[Federal Register Volume 67, Number 109 (Thursday, June 6, 2002)]
[Proposed Rules]
[Pages 38919-38924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14078]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 917

[WV-096-FOR]


West Virginia Regulatory Program

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

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

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SUMMARY: We are announcing a proposed amendment to the West Virginia 
regulatory program (the ``West Virginia program'') under the Surface 
Mining Reclamation Act of 1977 (SMCRA or the Act). The program 
amendment consists of changes to the West Virginia Surface Coal Mining 
and Reclamation Act as contained in House Bill 4163. The amendment 
provides additional definition of commercial forestry and forestry. It 
also revises provisions for premining and postmining land use, required 
infrastructure, water supply, soil, soil placement and grading, bond 
release, and prime farmlands. Additionally, the amendment alters 
sections of West Virginia's bonding program performance standards, and 
Small Operator Assistance Program. Finally, the amendment proposes an 
entirely new section of the West Virginia program providing an 
exemption for coal extraction incidental to extraction of other 
minerals. The amendment is intended to improve the effectiveness of the 
West Virginia program.
    This document gives the times and locations that the West Virginia 
program and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., e.s.t. July 8, 2002. If requested, we will hold a public hearing 
on the amendment on July 1, 2002. We will accept requests to speak 
until 4:00 p.m., e.s.t. on June 21, 2002.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to West Virginia Field Office Director 
Mr. Roger W. Calhoun at the address listed below.
    You may review copies of the West Virginia program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Charleston Field Office.

Mr. Roger W. Calhoun, Director, West Virginia Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street East, 
Charleston, West Virginia 25301. Telephone: (304) 347-7158. Internet 
address: [email protected].
West Virginia Department of Environmental Protection, 10 McJunkin Road, 
Nitro, West Virginia 25143. Telephone: (304) 759-0515.

    The proposed amendment will be posted at the West Virginia 
Department of Environmental Protection's Internet page: http://wwww.dep.state.wv.us.
    In addition, you may review copies of the proposed amendment 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. (By appointment only).
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: Roger W. Calhoun, Telephone: (304) 
347-7158. Internet address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Period
IV. Procedural Determinations

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval in the January 1, 1981 Federal Register (46 FR 
5915-5956). You can also find later actions concerning West Virginia 
program and program amendments at 30 CFR 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

    By letter dated December 20, 2000 (Administrative Record Number WV-
1191), the West Virginia Department of Environmental Protection (WVDEP) 
submitted responses to required regulatory program amendments that we, 
the Office of Surface Mining (OSM) informed them of by letter dated 
August 15, 2000 (Administrative Record Number WV-1178). WVDEP sent 
another letter, dated April 9, 2000 (Administrative Record Number WV-
1296), indicating that House Bill 4163 had been approved by the West 
Virginia Legislature. The bill amended 38 Code of State Regulations 
(CSR) 2 to make several changes to existing rules and created the Coal 
Related Dam Safety Rule at 38 CSR4. West Virginia submitted the 
proposed amendment to satisfy the relevant required program amendments.
    We are not requesting comments on the amendment at CSR 38-2-12.5.d. 
The change to that provision will be announced in a separate Federal 
Register notice. As such, this proposed amendment is not part of WV-
096-FOR and will not be addressed as such.
    You will find West Virginia's program amendment presented below.

Generally

    The word ``Director'' is replaced with ``Secretary.''
    The term ``performance bond(s)'' is changed to ``bond(s).''
    The word ``Division'' is replaced with ``Department.''

[[Page 38920]]

W.Va. Code 38-2-2. Definitions

    At section 2.28.g. the word ``Division'' is replaced with 
``Department.''
    At section 2.31.b.1. the definition of ``Forestry'' is amended by 
adding the phrase ``for the production of wood or other wood 
products.'' The amended definition reads, ``Forestry, as used in 
subsection 7.4 of this rule, means a long-term postmining land use for 
the production of wood or wood products designed to accomplish the 
following.''
    In addition, at section 2.43, the definition of ``Director'' is 
deleted in its entirety.

W.Va. Code 38-2-7. Premining and Postmining Land Use

    At section 7.4.b.1.C.5, the words ``and shall be subject to the 
requirements of subsection 5.5 of this rule, except for ponds and 
impoundments located below the valley fills'' have been deleted. In the 
same subsection, ``Any pond or impoundment left in place is subject to 
requirements under subsection 5.5 of this rule'' is added. As proposed, 
the subsection reads as follows:

    (C)(5) For forestry, all ponds and impoundments, except for 
ponds and impoundments located below the valley fills created during 
mining shall be left in place after bond release. Any pond or 
impoundment left in place is subject to requirements under 
subsection (5)(5) of this rule. The substrate of the ponds and 
wetlands must be capable of retaining water to support aquatic and 
littoral vegetation.

    Subsection 7.4.b.1.C.7 is amended by adding ``O horizon means the 
top-most horizon or layer of soil dominated by organic material derived 
from dead plants and animals at various stages of decomposition; it is 
sometimes referred to as the duff or litter layer or the forest floor. 
Cr horizon means the horizon or layer below the C horizon, consisting 
of weathered or soft bedrock including saprolite or partly consolidated 
soft sandstone, siltstone, or shale.'' Without this amendment, the 
section reads, ``Soil is defined as and shall consist of the O, A, E, 
B, C, and Cr horizons.''
    Section 7.4.b.1.G is amended as follows. At subsection G.1, 
``excessive'' is deleted to read, ``* * * Secretary may approve lesser 
or no vegetative cover when tree growth and productivity will be 
enhanced and sedimentation will not result.'' The following sentence 
has also been added, ``Lesser or no vegetative cover may only be 
authorized by the Secretary when mulch or other soil stabilizing 
practices have been used to protect all undisturbed areas unless 
demonstrated that the reduced cover is sufficient to control erosion 
and air pollution attendant to erosion regardless of slope.''
    Section 7.4.b.1.G.3 is amended by adding ``and/or disrupt the 
approved postmining land use or the establishment of vegetative cover 
or cause or contribute to a violation of the water quality standards 
for the receiving stream'' directly after ``The permittee may regrade 
and reseed only those rills and gullies that are unstable * * *.''
    Section 7.4.b.1.I.2 is amended by deleting ``where there is 
potential for excessive erosion on slopes greater than 20%'' from the 
third sentence. Also, the word ``and'' is removed from in front of 
``organic litter'' in the third sentence and ``except where a lesser 
vegetation cover has been authorized'' is added after ``organic 
material; followed by a deletion of ``and rock cover''. This sentence 
is amended to read as follows:

    Furthermore, for both commercial forestry and forestry, there 
shall be 70% ground cover where ground cover includes tree canopy, 
shrub and herbaceous cover, and organic litter, except where a 
lesser vegetation cover has been authorized, and at least 80% of all 
trees and shrubs used to determine re-vegetation success must have 
been in place for at least 60% of the applicable minimum period of 
responsibility.

    Subsection 7.4.b.1.I.3 is amended by deleting ``Additionally'' at 
the beginning of the third sentence and replacing it with ``Above and 
beyond all other standards in effect.''
    Section 7.5.i.1.B is amended by adding ``meet the primary road 
requirements of section 2.4 of this rule,'' to the second sentence 
directly after ``State Department of Highways standards.''
    Section 7.5.i.3.Q is amended by adding ``The reservoir is subject 
to requirements under subsection 5.5 of this rule'' as the last 
sentence.
    Section 7.5.i.10 is amended by adding ``Any pond or impoundment 
left in place is subject to requirements under subsection 5.5 of this 
rule'' as the last sentence.
    Section 7.5.j.3.A is amended by adding ``O horizon means the top-
most horizon or layer of soil dominated by organic material derived 
from dead plants and animals at various stages of decomposition; it is 
sometimes referred to as the duff or litter layer or the forest floor. 
Cr horizon means the horizon or layer below the C horizon, consisting 
of weathered or soft bedrock including saprolite or partly consolidated 
soft sandstone, siltstone, or shale.'' Without this amendment, the 
section reads, ``Soil is defined as and shall consist of the O, A, B, 
C, and Cr horizons.''
    Section 7.5.j.6.B is amended by adding ``and/or disrupt the 
approved postmining land use or the establishment of vegetative cover 
or cause or contribute to a violation of the water quality standards 
for the receiving stream.'' To ``The permittee may regrade and reseed 
only those hills and gullies that are unstable.''
    Section 7.5.o.2 is amended to add ``and'' before ``organic litter'' 
and delete ``and rock cover'' after ``organic litter'' in the second 
sentence.
    New subsection 10.4.a.1.D is added to read as follows:

    a.1.D. The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if 
any, constructed during mining and reclamation must be located 
within the post reclamation non-prime farmland portions of the 
permit area. The creation of such water bodies must be approved by 
the Department of Environmental Protection and have the consent of 
all affected property owners within the permit area.

W.Va. Code 38-2-11. Insurance and Bonding

    Section 11.5, ``Open Acre Limit Bonding,'' and all 11.5 subsections 
are deleted in their entirety. Thus, 11.6 is renumbered accordingly as 
``11.5.''
    At renumbered section 11.5, ``After January 1, 1994'' is deleted 
from the beginning of the fourth paragraph. In addition, ``or mid-term 
review, whichever occurs first'' is deleted from the first sentence of 
the last paragraph. Also, the last sentence, ``The existing bond may be 
determined to be adequate only if all the following criteria are met'' 
is deleted along with the subsections a.1-5, ``Open Acre Limit 
Bonding,'' which follows. Finally, the final paragraph of the 
subsection is deleted as well.

W.Va. Code 38-2-12. Replacement, Release, and Forfeiture of Bonds

    Section 12.5.e is amended in the first sentence by deleting ``one 
thousand nine hundred ninety-three'' and replacing it with ``two 
thousand and two and every year thereafter.''

W. Va. Code 38-2-14. Performance Standards

    Section 14.12.a.1 is amended by deleting ``commercial forestry,'' 
from the list of suitable land uses.
    Section 14.15.a.1 is amended by deleting ``with all highwalls 
eliminated'' from the first sentence. In addition, ``W.Va. Code 22-3-
13.c.2 with all highwall eliminated'' is added as the end of the first 
sentence.
    Section 14.15.a.2 is amended by adding ``throughout,'' such that 
the last reads ``areas throughout the life of the operation.

[[Page 38921]]

    Sections 14.15.b.6.B.1-2 are deleted in their entirety. In 
addition, a new subsection, B.1 is added as follows:

    B.1. Pre-stripping or benching operations cannot exceed four 
hundred (400) acres for any single permit and cannot precede 
dragline operations more than twenty-four (24) months unless 
otherwise approved by the Secretary or necessary to satisfy AOC+ 
requirements, specific post-mining land use requirements or special 
materials handling facilities requirements. All fill construction 
must occur during this phase of operation and be conducted in 
accordance with subdivision 14(15)(d) of this rule.

    Also, subsection B.3 is renumbered accordingly as new ``B.2.''
    Section 14.15.d is amended by deleting the entire section and 
replacing it as follows:

    (d) Excess Spoil Disposal Fills. All fills must be constructed 
contemporaneously and contiguously with that segment of the 
operations that contains the material that is designated to be 
placed in the fill. In addition to all other standards in effect, 
the following shall apply to excess spoil disposal fills.

    Subsection 14.15.d.1 is amended by deleting the entire second 
paragraph.
    Subsection 14.15.d.2 is amended by deleting the second paragraph.
    Subsection 14.15.e is renumbered to ``14.15.f.''
    Subsection 14.15.f is amended by deleting the current language in 
its entirety, renumbering to ``g,'' and adding the following:

    15.g. Variance--Permit Applications. The Secretary may grant 
approval of a mining and reclamation plan for a permit which seeks a 
variance to one or more of the standards set forth in this 
subsection, if on the basis of the site specific conditions and 
sound scientific and/or engineering data, the applicant can 
demonstrate that compliance with one or more of these standards is 
not technologically or economically feasible. The Secretary shall 
make written findings in accordance with the applicable provisions 
of section 3.32 of this rule when granting or denying a request for 
variance under this section.

    The following subsections are renumbered: 14.15.g is renumbered to 
``14.15.h;'' 15.h is renumbered to ``15.j;'' 15.i to ``15.k;'' 15.j to 
``15.l;'' 15.k to ``15.m;'' 15.l to ``15.n;'' and 15.m to ``15.o.''

W.Va. Code 38-2-17. Small Operator Assistance Program

    Section 17.3.b.2 is amended by deleting ``five'' and replacing it 
with ``'ten'' percent.'' In addition, ``5'' is changed to ``10.''
    Section 17.4 is changed by adding as the last sentence, ``Each 
application for assistance shall include the following information:,'' 
and new subsections a-f.2 are added to read as follows:

    17.4.a. A statement of the operator's intent to file a permit 
application;
    b. The names and addresses of:
    b.1. The permit applicant; and
    b.2. The operator if different from the applicant
    c. A schedule of the estimated total production of coal from the 
proposed permit area and all other locations from which production 
is attributed to the applicant. The schedule shall include for each 
location:
    c.1. The operator or company name under which coal is or will be 
mined;
    c.2. The permit number and Mine Safety and Health Administration 
(MSHA) number;
    c.3. The actual coal production during the year preceding the 
year for which the applicant applies for assistance and production 
that may be attributed to the applicant; and
    c.4. The estimated coal production and any production which may 
be attributed to the applicant for each year of the proposed permit.
    d. A description of:
    d.1. The proposed method of coal mining;
    d.2. The anticipated starting and termination dates of mining 
operations;
    d.3. The number of acres of land to be affected by the proposed 
mining operation; and
    d.4. A general statement on the probable depth and thickness of 
the coal resource including a statement of reserves in the permit 
area and the method by which they were calculated.
    e. A U.S. Geological Survey topographic map at a scale of 
1:24,000 or larger or other topographic map of equivalent detail 
which clearly shows:
    e.1. The area of land to be affected;
    e.2. The location of any existing or proposed test borings; and
    e.3. The location and extent of known workings of any 
underground mines.
    f. Copies of documents which show that:
    f.1. The applicant has a legal right to enter and commence 
mining within the permit area; and
    f.2. A legal right of entry has been obtained for the program 
administrator and laboratory personnel to inspect the lands to be 
mined and adjacent areas to collect environmental data or to install 
necessary instruments.

    Section 17.6.a is amended by adding ``, institution,'' before ``or 
analytical laboratory.'' Also, after ``laboratory,'' the following 
language is added, ``that can provide the required determination of a 
probable hydrologic consequences or statement of results of test 
borings or core samplings or other services as specified under the 
Small Operator Assistance Program and that.''
    A new section of code is proposed at W.Va. Code 38-2-25. Exemption 
for Coal Extraction Incidental to Extraction of Other Materials. It 
would read:

    25.1. Exemption determination. No later than 90 days after 
filing of an administratively complete request for exemption, the 
Secretary shall make a written determination whether, and under what 
conditions, the persons claiming the exemption are exempt under this 
part, and shall notify the person making the request and persons 
submitting comments on the application of the determination and the 
basis for the determination. The determination of exemption shall be 
based upon information contained in the request and any other 
information available to the regulatory authority at that time. If 
the Secretary fails to provide a determination as specified in this 
section, extraction may commence pending a determination on the 
request.
    25.2. Contents of request for exemption. An request for 
exemption shall be made part of a quarrying application and shall 
include at a minimum:
    25.2.a. The names and business address of the requestor to 
include a street address or route number
    25.2.b. A list of the minerals to be extracted;
    25.2.c. Estimates of annual production of coal and the other 
minerals over the anticipated life of the operation;
    25.2.d. A reasonable estimate of the number of acres of coal 
that will be extracted;
    25.2.e. Evidence of publication of a public notice. The notice 
shall be published in a newspaper of general circulation in the 
county in which the operation is located and shall be published once 
and provide a thirty day comment period. The public notice must 
contain at a minimum:
    25.2.e.1. The quarrying number identifying the operation.
    25.2.e.2. A clear and accurate location map of a scale and 
detail found in the West Virginia General Highway Map. The map size 
will be at a minimum four inches (``4''). Longitude and latitude 
lines and north arrow will be indicated on the map and such lines 
will cross at or near the center of the quarrying operation;
    25.2.e.3. The names and business address of the requestor to 
include a street address or route number;
    25.2.e.4. A narrative description clearly describing the 
location of the quarrying operation.
    25.2.e.5. The name and address of the Department of 
Environmental Protection Office where written comments on the 
request may be submitted;
    25.2.f. Geologic cross sections, maps or plans of the quarrying 
operation determine the following information:
    25.2.f.1. The locations (latitude and longitude) and elevations 
of all bore holes;
    25.2.f.2. The nature and depth of the various strata or 
overburden including geologic formation names and/or geologic 
members;
    25.2.f.3. The nature and thickness of any coal or other mineral 
to be extracted;
    25.2.g. A map of appropriate scale which clearly identifies the 
coal extraction area versus quarrying area;
    25.2.h. A general description of coal extraction and quarrying 
activities for the operation;
    25.2.i. Any other information pertinent to the qualification of 
the operation as exempt.
    25.3. Requirements for exemption.
    25.3.a. Activities are exempt from the requirements of the Act 
if all of the following are satisfied:

[[Page 38922]]

    25.3.a.1. The cumulative production of coal extracted from 
mining area determined annually as described in this paragraph does 
not exceed 16 2/3 percent of the total cumulative production of coal 
and other minerals removed during such period for purposes of bona 
fide sale or reasonable commercial use.
    25.3.a.2. Coal is extracted from a geological stratum lying 
above or immediately below the deepest stratum from which other 
minerals are extracted for purposes of bona fide sale or reasonable 
commercial use.
    25.3.b. Persons seeking or that have obtained an exemption from 
the requirements of the Act shall comply with the following:
    25.3.b.1. Each other mineral upon which an exemption under this 
part is based must be a commercially valuable mineral for which a 
market exists or which is quarried in bona fide anticipation that a 
market will exist for the mineral in the reasonably foreseeable 
future, not to exceed twelve months. A legally binding agreement for 
the future sale of other minerals is sufficient to demonstrate the 
above standard.
    25.3.b.2. If either coal or other minerals are transferred or 
sold by the operator to a related entity for its use or sale, the 
transaction must be made for legitimate business purposes.
    25.4. Conditions of exemption.
    A person conducting activities covered by this part shall:
    25.4.a. Maintain on-site the information necessary to verify the 
exemption including, but not limited to, commercial use and sales 
information, extraction tonnages, and a copy of the exemption 
application and the Department's exemption approval;
    25.4.b. Notify the Department of Environmental Protection upon 
the completion of all coal extraction activities.
    25.5. Stockpiling of Minerals.
    25.5.a. Coal extracted and stockpiled may be excluded from the 
calculation of annual production until the time of its sale, 
transfer to a related entity or use:
    25.5.a.1. Up to an amount equaling a 12-month supply of the coal 
required for future sale, transfer or use as calculated based upon 
the average annual sales, transfer and use from the mining area over 
the two preceding years; or
    25.5.a.2. For a mining area where coal has been extracted for a 
period of less than two years, up to an amount that would represent 
a 12-month supply of the coal required for future sales, transfer or 
use as calculated based on the average amount of coal sold, 
transferred or used each month.
    25.5.b. The Department of Environmental Protection shall 
disallow all or part of an operator's tonnages of stockpiled other 
minerals for purposes of meeting the requirements of this part if 
the operator fails to maintain adequate and verifiable records of 
the mining area of origin, the disposition of stockpiles or if the 
disposition of the stockpiles indicates the lack of commercial use 
or market for the minerals.
    The Department of Environmental Protection may only allow an 
operator to utilize tonnages of stockpiled other minerals for 
purposes of meeting the requirements of this part if:
    25.5.b.1. The stockpiling is necessary to meet market conditions 
or is consistent with generally accepted industry practices; and
    25.5.b.2. Except as provided in paragraph (b)(3) of this 
section, the stockpiled other minerals do not exceed a 12-month 
supply of the mineral required for future sales as approved by the 
regulatory authority on the basis of the exemption application.
    25.5.b.3. The Department of Environmental Protection may allow 
an operator to utilize tonnages of stockpiled other minerals beyond 
the 12-month limit established in paragraph (b)(2) of this section 
if the operator can demonstrate to the Department of Environmental 
Protection's satisfaction that the additional tonnage is required to 
meet future business obligations of the operator, such as may be 
demonstrated by a legally binding agreement for future delivery of 
the minerals.
    25.5.b.4. The Department of Environmental Protection may 
periodically revise the other mineral stockpile tonnage limits in 
accordance with the criteria established by paragraphs (b)(2) and 
(3) of this section based on additional information available to the 
Department of Environmental Protection.
    25.6. Revocation and enforcement.
    25.6.a. The Department of Environmental Protection shall conduct 
an annual compliance review of the operation requesting exemption.
    25.6.b. If the Department of Environmental Protection has reason 
to believe that a specific operation was not exempt at the end of 
the previous reporting period, is not exempt, or will be unable to 
satisfy the exemption criteria at the end of the current reporting 
period, the Department of Environmental Protection shall notify the 
operator that the exemption may be revoked and the reason(s) 
therefore. The exemption will be revoked unless the operator 
demonstrates to the Department of Environmental Protection within 30 
days that the operation in question should continue to be exempt.
    25.6.c. If the Department of Environmental Protection finds that 
an operator has not demonstrated that activities conducted in the 
operation area qualify for the exemption, the Department of 
Environmental Protection shall notify the operator.
    25.7. Reporting requirements.
    25.7.a.1. Following approval by the Department of Environmental 
Protection of an exemption for an operation, the person receiving 
the exemption shall file a quarterly production report with the 
Department of Environmental Protection containing the information 
specified in paragraph (b) of this section.
    25.7.a.2. The report shall be filed no later than 30 days after 
the end of each quarter.
    25.7.a.3. The information in the report shall cover:
    25.7.a.3.A. Quarterly production of coal and other minerals, and
    25.7.a.3.B. The cumulative production of coal and other 
minerals.
    25.7.a.3.C. The number of tons of coal stockpiled.
    25.7.a.3.D. The number of tons of other minerals stockpiled.

III. Public Comment Period

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Kentucky Field Office may not be 
logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SPATS No. WV-096-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the West Virginia Field 
Office at (304) 347-7158.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on June 
21, 2002. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We

[[Page 38923]]

will arrange the location and time of the hearing with those persons 
requesting the hearing. If no one requests an opportunity to speak, we 
will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 because 
each 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 
the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 917

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 38924]]


    Dated: May 2, 2002.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-14078 Filed 6-5-02; 8:45 am]
BILLING CODE 4310-05-P