[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53200-53203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25551]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-082-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing its approval of amendments and its decision 
concerning the State's request that we reconsider certain decisions on 
a previous program amendment to the West Virginia permanent regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The amendment revises the West Virginia surface mining 
regulations concerning definitions of ``area mining operations'' and 
``mountaintop mining operations;'' variances from approximate original 
contour in steep slope areas; subsidence control plans; permit 
issuance; construction tolerance; surface owner protection; and primary 
and emergency spillway designs. The previous amendment being 
reconsidered concerns subsidence regulations. The amendment is intended 
to improve the operational efficiency of the State program, and to make 
the regulations consistent with the counterpart Federal regulations.

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
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 May 5, 1999 (Administrative Record Number WV-1127), 
the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to the West Virginia permanent regulatory 
program pursuant to 30 CFR 732.17. The amendment concerns changes to 
the West Virginia regulations made by the State Legislature in House 
Bill 2533 which was enacted on April 2, 1999. In addition, the WVDEP 
requested that OSM reconsider its disapproval of parts of CSR 38-2-3.12 
(concerning subsidence control plan) and 38-2-16.2 (concerning surface 
owner protection) and remove the corresponding required regulatory 
program amendments specified in the February 9, 1999, Federal Register 
(64 FR 6201-6218) in light of the April 27, 1999, United States Court 
of Appeals decision on Case No. 98-5320.
    We announced receipt of the proposed amendment in the May 27, 1999, 
Federal Register (64 FR 28771), invited public comment, and provided an 
opportunity for a public hearing on the adequacy of the proposed 
amendment. The public comment period closed on June 28, 1999. No one 
requested an opportunity to speak at a public hearing, so none was 
held.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment. 
Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised paragraph notations to 
reflect organizational changes that result from this amendment.
    1. CSR 38-2-2.11 Definition of ``Area Mining Operation.'' In this 
new definition, ``Area Mining Operation'' is defined to mean a mining 
operation where all disturbed areas are restored to approximate 
original contour (AOC) unless the operation is located in steep

[[Page 53201]]

slope areas and a steep slope AOC variance in accordance with 
subsection 14.12 of this rule has been approved. An area mining 
operation may remove all or part of coal seam(s) in the upper fraction 
of a mountain, ridge, or hill. However, it is not classified as a 
mountaintop operation for one or more of the following reasons:
    2.11.a. The site may be restored to AOC; or
    2.11.b. The entire coal seam may not be removed.
    There is no Federal definition of the term ``area mining 
operation.'' However, we find that the term ``area mining operation'' 
does not include ``mountaintop-removal mining'' and is analogous with 
the Federal requirements relating to ``steep slope mining.'' Because 
the definition is not inconsistent with SMCRA or the Federal 
regulations it can be approved.
    2. CSR 38-2-2.78 Definition of ``Mountaintop Mining Operation.'' In 
this new definition, ``Mountaintop Mining Operation'' is defined to 
mean a mining operation that removes an entire coal seam or seam(s) in 
an upper fraction of a mountain, ridge, or hill and creating a level 
plateau or a gently rolling contour with no highwalls. The approved 
postmining land use must be in accordance with Sec. 22-3-13(c)(3) of 
the West Virginia Code. We find the definition of ``mountaintop mining 
operation'' to be substantively identical to the Federal regulations 
governing ``mountaintop removal mining'' at 30 CFR 824.11(a)(2) and it 
is, therefore, approved.
    3. CSR 38-2-3.12 Subsidence control plan. Subdivision 3.12.a.2. is 
amended to change the words ``could contaminate, diminish or * * *'' to 
read ``could be contaminated, diminish or * * *'' We find that this 
change helps to clarify the meaning of this provision and can be 
approved. However, the proposed change has not satisfied the required 
amendment at 30 CFR 948.16(aaaa). The second paragraph of subdivision 
3.12.a.2. is amended by adding the word ``building'' to read as 
follows: ``A survey of the condition of all non-commercial building or 
residential * * *'' We find that the addition of the word ``building'' 
at Subdivision 3.12.a.2 is no less effective than 30 CFR 784.20(a)(3) 
and can be approved.
    Subdivision 3.12.a.2.B. is amended to change the words ``Non-
commercial building as used in this section means, other than * * *'' 
to read ``Non-commercial building as used in this section means any 
building, other than * * *'' We find that this change clarifies the 
meaning of this provision and can be approved. However, the required 
amendment at 30 CFR 948.16(cccc) still remains unsatisfied because the 
definition of ``non-commercial building'' does not include such 
buildings used on a temporary basis as provided by 30 CFR 701.5.
    4. CSR 38-2-3.32.b. Findings--permit issuance. In the third 
paragraph, the name of the database ``Surface Mining Information 
System'' is deleted and replaced by ``Environmental Resources 
Information Network.'' We find that this name change more accurately 
describes the WVDEP's surface mine database management system. The 
proposed revision does not render the West Virginia program less 
effective than the Federal requirements and, therefore, can be 
approved.
    5. CSR 38-2-3.35 Construction tolerance. This subsection is amended 
by adding the title ``Construction Tolerance.'' We find that this 
change clarifies the purpose of the provisions at subdivision 3.35 and 
can be approved.
    6. CSR 38-2-14.12.a.1. Variance from approximate original contour 
requirements. This provision is amended by adding the following 
language: ``and the land after reclamation is suitable for industrial, 
commercial, residential or public use (including recreational 
facilities).'' As amended the provision reads as follows. ``The permit 
area is located on steep slopes as defined in subdivision 14.8.a. of 
this rule and the land after reclamation is suitable for industrial, 
commercial, residential or public use (including recreational 
facilities).'' We find that the new language is substantively identical 
to the Federal regulations at 30 CFR 785.16(a)(1), pertaining to 
variance from the approximate original contour (AOC) requirement for 
steep slope mining operations, and can be approved. This revision 
satisfies the required amendment at 30 CFR 948.16(mmm) which can be 
removed.
    7. CSR 38-2-16.2. Surface owner protection. Subdivision 38-2-
16.2.c. is amended by adding the word ``damage'' after the word 
``Material'' at the beginning of the first sentence. In addition, the 
words ``or facility'' are added after the word ``structure'' and before 
the word ``from'' near the end of the first sentence. We find that 
these changes, which are no less effective than 30 CFR 701.5, clarify 
the meaning of the term ``material damage'' and, therefore, can be 
approved.
    Subdivision 38-2-16.2.c.3. is amended to delete the word ``occurs'' 
after the words ``subsidence damage'' and before the words ``to any.'' 
We find that this change eliminates a redundant word and clarifies the 
meaning of this provision and can be approved.
    8. CSR 38-2-22.4.g. Primary and emergency spillway design. This 
subdivision is amended by changing the probable maximum precipitation 
(PMP) event for impoundments meeting the size or other criteria of 30 
CFR 77.216(a) from a 24-hour storm event to a ``six (6)'' hour storm 
event. This change has been submitted in response to a required program 
amendment codified at 30 CFR 948.16(uuu). On February 21, 1996 (61 FR 
6528) the Director determined that the State's PMP 24-hour storm event 
standard would be impossible to implement because the U.S. Weather 
Service's document ``Rainfall Frequency Atlas'' does not have data 
charts concerning PMP for a 24-hour storm event. The ``Rainfall 
Frequency Atlas'' does, however, contain data charts for PMP 6-hour 
storm events. We find that with this change, the provision is 
substantively identical to the Federal regulations at 30 CFR 816/
817.84(b)(2) and which specify the PMP 6-hour storm event. We also find 
that this amendment satisfies the required program amendment codified 
at 30 CFR 948.16 (uuu) which can be removed.
    9. WVDEP request that OSM reconsider certain decisions and required 
amendments published in the February 9, 1999, Federal Register (64 FR 
6201-6218).
    Along with its submittal of this amendment, the WVDEP also 
requested that we reconsider our disapproval of amendments and the 
related required amendments to the West Virginia program in the 
February 9, 1999, Federal Register (64 FR 6201-6218). In that notice, 
we disapproved parts of CSR 38-2-3.12 (concerning subsidence control 
plan) and 38-2-16.2 (concerning surface owner protection) and added 
related required regulatory program amendments. The WVDEP cited the 
United States Court of Appeals decision in National Mining Ass'n. v. 
Babbitt, 172 F.3d 906 (D.C. Cir. 1999), as the basis for its request.
    In the above referenced decision, the Court struck down two OSM 
regulations on coal mine subsidence. First, the Court of Appeals 
vacated 30 CFR 817.121(c)(4)(i), which established a rebuttable 
presumption that damage to any noncommercial building or occupied 
residential dwelling or structure related thereto, resulting from earth 
movement occurring within the ``angle of draw'' of an underground 
mining operation, was caused by subsidence from that mining operation. 
172 F.3d at 913. The Court also struck down a portion of 30 CFR 
784.20(a)(3) that required coal operators to conduct

[[Page 53202]]

presubsidence structural condition surveys. The Court vacated this 
provision because the area in which the survey was required was defined 
by reference to the angle of draw, which the Court found to be an 
arbitrary and capricious basis for the establishment of a rebuttable 
presumption. Id. at 915. The two regulations that were struck down were 
among those issued on March 31, 1995, at 60 FR 16722-51, pursuant to 
SMCRA and section 2504 of the Energy Policy Act of 1992. The Energy 
Policy Act of 1992 added a new section 720 to SMCRA. Section 720 
requires underground mine operators to repair or to compensate for 
material damage to residential structures and noncommercial buildings, 
and to replace residential water supplies adversely affected by 
underground mining.
    As the WVDEP requested, we reviewed the findings that we made in 
the February 9, 1999, Federal Register notice in the light of the Court 
of Appeals decision cited above. Based on our review, we have 
determined that some of our decisions and required amendments are 
affected by the Court's decisions. Therefore, in a future Federal 
Register notice, we will identify the specific findings, decisions and 
required amendments that are affected by the Court's decision. We will 
open a public comment period and will ask for public comment on the 
decisions that we propose to amend and the required amendments that we 
propose to delete.

IV. Summary and Disposition of Comments

Federal Agency Comments

    As required by 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 on May 21, 1999. The 
U.S. Department of Labor, Mine Safety and Health Administration 
responded and stated that it had no comments.

Public Comments

    We solicited public comments on the amendment. No comments were 
received.

U.S. Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State 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 determined that none of the amendments required EPA 
concurrence.
    Pursuant to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from EPA. The EPA responded and stated that it had 
no objections to the proposed revisions. The EPA recommended, however, 
that the definition of ``mountaintop mining operation'' at CSR 38-2-
2.78 be clarified. The EPA stated that the definition gives the 
impression that approval of an AOC variance is not necessary to create 
the level area as long as an approved postmining land use plan is 
approved. The EPA recommended that the definition be amended to clarify 
that W.Va Code 22-3-13(c)(3) includes a requirement of an AOC variance. 
In response, we agree that amending the definition as recommended by 
EPA would add to its clarity. However, since the proposed definition 
already requires compliance with W.Va Code 22-3-13(c)(3), which 
requires that an operator be granted a variance in order to be exempt 
from the AOC requirement for a mountaintop-removal operation, we 
conclude that the additional clarification to the definition is not 
necessary.

V. Director's Decision

    Based on the findings above, we are approving the proposed 
amendments. In a future Federal Register notice, we will identify the 
specific findings decisions and required amendments published in our 
February 9, 1999, Federal Register notice that are affected by the 
United States Court of Appeals decision in National Mining Ass'n. v. 
Babbitt, 172 F.3d 906 (D.C. Cir. 1999). We will open a public comment 
period and will ask for public comment on the decisions that we propose 
to amend and the required amendments that we propose to delete.
    The Federal regulations at 30 CFR 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision. The required regulatory program amendments codified at 
30 CFR 948.16(mmm) and CFR 948.16(uuu) are being removed. This final 
rule is being made effective immediately to expedite the State program 
amendment process and to encourage States to bring their programs into 
conformity with the Federal standards without undue delay. Consistency 
of State and Federal standards is required by SMCRA.

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

[[Page 53203]]

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.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 7, 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 of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
May 5, 1999...................  10-1-99..........  CSR 38-2-2.11; 2.78;
                                                    3.12.a.2, and .2.B;
                                                    3.32.b; 3.35;
                                                    14.12.a.1; 16.2.c,
                                                    and .c.3; and
                                                    22.4.g.
------------------------------------------------------------------------

Sec. 948.16  [Amended]

    3. Section 948.16 is amended by removing and reserving paragraphs 
(mmm) and (uuu).

[FR Doc. 99-25551 Filed 9-30-99; 8:45 am]
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