[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Proposed Rules]
[Pages 31543-31546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15008]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]


West Virginia Permanent Regulatory Program

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

ACTION: Proposed rule.

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

SUMMARY: OSM is announcing receipt of a proposed amendment 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 amendment revises both the West Virginia 
Surface Mining Reclamation Regulations and the West Virginia Surface 
Mining Code. The amendment mainly concerns changes to implement the 
standards of the Federal Energy Policy Act of 1992. The amendment is 
intended to revise the State program to be consistent with the 
counterpart Federal provisions.

DATES: Written comments must be received on or before 4:00 p.m. on June 
25, 1997.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Mr. Roger W. Calhoun, 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. Roger W. Calhoun, 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 amendment 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. Roger W. Calhoun, 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 Amemdment

    By letter dated April 28, 1997 (Administrative Record Number WV-
1056), the West Virginia Division of

[[Page 31544]]

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 contains 
revisions to the West Virginia Surface Mining Reclamation Regulations 
(CSR Section 38-2 et seq.), and to Sec. 22-3 of the West Virginia 
Surface Mining Code. The amendment mainly concerns changes to implement 
the standards of the Federal Energy Policy Act of 1992. The amendment 
is intended to revise the State program to be consistent with the 
counterpart Federal provisions.
    The proposed amendments are identified below. Minor wording changes 
and other non-substantive changes are not identified.

1. Section 22-3 of the West Virginia Code

    Sec. 22-3-3(u) The definition of ``surface mine'' is amended by 
adding three examples which are not encompassed by the definition of 
``surface mine.'' The three exceptions are: (1) Coal extraction 
pursuant to a government financed reclamation contract; (2) coal 
extraction authorized as an incidental part of development of land for 
commercial, residential, industrial, or civic use; and the reclamation 
of an abandoned or forfeited mine by a no cost reclamation contract.
    Sec. 22-3-3(x) is added to define ``Unanticipated event or 
condition.''
    Sec. 22-3-3(y) is added to define ``Lands eligible for remining.''
    Sec. 22-3-3(z) is added to define ``Replacement of water supply.''
    Sec. 22-3-13(b)(20) concerning revegetation performance standards 
is amended by adding that on lands eligible for remining, the 
revegetation responsibility period will be not less than two growing 
seasons.
    Sec. 22-3-13(b)(22) is amended by deleting the words ``shall'' in 
the last sentence and replacing that word with ``may.''
    Sec. 22-3-13(c)(3) is amended by adding the postmining land use of 
fish and wildlife habitat and recreation lands to the list of land uses 
where the WVDEP Director may grant a permit under the previously 
specified provisions.
    Sec. 22-3-15(h) is added to provide that the WVDEP Director may 
provide a compliance conference when requested by the permittee.
    Sec. 22-3-17(b) is amended by adding a paragraph to the end of the 
subsection concerning the reinstating, within one year, of a revoked 
permit.
    Sec. 22-3-18(c) is amended by deleting the word ``shall'' in two 
locations and replacing those words with ``may.'' With these revisions, 
a permit ``may'' not be issued until the applicant submits proof that a 
violation is being corrected, and a permit ``may'' not be issued if the 
applicant is found to be affiliated with a person who has had a permit 
or bond revoked for failure to reclaim.
    Sec. 22-3-18(f) is added to provide that the prohibition of 
subsection 22-3-18(c) may not apply to a permit application due to any 
violation resulting from an unanticipated event or condition at a 
surface coal mine eligible for remaining under a permit held by the 
applicant.
    Sec. 22-3-28 The title of this provision is amended from special 
``permits'' to special ``authorization'' for reclamation of existing 
abandoned coal processing waste piles. In addition, the following is 
added to the title: coal extraction as an incidental part of 
development of land for commercial, residential, industrial, or civic; 
no cost reclamation contract. In addition, throughout this provision, 
the term ``permit'' is replaced with ``authorization.''
    Sec. 22-3-28(b) is amended in the last sentence by changing the 
validity of a special authorization from ``until work permitted is 
completed'' to ``for two years.'' Sec. 22-3-28(c) is amended by 
changing ``shall'' to ``may.'' Under this change, anyone who has been 
issued a special authorization ``may'' not be issued an additional 
special authorization unless satisfactory evidence has been submitted 
to the WVDEP Director.
    Sec. 22-3-28(d) is amended by deleting the words ``special permit'' 
and replacing them with the words ``reclamation contract.'' In 
addition, the second from the last sentence is being deleted. That 
sentence reads: ``The director shall promulgate specific rules for such 
operations:''.
    Sec. 22-3-28(e) This new subsection is added to provide that no 
person may engage in coal extraction pursuant to a government financed 
reclamation contract without a valid surface mining permit unless such 
person affirmatively demonstrates that he is eligible to secure special 
authorization to engage in a government financed reclamation contract 
authorizing incidental and necessary coal extraction. The new 
subsection further specifies the criteria under which this provision 
may be implemented.

2. CSR 38-2 of the West Virginia Surface Mining Reclamation Regulations

    38-2-2.4 The definition of ``acid-producing coal seam'' is amended 
by deleting coal seams commonly associated with acid-producing 
minerals. The last sentence is amended by deleting reference to the 
multiple seams whose names were deleted and to refer instead to single 
seams.
    38-2-2.120 is amended by changing the phrase ``land or water 
resources'' to read ``land and water resources.''
    38-2-3.2.e is amended by deleting the last sentence. The deleted 
language requires that permits that are being renewed or significantly 
revised and permit applications which are being significantly revised 
must be advertised in accordance with paragraph 38-2-3.2.b and 
paragraph (6), subsection (a), section 9 of the Act.
    38-2-3.12 concerning subsidence control plans is amended to require 
that the survey map required by subsection 3.12.a.1 identify the 
location and type of water supplies. Language has been added to require 
the survey to identify whether subsidence could contaminate, diminish 
or interrupt water supplies. Language is also added to authorize, upon 
the submittal of justifying technical analysis, of an angle of draw 
other than the specified 30 degrees.
    38-2-3.12.a.2 is added to require surveys of water supplies and 
structures that could be damaged within the applicable angle of draw. 
Two provisors are added that would allow an exemption or postponement 
of the pre-subsidence survey requirements for areas of extraction of 
less than or equal to 60 percent.
    In addition, a provision is added to state that if the permittee is 
denied access to the land or property for the purpose of conducting the 
pre-subsidence survey, the permittee will notify the owner, in writing, 
that no presumption of causation will exist.
    Survey reports shall be signed by the person or persons who conduct 
the survey, and a copy shall be provided to the WVDEP Director. 
Finally, the meaning of the term ``non-commercial building'' is 
clarified.
    38-2-3.14.b.7 and 14.b.8 are deleted. These provisions require a 
PHC and a hydrologic reclamation plan.
    38-2-3.14.b.12.E is amended by adding that ``if requested by the 
Director'' a stability analysis of the existing abandoned coal 
processing waste pile is required.
    38-2-3.14.b.13.B. The existing language is deleted and replaced in 
its entirety.
    This new language provides the requirement and criteria for 
diverting surface water around or over the refuse disposal piles.
    38-2-3.29 concerning incidental boundary revisions (IBR) is amended 
by adding language to authorize that IBR's

[[Page 31545]]

also could include areas where the WVDEP Director determines that 
limited coal removal on areas immediately adjacent to the existing 
permit is the only practical alternative to recovery of unanticipated 
reserves or necessary to enhance reclamation efforts or environmental 
protection.
    38-2-3.35 is added to specify the standards for grade and linear 
measurements.
    38-2-5.5.c is amended to add that for permanent impoundments, the 
landowner sign a request that the structure be left for recreational or 
other purposes.
    Language is deleted that requires that the operator also sign the 
request, and that the request assert that the landowner assumes 
liability for the structure and will provide for sound future 
maintenance of the structure.
    38-2-6.5.a is amended by adding language to allow for blasting on 
Sunday if the WVDEP Director determines that the blasting is necessary 
and there has been an opportunity for a public hearing.
    38-2-8.2.e is added to encourage and specify the criteria for 
timber windrowing to promote the enhancement of food, shelter, and 
habitat for wildlife.
    38-2-9.2.i.2 is amended by adding one sentence to specify that an 
alternate maximum or minimum soil pH may be approved based on the 
optimum pH for the revegetated species.
    38-2-9.3.h.1 is deleted and replaced in its entirity. The revised 
provision changes the minimum tree stocking rate from 600 trees per 
acre to no less than 450 stems per acre.
    38-2-9.3.h.2 is deleted. This provision specified a minimum 
percentage of commercial tree species. The criteria for commercial 
species is now in 38-2-9.3.h.1.
    38-2-9.3.h.2 (formerly h.3) is being revised to change the survival 
rate from 450 trees to 300 trees per acre, or the rate specified in the 
forest management plan, whichever is greater.
    38-2-14.11.e concerning inactive status is amended to delete the 
three-year limit on inactive status for preparation plants and load-out 
facilities. Added language authorizes the WVDEP Director to grant 
inactive status for a period not to exceed ten years, provided the 
facilities are maintained in such condition that operations could be 
resumed within 60 days.
    38-2-14.11.f is added to authorize the WVDEP Director to grant 
inactive status for a period not to exceed current permit term plus 
five years for underground mining operations provided the operation is 
maintained in such condition that the operations could be resumed 
within 60 days and openings are protected from unauthorized entry.
    38-2-14.11.g is added to authorize the WVDEP Director to grant 
inactive status for a period not to exceed ten years for coal refuse 
sites provided the completed lifts of the coal refuse site are regraded 
(which may include topsoiling), seeded and drainage control, where 
possible, has been installed in accordance with the terms and 
conditions of the permit.
    38-2-14.11.h is added to provide that the WVDEP Director may grant 
inactive status for a permit for a longer term than set forth in 
14.11.e. and f. Provided, the permittee shall furnish and maintain bond 
that is equal to the estimated actual reclamation cost, as determined 
by the director, The director shall review the estimated actual 
reclamation cost at least every two and one-half years.
    38-2-14.15.c, concerning reclaimed areas, is amended to delete 
language concerning Phase I bond release and semi-permanent ancillary 
facilities. Language is added to provide that regraded areas must also 
be stabilized. Also added is a list that identifies areas and criteria 
that shall not be included in the calculation of disturbed area: 
14.15.c.1. Semi-permanent ancillary facilities; 14.15.c.2. Areas within 
the confines of excess spoil disposal fills which are under 
construction; 14.15.c.3. Areas containing 30 aggregate acres or less 
which have been cleared and grubbed and have the appropriate drainage 
controls installed and certified; 14.15.c.4. Areas that have been 
cleared and grubbed with exceed the thirty aggregate acres and/or those 
which will not be included in the operational area within six months; 
14.15.c.5. Areas which have been backfilled and graded with material 
placed in a stable, controlled manner which will not subsequently be 
moved to final grade, mechanically stabilized, and had drainage 
controls installed.
    38-2-14.15.d. This provision is amended by adding a final sentence 
to provide that the WVDEP Director may consider contemporaneous 
reclamation plans on multiple permitted areas with adjoining boundaries 
where contemporaneous reclamation is practiced on a total operation 
basis.
    38-2-16.2.c is amended by adding an explanation of the term 
``material'' damage. ``Material'' means functional impairment of 
surface lands, features, structures or facilities; any physical change 
that has a significant adverse impact on the affected land's capability 
to support or reasonably foreseeable uses or causes significant loss in 
production or income; or any significant change in the condition, 
appearance or utility of any structure from its pre-subsidence 
condition.
    38-2-16.2.c.2 is amended by adding a final sentence to provide that 
the provision applies only to subsidence related damage caused by 
underground mining activities conducted after October 24, 1992.
    38-2-16.2.c.3 is added to provide that if alleged subsidence damage 
occurs to protected structures as a result of earth movement within the 
area in which a pre-subsidence structural survey is required, a 
rebuttable presumption exists that the underground mining operation 
caused the damage.
    38-2-16.2.c.3.A is added to provide that if the permittee was 
denied access to conduct a pre-subsidence survey, no presumption of 
causation will exist.
    38-2-16-2.c.3.B. This provision is added to provide that the 
presumption will be rebutted if, for example, the evidence establishes 
that: the damage predated the mining in question; the damage was 
proximately caused by some other factors or was not proximately caused 
by subsidence; or the damage occurred outside the surface area within 
which subsidence was actually caused by the mining in question.
    38-2-16.2.c.3.C. This provision is added to provide that in any 
determination whether damage to protected structures was caused by 
subsidence from underground mining, all relevant and reasonably 
available information will be considered by the director.
    38-2-16.2.c.4. This provision is added to provide that when 
subsidence related material damage occurs to lands, structures, or 
water supply, and if the director issues violation(s), the director may 
extend the 90-day abatement period to complete repairs, but shall not 
exceed one year from date of violation notice. Provided, however, the 
permittee demonstrates, in writing, that it would be unreasonable to 
complete repairs within the 90-day abatement period. If extended beyond 
90 days, as part of the remedial measures, the permittee shall post an 
escrow bond to cover the estimated costs of repairs.
    38-2-20.1.e is added to provide that the permittee may request an 
on-site compliance conference, and out the requirements related to such 
a conference. Neither the holding of a compliance conference nor any 
opinion given by an authorized representative of the director at a 
conference shall affect the following:

[[Page 31546]]

    38-2-20.1.e.1. Any rights or obligations of the director or by the 
permittee with respect to any inspection, notice of violation, or 
cessation order, whether prior to or subsequent to the compliance 
conference; or
    38-2-20.1.e.2. The validity of any notice of violation or cessation 
order issued with any condition or practice reviewed at the compliance 
conference.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comments on the proposed amendment submitted by the State of 
West Virginia to its permanent regulatory program. Specifically, OSM is 
seeking comments on the revision to the State's Code and regulations 
that were submitted on April 28, 1997, and amended on May 14, 1997. 
Comments should address whether the proposed amendment satisfies the 
applicable program approval 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 issue 
proposed in this notice 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 comment at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by close of 
business on June 25, 1997. If no one requests an opportunity to comment 
at a public hearing, 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 responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to comment have been heard. Persons in the audience 
who have not been scheduled to comment, and who wish to do so, will be 
heard following those scheduled. The hearing will end after all persons 
scheduled to comment and persons present in the audience who wish to 
comment have been heard.

Public Meeting

    If only one person requests an opportunity to comment at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendments may request a meeting at the Charleston Field Office 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 part 
of the Administrative Record.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

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 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 or any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 30, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-15008 Filed 6-9-97; 8:45 am]
BILLING CODE 4310-05-M