments 
will be held at 1:00 p.m. on May 20, 1996. Requests to present oral 
testimony at the hearing must be received on or before 4:00 p.m. on May 
8, 1996.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Mr. 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 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 the OSM Charleston Field Office.

Mr. 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, P.O. Box 886, Morgantown, West 
Virginia 26507, Telephone (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. 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 the approval can be found in the 
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent 
actions concerning the West Virginia program and previous amendments 
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amendment

    By letter dated April 2, 1996 (Administrative Record Number WV-
1024), the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to its approved permanent regulatory program 
pursuant to 30b CFR 732.17. The amendment contains revisions to the 
West Virginia Surface Mining Reclamation Regulations (CSR section 38-2-
1 et seq.).
    The last time the State regulations were significantly revised was 
on February 21, 1996. The Director partially approved the revisions in 
the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR 
948.15 for the provisions partially approved. See 30 CFR 948.16 for 
required amendments.

Proposed Amendments

    1. Section 38-2-2-106 Definition of ``Safety factor.'' This 
definition is revised to mean the ratio of the sum of the resisting 
forces to the sum of the loading or driving forces as determined by 
acceptable engineering practices. Prior to this change, the term was 
defined as the ratio of the sum of the resisting forces to the sum of 
the loading forces.
    2. Section 38-2-3.2(e) Readvertisement of permit applications. This 
provision is amended by adding the phrase, ``that do not significantly 
affect the health, safety or welfare of the public and,'' to the first 
sentence. With this change, a limited number of minor

[[Page 17860]]

changes may be grouped and advertised in one additional notice if the 
changes do not significantly affect the health, safety or welfare of 
the public.
    3. Section 38-2-2.6(h)(5) Certification of drainage/sediment 
control structure designs. This provision is amended by changing a 
cited reference concerning dams. ``Article 5D of Chapter 20'' is 
deleted and replaced by ``Article 14 of Chapter 22.''
    4. Section 38-2-3.8(c) Revision or reconstruction of existing 
structures and support facilities. This provision is amended by adding 
the following language: ``Provided, that those structures and 
facilities, where it can be demonstrated that reconstruction or 
revision would result in greater environmental harm and the performance 
standards set forth in the Act and these regulations can otherwise be 
met, may be exempt from revision or reconstruction.'' This amendment, 
in effect, provides an alternative to requiring revision or 
reconstruction of structures or support facilities in cases where 
greater environmental harm would result from the revisions or 
reconstruction.
    5. Section 38-2-3.27 Permit renewals and extensions. The 
introductory paragraph of this provision is amended by deleting the 
work ``may'' and adding in its place the word ``shall.'' In addition, 
language has been deleted that required all backfilling and grading be 
completed within 60 days prior to the expiration date of the permit, 
and that an application for Phase I bond release be filed prior to the 
expiration date of the permit. As amended, the provision provides that 
the Director of the Division of Environmental Protection (DEP) shall 
waive the requirements for renewal if the permittee certifies in 
writing that all coal extraction is completed, that all backfilling and 
regrading will be completed and reclamation activities are ongoing.
    6. Section 38-2-4.4 Infrequently used access road. This provision 
is revised by deleting and adding rule citations. as amended, 
infrequently used access roads may not be exempt from the requirements 
of Secs. 38-2-4.2, 4.7(a), 4.8, 4.9, and 5.3.
    7. Section 38-2-4.12 Certification of primary roads. This provision 
is amended by deleting the requirement that changes documented in the 
as-built plans be submitted to the Director of DEP as a permit 
revision. In its place, the following language is added: ``If as-built 
plans are submitted, the certification shall describe how and to what 
extent the construction deviates from the proposed design, and shall 
explain how and certify that the road will meet performance standards. 
In effect, this amendments replaces a requirement that all changes 
documented as-built plans be submitted as a permit revision, with a 
requirement that when changes are certified, the certification shall 
include an explanation and certification that the changes will meet 
performance standards.
    8. Section 38-2-5.4(c) Safety standards for embankment type 
structures. The first paragraph of this provision is amended by 
deleting the phrase ``which may include slurry impoundments.'' With 
this amendment, the provision's safety standards apply to all 
embankment type sediment control or other water retention structures.
    9. Section 38-2-11.6(a) Review of permits for adequacy of bond. 
This provision is amended to add a requirement that permits will not be 
renewed until the appropriate amount of bond has been posted.
    Also, subparagraphs (a) (2), (3), and (4) are deleted. These 
subparagraphs provided that existing permits (for underground mines, 
preparation plants, and coal refuse sites) shall be subject to the 
site-specific bond criteria of Sec. 38-2-11.6 at the time of 
application for renewal or mid-term review, shall not be renewed by the 
Director of DEP until the appropriate amount of bond is posted. See the 
first paragraph in 11.6(a) for language similar to that which is being 
deleted.
    10. Section 38-2-11.6( c)(6), (d)(6), (e)(5), (f)(5) Bond reduction 
credits. These provisions are being amended to delete, in various 
places, the phrase ``within five (5) years of the date of SMA 
approval.'' In effect, the amount of bond reduction credits assigned is 
no longer contingent upon the ``five years from the date of SMA 
approval'' criterion.
    11. Section 38-2-12.2(e) Bond release--chemical treatment. The 
existing language of this provision is deleted and replaced by the 
following:

    Notwithstanding any other provisions of this rule, no bond 
release or reduction will be granted if, at the time, water 
discharged from or affected by the operation requires chemical 
treatment in order to comply with applicable effluent limitations or 
water quality standards; Provided, That the Director may approve a 
request for Phase I but not Phase II or III, release if the 
applicant demonstrates to the satisfaction of the Director that 
either:
    (A) The remaining bond is adequate to assure long term treatment 
of the drainage; or
    (B) The operator has irrevocably committed other financial 
resources which are adequate to assure long term treatment of the 
drainage; Provided, That the alternate financial resources must be 
in acceptable form, and meet the standards set forth in Section 11 
of the Act and Section 11 of these regulations; Provided, however, 
That alternate financial arrangements shall provide a mechanism 
whereby the Director can assume management of the resources and 
treatment work in the event that the operator defaults for any 
reason; And provided further, That default on a treatment obligation 
under this paragraph shall be considered equivalent to a bond 
forfeiture, and the operator will be subject to penalties and 
sanctions, including permit blocking, as if a bond forfeiture had 
occurred.
    In order to make such demonstration as referenced above, the 
applicant shall address, at a minimum, the current and projected 
quantity and quality of drainage to be treated, the anticipated 
duration of treatment, the estimated capital and operating cost of 
the treatment facility, and the calculations which demonstrate the 
adequacy of the remaining bond or of the alternate financial 
resources.

    In effect, the added language would allow, under the specified 
circumstances, Phase I bond release on operations which require 
chemical treatment in order to comply with applicable effluent 
limitations or water quality standards.
    The Director notes that the State's definition of ``chemical 
treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM. 
Specifically, the language of the definition that excludes passive 
treatment systems from being considered ``chemical treatment'' was not 
approved to the extent that such passive treatment systems would be 
applied in the context of Sec. 38-2-12.2(e) to authorize bond release 
for sites with discharges that require passive treatment to meet 
discharge standards. For a complete explanation of the partial 
disapproval of the State's definition of ``chemical treatment,'' see 
Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511) 
page 6517.
    12. Section 38-2-14.14(e)(4) Valley fills--rock core chimney 
drains. This provision is being amended by deleting the third sentence, 
which concerns the control of surface water runoff, and replacing that 
language with the following:

    Surface water runoff from areas above and adjacent to the fill 
shall be diverted into properly designed and constructed stabilized 
diversion channels which have been designed using best current 
technology to safely pass the peak runoff from a 1.0 year, 24-hour 
precipitation event. The channel shall be designed and constructed 
to ensure stability of the fill, control erosion, and minimize water 
infiltration into the fill.

    13. Section 38-2-14.15(m) Coal processing waste disposal. This 
provision is being amended by deleting the prohibition at 14.15(m)(1) 
that coal processing waste ``will not contain acid producing or toxic 
forming material.'' A

[[Page 17861]]

new provision at 14.15(m)(2) is added to provide as follows:

    (2) The coal processing waste will not be placed in the backfill 
unless it has been demonstrated to the satisfaction of the Director 
that: (A) the coal processing waste to be placed based upon 
laboratory testing to be non-toxic and/or non-acid producing; or (B) 
an adequate handling plan including alkaline additives has been 
developed and the material after alkaline addition is non-toxic and/
or non-acid producing.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comments on the proposed amendments submitted by the State of 
West Virginia to its permanent regulatory program. Specifically, OSM is 
seeking comments on the revisions to the State's regulations that were 
submitted on April 2, 1996 (Administrative Record No. WV-1024). 
Comments should address whether the proposed amendments satisfy the 
applicable program approval criteria of 30 CFR 732.15. If the 
amendments are deemed adequate, they 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.

Public Hearing

    Persons wishing to testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by the close of 
business on May 8, 1996. If no one requests an opportunity to testify 
at the public hearing by that date, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate remarks and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to testify have been heard. Persons in the audience 
who have not been scheduled to testify, and who wish to do so, will be 
heard following those scheduled. The hearing will end after all persons 
scheduled to testify and persons present in the audience who wish to 
testify have been heard.

Public Meeting

    If only one person or group requests to testify at a hearing, a 
public meeting, rather than a public hearing, may be held, and the 
results of the meeting included in the Administrative Record.
    Persons wishing to meet with OSM representatives to discuss the 
proposed amendments may request a meeting at the OSM Charleston Field 
Office listed under ADDRESSES by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    All such meetings will be open to the public and, if possible, 
notices of meetings will be posted in advance at the locations listed 
under ADDRESSES. A written summary of each public meeting will be made 
a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12291

    On July 12, 1984, the Office of Management and Budget (OMB) granted 
OSM an exemption from sections 3, 4, 7 and 8 of Executive Order 12291 
(Reduction of Regulatory Burden) for actions related to approval or 
conditional approval of State regulatory programs, actions and program 
amendments. Therefore, preparation of a regulatory impact analysis is 
not necessary, and OMB regulatory review is not required.

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 the Surface Mining Control and 
Reclamation Act (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 the Office of Management and Budget 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 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 12, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-9937 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-05-M