[Federal Register Volume 63, Number 114 (Monday, June 15, 1998)]
[Proposed Rules]
[Pages 32632-32635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15761]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-080-FOR]


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 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 consists of the revisions to the 
West Virginia Surface Mining Reclamation Regulations. The amendments 
are intended to improve the operational efficiency of the West Virginia 
program.

DATES: Written comments must be received on or before 4:00 p.m. July 
15, 1998. If requested, a public hearing on the proposed amendments 
will be held at 1:00 p.m. on July 10, 1998. Requests to present oral 
testimony at the hearing must be received on or before 4:00 p.m. on 
June 30, 1998.


[[Page 32633]]


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. Each requester may receive one free copy of 
the proposed changes 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 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

    By letter dated May 11, 1998 (Administrative Record Number WV 
1086), the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to its approved permanent regulatory program 
pursuant to the Federal regulations at 30 CFR 732.17(b). The recent 
West Virginia Legislative session amended CSR 38-2 of the State's 
Surface Mining Reclamation Regulations, and the West Virginia Governor 
signed the amendments on April 12, 1998.
    The proposed amendments are identified below.

1. CSR 38-2-2  Definitions

    Subsection 2.25 The definition of ``Coal Remining Operation'' is 
amended to mean a coal mining operation on lands which would be 
eligible for expenditures under section four, article two of chapter 
twenty-two.
    Subsection 2.102 The definition of ``Remined Area'' is amended to 
mean only that area of any coal remining operation.
    The WVDEP explained that these changes were done to correspond with 
the Energy Policy Act of 1992, Public Law 102-846. the WVDEP stated 
that the changes are consistent with changes to Chapter 22, Article 3 
of the Code of West Virginia, which were made during the last 
legislative session.

2. CSR 38-2-3.14  Removal of Abandoned Coal Refuse Disposal Piles

    Subsection 3.14.a is amended by deleting the terms ``special 
permit'' and in their place adding the term ``reclamation contract.'' 
Also, the words ``permit application'' are deleted and replaced by the 
word ``request.''
    Subsection 3.14.b is amended by deleting the phrase ``an 
application for a special permit,'' and adding in its place the phrase 
``a request for a reclamation contract.''
    Subsection 3.14.b.1 is amended by excluding subsections 3.1.c., d., 
k., n., and o. from the requirement that all information required by 
subsection 3.1 should be included in a request for a reclamation 
contract under subsection 3.14.b. Subsection 3.14.b.2 is amended by 
reducing the comment period from 30 days to 10 days.
    Subsection 3.14.b.3 is amended by deleting the phrase ``and where 
applicable subsection 3.3 of the regulations.''
    Subsection 3.14.b.4.E is amended by deleting the existing language 
and adding in its place the words, ``Permits or approvals as necessary 
from the appropriate environmental agencies or other agencies.''
    Subsection 3.14.b.7 is deleted.
    Subsections 3.14.b.8 through 3.14.b.15 have been renumbered as 
3.14.b.7 through 3.14.b.14.
    Subsection 3.14.d is amended by deleting the existing language and 
adding in its place the words, ``Insurance and filing fee in accordance 
with subsection b. Of Section 28 of the Act.''
    Subsection 3.14.e is amended to read, ``Removal operations 
permitted under this subsection shall be subject to paragraph 1., 
subsection 22.5 of this rule and all other applicable performance 
standards of the Act and the reclamation contract.'' Subsection 3.14.f 
is added to read as follows: ``All persons conducting removal of 
abandoned coal disposal piles under a reclamation contract shall have 
on site, a copy of the written approval for such activities issued by 
the Director.''
    In its submittal, the WVDEP stated that changes to Section 3 will 
allow the reclamation of coal refuse sites by a reclamation contract 
that normally does not require any state expenditure. The WVDEP stated 
that it believes that totally removing a refuse pile constitutes 
reclamation. Further the WVDEP stated that the amendments are 
consistent with the change to Chapter 22, Article 3 Section 28 of the 
Code of West Virginia which occurred in the last legislative session.

3. CSR 38-2-3.32  Findings--Permit Issuance

    Subsection 3.32.d.12 is amended by deleting the reference to 
subsection 14.16, and adding in its place a reference to subsection 24. 
In addition, the words ``and prior to August 3, 1977'' are deleted and 
replaced by the words, ``would be eligible for expenditures under 
Section 4, Article 2 of Chapter 22.
    Subsection 3.32.g is added to read as follows. ``The prohibition of 
subsection c. shall not apply to a permit application due to any 
violation resulting from an unanticipated event or condition at a 
surface mine eligible for remining held by the applicant.''
    In its submittal, the WVDEP stated that this change is due to a new 
Federal definition of ``remining'' which basically states that any site 
eligible for abandoned mined lands funding is also eligible for 
remining.

4. CSR 18-2-14.14.a.1  Disposal of Excess Spoil

    This subsection is amended by adding language to allow excess spoil 
to be deposited on abandoned mine lands and/or forfeited mine lands 
under a

[[Page 32634]]

reclamation contract pursuant to Section 28 of the Act and this rule. 
The new language further provides that it is the permittee's 
responsibility to obtain right of entry and any necessary approvals 
from the appropriate environmental agencies or other agencies.
    The WVDEP stated that these changes will allow the director to 
issue no-cost reclamation contracts to a permittee to reclaim abandoned 
and forfeited sites.

5. CSR 38-2-14.16 Is Being Moved to New Section CSR 38-2-24

6. CSR 38-2-14.17 Is Redesignated as CSR 38-2-14.16

7. CSR 38-2-14-18 Is Redesignated as CSR 38-2-14.17

8. CSR 38-1-14.19 Is Redesignated as CSR 38-2-14.18

    Old subsection 14.19.d is deleted because it conflicts with CSR 38-
2-8.2.e that was added during the last legislative session.

9. CSR 38-2-22.5.1  Removal of Abandoned Coal Refuse Piles

    Subsection 22.51 is amended by deleting the words ``special 
permit'' and adding in their place the words ``reclamation contract.''
    The WVDEP explained that the changes to Section 3 will allow the 
reclamation of coal refuse sites by a reclamation contract that 
normally does not require any state expenditure.

10. CSR 38-2-23  Special Authorization for Coal Extraction as an 
Incidental Part of Development of Land for Commercial, Residential, or 
Civic Use

    This entire section is new language. This section would allow 
special authorization for coal extraction as an incidental part of 
development of land for commercial, residential, industrial, or civic 
use. The section contains provisions for applicant information, site 
development and sampling information; provisions for approval of Notice 
of Intent for coal extraction as an incidental part of development of 
land for commercial, residential, or civic use; performance standards; 
expiration of a notice of intent coal extraction as an incidental part 
of development; escrow release; notice on site; and public records.
    The WVDEP explained that the new language is intended to implement 
new code provisions that allow the director to give special 
authorization for coal extraction as an incidental part of development 
of land for commercial, residential, industrial, or civic use.

11. CSR 38-2-24  Performance Standards Applicable Only to Remining 
Operations

    This entire section is new. However, subsection 24.1 was previously 
14.16; subsection 24.2.a was previously 14.16.m; subsection 24.3 was 
previously 14.16.n; subsection 24.2.b is new language; and subsection 
24.4 is new language.
    Subsection 24.1 provides for backfilling, remining, and grading of 
previously mined areas. Subsection 24.2 provides for revegetation of 
coal remining operations. Subsection 24.3 provides for water quality of 
coal remining operations. Subsection 24.4 provides the requirements for 
release of bonds for coal remining operations.
    The WVDEP stated that subsection 24.2.b is due to a new Federal 
remining regulation which basically states that successful revegetation 
shall be for a period of not less than two growing seasons. Subsection 
24.4 will allow for release of the land reclamation bond if the post-
remining water quality discharging from the site is equal to or better 
than pre-remining water quality.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comments on the proposed amendments to the West Virginia 
program that were submitted on May 11, 1998. 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 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 June 30, 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.

[[Page 32635]]

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 
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: June 4, 1998.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 98-15761 Filed 6-12-98; 8:45 am]
BILLING CODE 4310-05-M