[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Proposed Rules]
[Pages 8891-8893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4471]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948


West Virginia Permanent Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is proposing to clarify three final rule decisions, to 
remove a required amendment, and to vacate its retroactive approval of 
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 
clarifications concern West Virginia statutes pertaining to 
administrative appeals and the State Environmental Quality Board, and 
the required amendment pertains to termination of jurisdiction. The 
proposed actions are intended to comply with a settlement agreement 
reached in West Virginia Mining and Reclamation Association (WVMRA) v. 
Babbitt, No. 2: 96-0371 (S.D. W.Va.).

DATES: Written comments must be received on or before 4:00 p.m. on 
March 25, 1998. If requested, a public hearing on the proposed 
amendments will be held at 1:00 p.m. on March 20, 1998. Requests to 
present oral testimony at the hearing must be received on or before 
4:00 p.m. on March 10, 1998.

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 West Virginia program, the program amendment decision 
that is the subject of this notice, 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.

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 amendments that are the subject of this 
notice 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 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 (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations 
(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on 
durable rock fills on August 16, 1995, (60 FR 42437-42443) and approved 
with exceptions, the proposed revisions on bonding on October 4, 1995, 
(60 FR 51900-51918). OSM approved, with exceptions, the remaining 
amendments on February 21, 1996, (61 FR 6511-6537). See 30 CFR 948.15 
for the provisions that were partially approved by OSM. See 30 CFR 
948.16 for required amendments.
    On April 18, 1996, the WVMRA, the West Virginia Coal Association, 
and the Tri-State Coal Operators Association, Inc. filed an appeal, 
pursuant to section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), 
challenging certain OSM decisions contained in the February 21, 1996, 
Federal Register Notice, including the decision to make approval of the 
amendment retroactive. (Administrative Record Number WV-1027) On 
October 29, 1997, the parties reached a settlement agreement with 
respect to six of the seven counts contained in the above referenced 
case. (Administrative Record Number WV-1077). The other count, 
pertaining to the use of passive treatment systems after final bond 
release, was decided by the United States District Court for the 
Southern District of West Virginia in OSM's favor. See WVMRA v. 
Babbitt, No. 2: 96-0371 (S.D. W.Va. July 11, 1997) (Administrative 
Record Number WV-1072). This rulemaking is proposed in order that OSM 
may fulfill its obligations with respect to five of the six counts of 
the appeal which are addressed by settlement agreement. The remaining 
count addressed in the settlement agreement, pertaining to the

[[Page 8892]]

windrowing of materials on the downslope in steep slope areas, is the 
subject of another proposed rulemaking, announced in the June 10, 1997, 
Federal Register. See 62 FR 31543, 32545.

1. Proposed Clarifications

Section 22B-1-7(d)  Administrative Appeals
    As announced in the Federal Register on February 21, 1996 (61 FR at 
6516, 6536) OSM did not approve language at Sec. 22B-1-7(d) concerning 
allowing temporary relief where the appellant demonstrates that the 
executed decision appealed from will result in the appellant suffering 
an ``unjust hardship.'' OSM stated that the provision was disapproved 
because the exception is inconsistent with SMCRA section 514(d) and 
525(c). Further, OSM required, at 30 CFR 948.16(nnn), that Sec. 22B-1-
7(d) be amended to be consistent with SMCRA sections 514(d) and 525(c). 
In accordance with the settlement agreement in WVMRA v. Babbitt, supra, 
OSM is proposing to clarify its February 21, 1996, decision by stating 
that Sec. 22B-1-7(d) is not approved only to the extent that it 
includes unjust hardship as a criterion to support the granting of 
temporary relief from an order or other decision issued under Chapter 
22, Article 3 of the West Virginia Code, which is the West Virginia 
counterpart to SMCRA. OSM is also proposing to revise the required 
amendment at 30 CFR 948.16(nnn) to require West Virginia to amend its 
program to remove unjust hardship as a criterion to support the 
granting of temporary relief from an order or other decision issued 
under Chapter 22, Article 3 of the West Virginia Code.
Section 22B-1-7(h)  Administrative Appeals
    As announced in the Federal Register on February 21, 1996 (61 FR at 
6516, 6536), OSM did not approve language at Sec. 22B-1-7(h) to the 
extent that the provision would allow the West Virginia Surface Mining 
Board to decline to order an operator to treat or control discharges 
due to economic considerations. In addition, OSM required, at 30 CFR 
948.16(ooo), that the State further amend Sec. 22B-1-7(h) to be no less 
stringent than SMCRA section 515(b)10 and no less effective than the 
Federal regulations at 30 CFR 816.42 by requiring that discharges be 
controlled or treated without regard to economic feasibility.
    In accordance with the settlement agreement in WVMRA v. Babbitt, 
supra, OSM is proposing to clarify that Sec. 22B-1-7(h) is approved 
only to the extent that it references Article 3, Chapter 22 of the West 
Virginia Code. OSM is also proposing to revise the required amendment, 
at 30 CFR 948.16(ooo), to require West Virginia to amend its program by 
removing the reference, in Sec. 22B-1-7(h), to Article 3, Chapter 22.
Section 22B-3-4  Environmental Quality Board
    As announced in the Federal Register on February 21, 1996 (61 FR at 
6517), OSM approved the provisions at Sec. 22B-3-4 concerning the 
Environmental Quality Board's rulemaking authority. Under the State's 
S.B.287, the Board is authorized, with certain restrictions, to 
promulgate procedural rules granting site-specific variances for water 
quality standards for coal remining operations. In approving the 
provision, OSM also stated that any such procedural rules that grant 
variances must be submitted to OSM for approval prior to their 
implementation.
    In accordance with the settlement agreement in WVMRA v. Babbitt, 
supra, OSM is proposing to clarify that it does not have approval 
authority over rules developed by the Environmental Quality Board under 
the authority of the Clean Water Act. Therefore, OSM is stating that 
the Environmental Quality Board is not required to submit to OSM for 
approval procedural rules for the implementation of site specific 
variances for water quality standards for remining operations.

2. Proposed Amendment Findings Revisions

CSR 38-2-1.2(c)(1)  Termination of Jurisdiction
    As announced in the Federal Register on February 21, 1996 (61 FR at 
6517, 6536), OSM found Sec. 38-2-1.2(c)(1) to be less effective than 
the Federal regulations at 30 CFR 700.11(d)(1)(i) to the extent that 
subsection (c)(1) does not require compliance with the Federal initial 
program regulations at Subchapter B or the West Virginia permanent 
regulatory program as a prerequisite to the termination of jurisdiction 
over an initial program site. In addition, OSM required, at 30 CFR 
948.16(ppp), that the State further amend subsection (c)(1) to require 
compliance with the Federal initial program regulations at Subchapter B 
or the West Virginia permanent regulatory program regulations as a 
prerequisite to the termination of jurisdiction over an initial program 
site.
    By letter dated December 12, 1996 (Administrative Record Number WV-
1052), the West Virginia Division of Environmental Protection (WVDEP) 
stated its commitment to require that initial program sites in West 
Virginia meet the West Virginia program's permanent program 
requirements as a precondition of the termination of regulatory 
jurisdiction over such sites.
    In recognition of the acknowledgment contained in the December 12, 
1996, WVDEP letter, and in accordance with the settlement agreement in 
WVMRA v. Babbitt, supra, OSM is proposing to accept the WVDEP December 
12, 1996 letter as satisfying the requirements of 30 CFR 
700.11(d)(1)(i), and is proposing to delete the required amendment 
codified at 30 CFR 948.16(ppp).

3. Vacating Retroactive Approval of Amendments

    As published in the Federal Register on February 21, 1996 (61 FR 
6533), OSM stated that with respect to laws and regulations being 
approved in the notice, that OSM was making the effective date of the 
approval retroactive to the date upon which each provision took effect 
in West Virginia for purposes of State law. However, as stated in the 
settlement agreement in WVMRA v. Babbitt, supra, OSM has agreed to 
vacate the retroactive effect of its approval of the program amendment 
which was the subject of the February 21, 1996, Federal Register 
notice. Therefore, OSM is hereby announcing its intention to vacate the 
retroactive approval of the amendments discussed and approved in the 
February 21, 1996, Federal Register notice, 61 FR 6511, 6535. In 
addition, OSM is proposing to change the effective dates of all the 
amendments approved in the February 21, 1996 notice to February 21, 
1996.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comments on the proposed clarifications, the proposed removal 
of the required amendment codified at 39 CFR 948.16(ppp), and the 
proposed change of the effective dates of the amendments currently 
codified at 30 CFR 948.15(p)(1) to February 21, 1996. Comments should 
address whether the proposed clarifications, the proposed deletion of 
the required amendment at 30 CFR 948.16(ppp), and the change of the 
effective dates of the amendments codified at 30 CFR 948.15(p)(1) to 
February 21, 1996, satisfy the applicable program approval criteria of 
30 CFR 732.15. If the clarifications, deletion of the required 
amendment, and change of the effective date of approval are deemed 
adequate, they will become part of the West Virginia program.

[[Page 8893]]

Written Comments

    Written comments should be specific, pertain only to the issues 
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 testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by the close of 
business on March 10, 1998. 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. Persons 
wishing to meet with OSM representatives to discuss the proposed 
clarification, removal of the required amendment, or change in the 
effective dates of the approval 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 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 the 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.

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: February 12, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-4471 Filed 2-20-98; 8:45 am]
BILLING CODE 4310-05-M