[Federal Register Volume 64, Number 93 (Friday, May 14, 1999)]
[Rules and Regulations]
[Pages 26288-26295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12212]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; decision on amendment.

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SUMMARY: OSM is announcing that it is not approving an amendment to the 
West Virginia permanent regulatory program under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The amendment would have 
revised the West Virginia Surface Coal Mining and Reclamation Act, and 
concerns fish and wildlife habitat and recreation lands as a postmining 
land use for mountaintop removal operations with variances from 
approximate original contour.

EFFECTIVE DATE: May 14, 1999.

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
II. Submission of the Amendment
III. Director's Finding
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. You can find background information 
on the West Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of the approval in the 
January 21, 1981, Federal Register (46 FR 5915-5956). You can find 
later actions concerning the West Virginia program and previous 
amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated April 28, 1997 (Administrative Record Number WV-
1056), the West Virginia Division of 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 contained revisions to section 38-2-1 et seq. 
of the West Virginia Surface Mining Reclamation Regulations [Code of 
State Regulations (CSR)] and to section 22-3-1 et seq. of the West 
Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). The 
amendment mainly consisted of changes to implement the

[[Page 26289]]

standards of the Federal Energy Policy Act of 1992, and was intended to 
revise the State program to be consistent with the counterpart Federal 
provisions.
    An announcement concerning the initial amendment was published in 
the June 10, 1997, Federal Register (62 FR 31543-31546). A correction 
notice was published on June 23, 1997 (62 FR 33785), which clarified 
that the public comment period closed on July 10, 1997. No one 
requested an opportunity to speak at a public hearing, so none was 
held.
    We published our approval, with certain exceptions, of the West 
Virginia amendment in the Federal Register on February 9, 1999 (64 FR 
6201-6218). In that rule, we deferred a decision on an amendment to 
section 22-3-13(c)(3) of the WVSCMRA. Section 22-3-13(c)(3) was amended 
to allow the approval of permits involving a variance from restoring 
approximate original contour (AOC) for mountaintop removal operations 
when the postmining land use includes fish and wildlife habitat and 
recreation lands.
    At the same time we were reviewing the amendment to section 22-3-
13(c)(3), our Charleston Field Office conducted an evaluation and 
prepared a draft oversight report on portions of the West Virginia 
program. The draft report was focused, in part, on postmining land uses 
pertaining to mountaintop mining operations. We requested comments on 
the draft report, and at the same time we reopened the public comment 
period on the amendment to section 22-3-13(c)(3) because we expected 
that some of the comments received concerning the oversight report 
would address the proposed amendment to section 22-3-13(c)(3) (December 
10, 1998, 63 FR 68221). The comment period on the draft oversight 
report closed on February 12, 1999. Therefore, we deferred a decision 
on section 22-3-13(c)(3) until after we could review the public 
comments that were received in response to the evaluation report.

III. Director's Finding

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, is our finding concerning the proposed amendment.
    The West Virginia legislature amended section 22-3-13(c)(3) of the 
WVSCMRA to allow the approval of permits involving a variance from 
restoring approximate original contour (AOC) for mountaintop removal 
operations when the postmining land use includes ``fish and wildlife 
habitat and recreation lands.''
    Mountaintop removal operations seeking a variance from the 
requirement to restore the affected land to AOC must comply with 
section 515(c)(3) of SMCRA, which states that:

    In cases where an industrial, commercial, agricultural, 
residential or public facility (including recreational facilities) 
use is proposed or the postmining use of the affected land, the 
regulatory authority may grant a permit for a surface mining 
operation of the nature described in subsection (c)(2) [concerning 
mountaintop removal operations] where--
    (A) After consultation with the appropriate land use planning 
agencies, if any, the proposed postmining land use is deemed to 
constitute an equal or better economic or public use of the affected 
land, as compared with premining use;
    (B) The applicant presents specific plans for the proposed 
postmining land use and appropriate assurances that such use will 
be--
    (i) Compatible with adjacent land uses;
    (ii) Obtainable according to data regarding expected need and 
market;
    (iii) Assured of investment in necessary public facilities;
    (iv) Supported by commitments from public agencies where 
appropriate;
    (v) Practicable with respect to private financial capability for 
completion of the proposed use;
    (vi) Planned pursuant to a schedule attached to the reclamation 
plan so as to integrate the mining operation and reclamation with 
the postmining land use; and
    (vii) Designed by a registered engineer in conformance with 
professional standards established to assure the stability, 
drainage, and configuration necessary for the intended use of the 
site.

    The Federal regulations at 30 CFR 785.14(c)(1) concerning 
mountaintop removal mining mirror the SMCRA provisions at section 
515(c)(3) that are quoted above. Neither of these Federal provisions 
authorizes ``fish and wildlife habitat and recreation lands'' as a 
postmining land use that qualifies for the AOC variance needed by 
mountaintop removal operations.
    The land use category of ``fish and wildlife habitat'' is defined 
at 30 CFR 701.5 under the definition of ``land use'' as land 
``dedicated wholly or partially to the production, protection or 
management of species of fish or wildlife.'' A variance from achieving 
AOC is simply not needed for the management of species of fish or 
wildlife, because fish and wildlife habitats do not require flat or 
rolling terrain, which is created by mountaintop removal operations, in 
order to be successful. (For an analogous discussion that concludes 
that silviculture is not a postmining land use authorized for 
mountaintop removal operations requesting an AOC variance, see the 
preamble to the March 13, 1979 Federal Register document, 44 FR 14901, 
15288-15289). Therefore, the land use of ``fish and wildlife habitat'' 
is not authorized as a postmining land use that qualifies for an AOC 
variance for mountaintop removal operations.
    If we interpret the phrase ``fish and wildlife and recreation 
lands'' in accordance with its plain meaning, we conclude that it 
constitutes one postmining land use, with both ``fish and wildlife'' 
and ``recreation lands'' components. Given this construction, the 
entire phrase should be disapproved, because operations proposing fish 
and wildlife postmining land uses do not qualify for AOC variances 
under SMCRA. However, one could conceivably construe the phrase to 
create two separate, additional postmining land uses which would 
qualify for the AOC variance.
    OSM has reason to believe that the State intends this term to 
include two separate uses. This interpretation is based on the fact 
that the State further defines ``fish and wildlife habitat and 
recreation lands'' at CSR 38-2-7.2.k as ``wetlands, fish and wildlife 
habitat, and areas managed primarily for fish and wildlife or 
recreation'' (emphasis added). Therefore, we have chosen to discuss the 
``recreation lands'' use separately, in order to ascertain whether we 
could reach a different decision. For the reasons discussed below, 
however, we find we must still disapprove the proposed amendment in its 
entirety.
    The land use category of ``recreation lands'' that is proposed by 
West Virginia is not specifically defined in the Federal regulations. 
However, the land use category of ``recreation'' is defined at 30 CFR 
701.5 under the definition of ``land use.'' ``Recreation'' land use 
means ``land used for public or private leisure-time activities, 
including developed recreation facilities such as parks, camps, and 
amusement areas, as well as areas for less intensive uses such as 
hiking, canoeing, and other undeveloped recreational uses.'' SMCRA at 
section 515(c)(3) and the implementing Federal regulations at 30 CFR 
785.14(c)(1) specifically authorize ``public facilities (including 
recreation facilities)'' as a postmining land use which qualifies for 
the variance from AOC for mountaintop removal mining. The term ``public 
facilities (including recreation facilities)'' bears some resemblance 
to, but is not the same as, the Federal regulatory definition of the 
``recreation'' land use. To qualify for the variance, the recreation 
facilities must be ``developed,'' and must also be ``public'' in 
nature. Specifically, SMCRA's use of the term ``public

[[Page 26290]]

facility (including recreational facilities) use'at section 515(c)(3) 
means that, unlike the definition of ``recreation'' at 30 CFR 701.5 
under ``land use,'' the use is limited to applications of public use. 
That is, a purely private postmining land use does not qualify under 
SMCRA for a mountaintop removal AOC variance.
    In addition, SMCRA at section 515(c)(3) specifically uses the term 
``facilities.'' The term ``facilities'' means that various structures 
that support the public or recreational use of the land are required to 
be developed. For example, the postmining land use of ``public facility 
(including recreational facilities)'' requires a structure or 
development of some sort created by man that the public is able to use. 
A ``public facility'' might include developments such as governmental 
buildings, prisons, schools, reservoirs, or airports. ``Recreational 
facilities'' might include developed recreational facilities such as 
parks, camps, and amusement areas, as well as areas developed for uses 
such as hiking, canoeing, and other less intensive recreational uses. 
The designs of some of these recreational facilities, including the 
less intensive recreational facilities (for example, hiking and camping 
recreational facilities), could incorporate fish and wildlife habitat 
as an integral component of the recreation facility. However, even the 
less intensive recreation facilities would require structures or 
developments to support the public uses. For example, less intensive 
recreation facilities such as those for hiking and camping may require 
access roads, parking lots, rest rooms, developed trails, boat ramps, 
camping shelters, etc.
    The term ``recreation lands'' proposed by the State may not be 
inconsistent with the Federal term ``public facility (including 
recreational facilities) use'' as discussed above. However, the West 
Virginia program at section 22-3-13(c)(3) of the WVSCMRA currently 
authorizes a postmining land use of ``public use'' as a postmining land 
use for an AOC variance for mountaintop removal operations. The State's 
authorization of a ``public use'' postmining land use is West 
Virginia's counterpart to the ``public facility (including recreational 
facilities)'' land use which qualifies for an AOC variance pursuant to 
section 515(c)(3) of SMCRA. That is, the State term ``public use'' 
already authorizes a postmining land use of ``public facility 
(including recreational facilities)'' for an AOC variance for 
mountaintop removal operations. Therefore, the proposed postmining land 
use of ``recreation lands'' is not necessary, as the currently approved 
term ``public use'' already authorizes ``public facility (including 
recreational facilities).'' When OSM initially approved West Virginia's 
term ``public use'' (46 FR 5915, January 21, 1981) it did so without 
discussion. If OSM had intended its approval of the term ``public use'' 
to mean something other than the Federal term ``public facility 
(including recreation facilities)'' it would have discussed its 
rationale in the preamble. Since such a discussion is lacking, we 
conclude that when it approved West Virginia's term ``public use,'' OSM 
interpreted that term to be equivalent to the Federal term ``public 
facility (including recreation facilities).'' However, we also 
recognize that the difference in terms has led to confusion concerning 
the meaning of the State's term ``public use.'' Therefore, we are 
requiring that the term ``public use'' at section 22-3-13(c)(3) be 
amended to include the term ``facility'' and to further clarify that 
the State term will be interpreted the same as ``public facility 
(including recreation facilities) use'' at section 515(c)(3).
    Based on the discussion above, we are not approving the proposed 
language ``or fish and wildlife habitat and recreation lands.'' The 
addition of the term ``fish and wildlife habitat'' would render the 
West Virginia program less stringent than SMCRA, which does not 
authorize ``fish and wildlife habitat'' as a postmining land use that 
qualifies for an AOC variance for mountaintop removal operations. The 
term ``recreation lands'' need not be added to the West Virginia 
program, because the currently approved ``public use'' variance 
corresponds to the Federal authorization of ``public facility 
(including recreational facilities) use.'' Moreover, some of the public 
facilities or recreational facilities which could be approved under 
section 22-3-13(c)(3) as ``public uses'' could incorporate ``fish and 
wildlife habitat'' as an integral component of the design of the public 
or recreation facility. Therefore, OSM is requiring that section 22-3-
13(c)(3) be amended to remove the phrase ``or fish and wildlife habitat 
and recreation lands.'' Finally, as stated above, we are requiring that 
the term ``public use'' at section 22-3-13(c)(3) be amended to include 
the term ``facility'' and further clarify that the term will be 
interpreted the same as ``public facility (including recreation 
facilities) use'' at SMCRA section 515(c)(3).

IV. Summary and Disposition of Comments

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the West Virginia program. Except for the U.S. 
Environmental Protection Agency as discussed below, no other Federal 
agencies commented on the amendment relating to ``fish and wildlife 
habitat and recreation lands.''

Public Comments

    We solicited public comments on several different occasions. The 
following is a summary and disposition of the public comments received 
on the amendment.
1. General Comments Against Approval
    Comments: Several commenters made general statements against 
approval of the proposed amendment. One commenter suggested that we 
defer our decision concerning the proposed postmining land use until 
after the Environmental Protection Agency (EPA) completes its 
environmental impact statement on mountaintop removal operations. The 
commenter also urged OSM to not allow it as an approved postmining land 
use during the interim period.
    One commenter said that fish and wildlife habitat has several 
faults. On the plus side, however, allowing the creation of wetlands on 
mined areas was a step in a positive direction. But, the commenter 
asserted, fish and wildlife habitat has been used which included non 
native, invasive plants.
    One commenter stated that fish and wildlife postmining land use 
should not be approved, because the language and legislative history of 
SMCRA demonstrate that Congress intended to restrict permissible 
postmining land uses to socially beneficial and developed uses, not 
passive and undeveloped uses such as ``fish and wildlife habitat and 
recreation lands.'' The commenter asserted that the ``fish and wildlife 
habitat and recreation lands'' use is not socially beneficial; it does 
not require any development; it does not require any public facilities; 
and it is not a use which otherwise might not be available.
    Further, one of these commenters did not support West Virginia's 
contention, via the amendment, that ``fish and wildlife habitat and 
recreation lands'' is an appropriate postmining land use.
    Another commenter stated that allowance of ill-defined land uses 
such as ``fish and wildlife habitat,'' rather

[[Page 26291]]

than conformance to the specific requirements of the law, results in 
improper off-site disposal as a matter of course, rather than as an 
exception to the rule of on-bench retention.
    Response: In response to these comments, and for the reasons 
discussed in the Finding above, we have not approved this amendment.
2. Fish and Wildlife Habitat
    Comments: A commenter supported the amendment and stated that fish 
and wildlife habitat clearly should qualify as a recreational use and 
consequently, a public use. From an environmental standpoint, the 
commenter stated, you couldn't have a better postmining land use for 
the environment. Though not one of the four listed postmining land uses 
in SMCRA, the commenter noted, there clearly isn't any prohibition of 
this as a valid postmining land use, nor are there any environmentally 
sound arguments for precluding it as a postmining land use. The 
commenter further stated that the State of Kentucky has had a 
postmining land use of ``fish and wildlife'' as part of its regulatory 
program since 1991.
    Response: In response, we disagree with the statement that there 
clearly is not any prohibition of ``fish and wildlife habitat'' as a 
valid postmining land use. The fact that ``fish and wildlife habitat'' 
is not listed at SMCRA section 515(c)(3) as an allowable postmining 
land use for mountaintop-removal operations is a clear prohibition of 
``fish and wildlife habitat'' as a postmining land use under SMCRA. 
While we have no doubt about the value of ``fish and wildlife habitat'' 
in the natural environment, and as a postmining land use in a mining 
situation where the site is to be restored to approximate original 
contour, ``fish and wildlife habitat'' is not an approvable postmining 
land use for mountaintop removal operations with variances from AOC 
under SMCRA section 515(c)(3). Finally, Kentucky has not had an 
approved postmining land use of ``fish and wildlife habitat'' as part 
of its regulatory program since 1991. Rather, the Kentucky program was 
authorizing ``fish and wildlife habitat'' as a postmining land use for 
mountaintop-removal operations with AOC variances under an internal 
memorandum dated May 29, 1991, that was never approved by OSM. The 
State no longer implements that memorandum.
3. Public Use Versus Public Facility Use
    Comments: A few commenters noted that the West Virginia program 
authorizes ``public use'' as a valid postmining land use for an AOC 
variance for mountaintop removal operations, whereas SMCRA authorizes 
``public facility use.'' One commenter said that the West Virginia 
program must be brought into conformity with SMCRA. Another commenter 
said that ``any public use'' is too broad a definition and provides a 
loophole for mining companies. Still another commenter stated that the 
rational response would be to clarify this matter through a policy 
statement, with a provision to allow maximum input from stakeholders.
    A commenter asserted that while the word ``facility'' may mean that 
some type of structure or appurtenance must accompany the public use, 
this is not the only permissible interpretation of the term ``public 
facility.'' For example, the commenter asserted, land that is reclaimed 
to support the propagation and preservation of wildlife, or leisure 
activities such as hiking, hunting or camping, are public facilities. 
Similarly, dedicated open space used as a park is a public facility 
even in the absence of buildings or other structures. The commenter 
also stated that the ``public'character of the land use should not be 
interpreted to be unduly narrow. The commenter stated that OSM has 
previously addressed the question of the public nature of a land use 
for purposes of SMCRA's land use requirements. The commenter stated 
that OSM declined to adopt a regulatory definition of the term ``public 
use'' because public use ``overlaps more than one of the existing land 
use categories'' 48 FR 39893, September 1, 1983. In that notice, OSM 
stated that a use is public ``if it involves benefit, utility, or 
advantage to the public generally or any part of the public, as 
distinguished from benefitting an individual or a few specific 
individuals.'' The commenter stated that land that is reclaimed to 
support the propagation and preservation of wildlife is a public 
facility. Finally, the commenter stated that whether or not these uses 
would require buildings or other appurtenances is a question that would 
be evaluated in the context of the specific plans for the proposed 
postmining use.
    Response: In response, the one commenter is saying that all land 
uses have a public utility and that, for example, land that is 
reclaimed to support the propagation and preservation of wildlife is a 
public facility. We believe that such an interpretation only serves to 
render meaningless the term ``public facility (including recreational 
facilities) use.'' Although the commenter believes that the public 
character of the land use should not be interpreted too narrowly, we 
believe that to be meaningful, the term ``public facility (including 
recreational facilities) use'' must not be interpreted too broadly. 
Were it otherwise, instead of stating ``public facility (including 
recreational facilities) use'' SMCRA could merely state ``public use,'' 
or even ``fish and wildlife habitat use.'' Instead, SMCRA excludes 
``fish and wildlife habitat'' from the list of approvable postmining 
land uses at section 515(c)(3), and it specifically provides for 
``public facility (including recreational facilities) use.''
    SMCRA uses the term ``facility'' rather than the more generic term 
``public use'' in the approvable postmining land use of ``public 
facility (including recreational facilities) use.'' We interpret the 
term ``public facility (including recreational facilities) use'' to 
require some sort of structure or man-made development that actually 
supports or facilitates the public use. Such facilities could include 
community centers, buildings and runways as at an airport, 
amphitheatres or parking lots, rest rooms, developed hiking trails, 
boat ramps, camping shelters, or shooting ranges, etc. at less 
intensive public recreational facilities.
    Finally, we agree that the specific plans for each proposed 
postmining land use must be assessed on a case-by-case basis. However, 
as stated above, we believe that SMCRA requires that the various 
structures or developments discussed above be required for a postmining 
land use of ``public facility (including recreational facilities).''
    Comment: Another commenter contends that the term ``public use'' in 
the West Virginia program was approved by OSM and is not limited to 
``public recreation facilities.'' The commenter also asserted that 
because the State's regulations require that proposed postmining land 
uses of fish and wildlife habitat and recreation lands include a 
planting plan prepared or approved by a state mining biologist, whose 
job it is to encourage the propagation of ``desirable'' species, these 
plans necessarily confer public benefit.
    Response: In response, we are aware of the confusion that exists 
concerning the interpretation of West Virginia's term ``public use'' 
and the term ``public facility (including recreational facilities)'' in 
SMCRA at section 515(c)(3). As a consequence, and as discussed in the 
Finding above, we are requiring that the State further amend its 
program to clarify that its term ``public use'' means the same as the 
term ``public facility (including recreational facilities)'' at SMCRA 
section 515(c)(3). To be no less stringent

[[Page 26292]]

than SMCRA at section 515(c)(3), the West Virginia term ``public use'' 
at section 22-3-13(c)(3) of WVSCMRA must be equivalent to the Federal 
term ``public facility (including recreational facilities) use.''
4. Fish and Wildlife Habitat and Public Use
    Comments: One commenter supported the amendment and said that fish 
and wildlife habitat is a recreational use and consequently a public 
use. The commenter stated that ``public use'' as a postmining land use 
has been part of the approved West Virginia program since 1981. If 
public access is available to the site, the commenter asserted, then it 
would appear that the conditions of this land use category have been 
met.
    Another commenter agrees and stated that OSM issued a Federal 
permit in West Virginia effective August 23, 1993, that granted an AOC 
variance for ``fish and wildlife habitat.'' According to the commenter, 
the variance was apparently approved based on the rationale that the 
postmining fish and wildlife habitat development constituted a public 
use.
    Response: In response, we disagree with the commenters that assert 
that ``fish and wildlife habitat'' is a recreational use and 
consequently a public use. The ``fish and wildlife habitat'' postmining 
land use is defined at 30 CFR 701.5 under the definition of ``land 
use.'' It is defined as land dedicated wholly or partially, to the 
production, protection, or management of species of fish or wildlife. 
Sites that are not open to the public at all can meet this definition. 
Therefore, ``fish and wildlife habitat'' by itself cannot be considered 
a public use.
    The second commenter is referring to Permit Number OC-1 
(subsequently converted to OC-2). OSM approved a postmining land use of 
``public use'' for this permit. The permit was for a 20-acre surface 
mining operation at R.D. Bailey Lake in Mingo County. R.D. Bailey Lake 
is managed by the U.S. Army Corps of Engineers (COE). The COE specified 
that the reclaimed surface, especially the side facing the lake, dam 
and visitor center, should have some minor degree of slope to make it 
appear natural in relation to the general topography of the ridge 
areas. This was specified so that as viewed from the nearby public use 
areas of the lake the reclaimed area would be aesthetically pleasing. 
The COE agreed that at least three acres of the reclaimed site would be 
for water fowl habitat, which would consist of two acres of flat 
surface and a one-acre depression ranging from one to two feet in 
depth. All surface areas accessible by mowing equipment had to be 
graded and free of rock, boulders and other debris to facilitate mowing 
and other wildlife management activities. OSM agrees that fish and 
wildlife habitat was a component of the postmining land use. However, 
and more importantly, because the site was accessible to the public, 
managed by a governmental agency, and developed for public use, OSM was 
able to approve the permit with an AOC variance in accordance with the 
approved State program.
    Comment: Another commenter disagrees with the proposed amendment, 
and stated that the State has not demonstrated that a proposed 
postmining land use of ``fish and wildlife habitat and recreation 
lands'' is consistent with SMCRA. The commenter asserted that the 
State's justification of the proposed amendment, which states that 
``[b]ecause of the feral nature of wildlife the proposed program 
amendment conforms with CFR 824.11(a)(3) by providing enhanced 
recreational benefits in the form of additional wildlife for public 
hunting and observation,'' has no meaning. The commenter said that a 
public use is one that is available to the public permanently. The 
commenter stated that Congress did not intend to allow passive 
``recreational areas'' which are maintained and controlled by private 
companies, instead of public authorities. Hence, the public would have 
to own the land for it to qualify as a public use. The commenter also 
stated that a public use must allow unimpeded public access, must be a 
higher and better use than the pre-mining use, and the permit 
application must demonstrate that there is a need for the use and that 
financing is available for public projects such as golf courses, public 
parks, or swimming pools with public facilities. The public facilities, 
the commenter asserted, would also have to be owned by the public; 
otherwise the public nature of the enterprise could be revoked at any 
time after mining is complete.
    Response: In response, we agree with the commenter that ``fish and 
wildlife habitat'' is not, by itself, a public use. However, we 
disagree with the commenter's assertion that to qualify as a public 
facility the facility must be owned by the public. SMCRA section 
515(c)(3) does not require public ownership to qualify as a ``public 
facility (including recreational facilities)'' postmining land use. 
Neither does SMCRA section 515(c)(3) specify that an approved 
postmining land use be continued permanently, or that the use be higher 
and better than the premining use. Rather, section 515(c)(3)(A) 
requires that the proposed postmining land use be an equal or better 
economic or public use, as compared with the premining use. SMCRA 
section 515(c)(3) does, however, require that the reclaimed site be 
capable of supporting the postmining land use in accordance with the 
requirements at subsection 515(c)(3). SMCRA also specifies minimum 
requirements such as consultation with land use planning agencies, and 
specific plans and assurances that the proposed postmining land use 
will be compatible with adjacent land uses; obtainable according to 
data regarding expected need and market; assured of investment in 
necessary public facilities; supported by commitments from public 
agencies where appropriate; practicable with respect to private 
financial capability for completion of the proposed use; and planned 
pursuant to a schedule attached to the reclamation plan so as to 
integrate the mining operation and reclamation with the postmining land 
use.
    Comment: One commenter noted that SMCRA at section 515(c)(3) does 
not specifically authorize ``fish and wildlife habitat'' as a 
postmining land use for an AOC variance for mountaintop-removal 
operations. However, the commenter asserted, this is no impediment to 
those land uses falling within one of the general categories of land 
uses listed in the statute. This view is supported by another commenter 
who said that there is nothing which precludes a ``fish and wildlife 
habitat and recreation'' postmining land use from serving as the basis 
of an AOC variance ``so long as it can be viewed as a subset of one of 
the list of land uses set out in W.Va. Code Sec. 22-3-13(c)(3).''
    Moreover, the commenter said, the list of uses set forth in the 
Federal rules is not exhaustive or exclusive, but simply a ``minimum 
list that would meet the requirements of the Act.'' 44 FR at 14933.
    Response: In response, and as discussed above in the Finding, the 
design of a ``public facility (including recreational facilities) use'' 
could include areas that are designed as fish and wildlife habitat. 
This is not to say that ``fish and wildlife habitat'' is the primary 
postmining land use. Rather, fish and wildlife habitat may be a 
component of the design of a ``public facility (including recreational 
facilities) use.'' And, it is the ``public facility (including 
recreational facilities) use'' that must be the focus of the 
applicant's demonstration, and the regulatory authority's determination 
that the proposed postmining land use meets the requirements for an AOC 
variance.

[[Page 26293]]

    Comment: The commenter further stated that the specific land uses 
of ``fish and wildlife habitat and recreation lands'' comfortably fit 
within the general land use category of public facility/public use as 
set forth in both section 515(c)(3) and 515(e)(2) of SMCRA.
    Response: In response, we disagree with this comment. As discussed 
above in the Finding, the proposed postmining land use of ``fish and 
wildlife habitat and recreation lands'' is not approvable under SMCRA 
section 515(c)(3). ``Fish and wildlife habitat'' is not a listed 
postmining land use at section 515(c)(3) of SMCRA and, therefore, 
cannot be approved. In addition, the State's proposed term ``recreation 
lands'' is not approved because, to the extent it refers to public 
recreational facilities, it is redundant with the term ``public use'' 
that is already part of the approved West Virginia program. To the 
extent that it creates a more expansive category, which would include 
undeveloped recreational areas or purely private developed recreational 
facilities, it is inconsistent with section 515(c)(3) of SMCRA. As 
discussed in the Finding, we have concluded that when OSM approved the 
term ``public use'' in the State program, it did so with the 
interpretation that the term ``public use'' is no less stringent than 
the Federal standard, which allows only a ``public facility (including 
recreational facilities) use.''
    Comment: The commenter also asserted that there are public benefits 
from fish and wildlife habitat regardless of whether general access is 
provided.
    Response: In response, and as discussed in the Finding above, 
``fish and wildlife habitat'' is not an approvable postmining land use 
for mountaintop-removal operations with AOC variances. We believe that 
the approvable postmining land use of ``public facility (including 
recreation facility) use'' clearly contains a ``public'' component, and 
a requirement that the public's use of the land be facilitated. We 
believe that the term ``facility'' requires the inclusion of a 
structure or other man-made developments such as parking lots, rest 
rooms, or shelters that would facilitate the use of the land by the 
public. Some public facilities, such as water treatment plants, 
transmission lines, and solid waste disposal facilities that directly 
benefit the public, may not allow public access. However, recreational 
areas must be available for public access in order for the public to be 
able to use and benefit from them, and that access should be 
facilitated by the inclusion of necessary structures or developments.
5. Other Comments
    Comment: One commenter suggested that fish and wildlife habitat 
should be accepted as valid. The commenter said this would be 
especially beneficial if that use could be used in conjunction with a 
postmining use of reservation for future economic development. In such 
a manner, the commenter said, the land could be reclaimed for wildlife 
habitat and used as such indefinitely or until such time as a need 
develops for some other qualified project.
    Response: In response, and as noted in the Finding above, fish and 
wildlife habitat cannot be approved as a postmining land use under 
section 515(c)(3) of SMCRA. While SMCRA does not specify exactly when a 
postmining must actually be implemented, it does specify that the land 
must be capable of supporting the postmining land use, and also 
specifies the minimum criteria which must be met to qualify for a 
variance. SMCRA section 515(c)(3)(vi) provides that the proposed use 
must be planned pursuant to a schedule attached to the reclamation plan 
so as to integrate the mining operation and reclamation with the 
postmining land use. In addition, the Federal regulations at 30 CFR 
785.14(c)(1)(ii), governing AOC variances for mountaintop-removal 
operations, specify that compliance with the Federal regulations at 30 
CFR 816/817.133(a) through (c), concerning postmining land use, is 
required. 30 CFR 816/817.133(c)(3)(iii) provides that the proposed 
postmining land use will not involve unreasonable delay in 
implementation.
    Comment: A commenter stated that SMCRA does not require the land to 
be actually put to the use proposed, but only that it be capable of 
supporting the postmining land use proposed. As the Supreme Court held, 
``[t]he Act imposes no restrictions on post reclamation use of mined 
lands.'' Hodel v. Indiana, 452 U.S. 314, 330 n. 18 (1981).
    Response: In response, we note that SMCRA at section 515(c)(2) 
specifies that the applicant for an AOC variance for mountaintop 
removal operations must create a postmining land that is ``capable of 
supporting postmining uses in accordance with the requirements of this 
subsection.'' However, SMCRA at section 515(c)(3) also provides that an 
applicant must present specific plans and appropriate assurances that 
the proposed postmining land use will be compatible with adjacent land 
uses; obtainable according to data regarding expected need and market; 
assured of investment in necessary public facilities; supported by 
commitments from public agencies where appropriate; practicable with 
respect to private financial capability for completion of the proposed 
use; and planned pursuant to a schedule attached to the reclamation 
plan so as to integrate the mining operation and reclamation with the 
postmining land use. These specific plans and assurances should be 
sufficiently detailed to allow the regulatory authority to determine if 
there is a reasonable likelihood for achievement of the proposed 
postmining land use, and the use will not be impractical or 
unreasonable, or involve unreasonable delay in implementation.
    Comment: A commenter also stated, in comments directed against 
approval of the amendment, that if the proposed amendment is approved, 
regulators must approve postmining land use of any mountaintop removal 
permit application that proposes to flatten mountains and fill streams 
as long as that application proposes a ``fish and wildlife habitat and 
recreation lands'' variance.
    Response: In response, and as explained in the Finding above, we 
are not approving the proposed amendment. In addition, we disagree that 
the regulatory authority must approve a variance from the requirements 
of AOC just because a permittee proposes one of the approvable 
postmining land uses listed at section 515(c)(3). SMCRA at section 
515(c)(3) specifies that a regulatory authority ``may'' approve such a 
request if it finds that the permittee also demonstrates compliance 
with all the other criteria specified at section 515(c)(3). If all of 
the requirements of section 515(c)(3) of SMCRA are not met, the 
regulatory authority must reject the variance request.

Environmental Protection Agency (EPA)

    According to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain 
the written concurrence of the EPA with respect to those provisions of 
the proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). We 
requested EPA concurrence on June 6, 1997 (Administrative Record Number 
WV-1059) and again on March 19, 1999 (Administrative Record Number WV-
1118). In accordance with 30 CFR 732.17(h)(11)(i), we also solicited 
comments from the EPA on the proposed amendment on June 5, 1997. 
(Administrative Record Number WV-1060)

[[Page 26294]]

    EPA responded to our June 5 and 6, 1997, requests for comments and 
concurrence by letter dated October 23, 1998 (Administrative Record 
Number WV-1108). EPA expressed concerns about the proposed provision at 
section 22-3-13(c)(3) of the WVSCMRA that would allow an exemption for 
mountaintop removal operations from restoring mined land to its 
approximate original contour (AOC) if the post-mining land use is fish 
and wildlife habitat and recreation lands. EPA stated that the proposed 
revision would allow excess overburden to be disposed in valley fills 
rather than on top of the mined area to achieve AOC. A use designation 
as fish and wildlife habitat and recreation lands would not appear to 
be necessary if the goal was just to provide wildlife habitat and 
recreation land, rather than avoid the expense of placing overburden 
back on top of mined areas. It is very likely, EPA stated, that 
wildlife habitat areas would occur naturally on post-mining lands, 
including areas restored to the approximate original contour, as a 
result of appropriate reclamation without any special use designation. 
In addition, it appears that the proposed designation as wildlife 
habitat and recreation lands is not intended for lands to be used by 
the public since an exemption for ``public use'' is already in the 
State statute. EPA said that its concern is that disposal of excess 
overburden in valley fills may harm aquatic life in headwater streams 
and possibly downstream reaches.
    EPA noted OSM's intention to defer action on proposed revisions to 
section 22-3-13(c)(3) of the WVSCMRA regarding an exemption to 
approximate original contour for mountaintop removal operations until a 
later date, and that the comment period would be reopened on this 
provision. With this understanding, the EPA concurred with the other 
proposed WVDEP revisions under the condition that the EPA be given an 
opportunity to concur or not concur with the proposed amendment to 
section 22-3-13(c)(3) of the WVSCMRA.
    By letter dated April 2, 1999 (Administrative Record Number WV-
1120), EPA responded to OSM's request for concurrence dated March 19, 
1999 (Administrative Record Number WV-1118), and stated that it does 
not concur with the proposed revision at section 22-3-13(c)(3). EPA 
stated that it is withholding concurrence because the amendment would 
result in degradation of stream quality and aquatic life and violate 
the Anti-Degradation Policy of the West Virginia Water Quality 
Standards (Section 46-1-4 of the Legislative Rules of the Environmental 
Quality Board). According to EPA, compliance with Water Quality 
Standards is a requirement of the Clean Water Act.
    In its letter, the EPA stated that the proposed revision for 
exempting the restoration of mined lands to approximate original 
contour would result in an increase of excess spoil being placed in 
valley fills on stream beds rather than on top of mined areas. The 
reasons for allowing this exemption are not justified, since the lower 
and more level areas resulting from the exemption are not necessary to 
sustain ``fish and wildlife habitat and recreation lands.'' Wildlife 
habitat areas would occur naturally on postmining lands, including 
areas restored to the approximate original contour, as a result of 
appropriate reclamation without any special use designation. Increased 
disposal of excess spoil in valley fills resulting from the proposed 
exemption will unnecessarily harm aquatic life in headwater streams and 
possibly downstream reaches, the EPA said.
    In response, and in accordance with EPA's non-concurrence stated 
above, we have not approved the proposed amendment.

V. Director's Decision

    Based on the finding above, we are not approving the proposed 
language ``or fish and wildlife habitat and recreation lands'' at 
section 22-3-13(c)(3), as submitted on April 28, 1997. In addition, we 
are requiring that section 22-3-13(c)(3) of the West Virginia program 
be further amended to remove the phrase ``or fish and wildlife habitat 
and recreation lands.'' We are also requiring that the term ``public 
use'' at section 22-3-13(c)(3) be amended to include the term 
``facility'' and to further clarify that the State term will be 
interpreted the same as ``public facility (including recreation 
facilities) use'' at SMCRA section 515(c)(3).

VI. 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 on any governmental entity or the private sector.

[[Page 26295]]

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 4, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T, of the Code of Federal Regulations is amended as set 
forth below:

PART 948--WEST VIRGINIA

    1. The authority citation for part 948 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
    Original amendment submission date       Date of final publication                                 Citation/description
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
April 28, 1997...........................  May 14, 1999................  W.Va. Code 22-3 Section 13(c)(3) [not approved].
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Section 948.16 is amended by adding new paragraph (iiii) to read 
as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (iiii) By July 13, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to:
    (1) Amend section 22-3-13(c)(3) of the West Virginia program to 
remove the phrase ``or fish and wildlife habitat and recreation 
lands''; and
    (2) Amend ``public use'' at section 22-3-13(c)(3) to include the 
term ``facility'' and to further clarify that the term will be 
interpreted the same as ``public facility (including recreation 
facilities) use'' at SMCRA section 515(c)(3).

[FR Doc. 99-12212 Filed 5-13-99; 8:45 am]
BILLING CODE 4310-05-P