[Federal Register Volume 67, Number 159 (Friday, August 16, 2002)]
[Proposed Rules]
[Pages 53542-53546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20821]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-096-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM) are reopening the public comment period on an amendment to the 
West Virginia surface mining regulatory program (the West Virginia 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The program amendment consists of changes to the 
Code of State Regulations as contained in House Bill 4163. We are 
reopening the comment period to provide an opportunity to review and 
comment on additional amendments provided by the State and provisions 
that we inadvertently omitted identifying as being part of the State's 
original submittal of this amendment. 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 the 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 p.m. 
(local time), September 16, 2002. If requested, we will hold a public 
hearing on the amendment on September 10, 2002. We will accept requests 
to speak at a hearing until 4 p.m. (local time), on September 3, 2002.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to 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, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail: 
[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://www.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: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 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 Procedures
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 of the West Virginia program in the January 21, 
1981 Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

    By letter dated April 9, 2002 (Administrative Record Number WV-
1296), the West Virginia Department of Environmental Protection (WVDEP) 
sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). The proposed amendment consists of several changes to the 
Code of State Regulations (CSR) at 38-2, and the addition of new CSR 
38-4, the Coal Related Dam Safety Rule, as contained in House Bill 
4163.
    We announced the receipt and provided an opportunity to comment on 
the amendment in the June 6, 2002, Federal Register (67 FR 38919) 
(Administrative Record Number WV-1311). In that announcement, we 
inadvertently omitted identifying some of the changes submitted by the 
State, including the new Coal Related Dam Safety Rule at CSR 38-4. 
Therefore, we are taking this opportunity to identify and provide an 
opportunity to comment on those amendments.
    By letter and electronic mail dated June 19, 2002, WVDEP sent us 
additional amendments to its program that are contained in Senate Bill 
2002 concerning changes to CSR 38-2 (Administrative Record Number WV-
1316). Senate Bill 2002 was signed by the governor on June 21, 2002. 
Two of these amendments are intended to

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satisfy the required program amendments codified at 30 CFR 948.16(ssss) 
and (mmmmm). The new amendments are summarized below.

New Proposed Amendments

CSR 38-2-3. Permit Application Requirements and Contents
    Subdivision 3.25.a.4., concerning transfer, reinstatement, 
assignment, or sale of permit rights, is amended by adding the word 
``reinstatement'' to the sentence: ``Such findings will be based on 
information set forth in the application for transfer, assignment, or 
sale and any other information made available to the Secretary.'' As 
amended, the sentence reads, ``Such findings will be based on 
information set forth in the application for transfer, reinstatement, 
assignment, or sale and any other information made available to the 
Secretary.''
    Subdivision 3.25.a.4 has also been amended by inserting the phrase 
``Except for reinstatement'' at the beginning of the sentence that 
states ``Such approval may be granted in advance of the close of the 
public comment period Provided * * *.'' As amended, the sentence reads, 
``Except for reinstatement, such approval may be granted in advance of 
the close of the public comment period Provided * * *.'' These changes 
are intended to satisfy the required program amendment codified at 30 
CFR 948.16(ssss).
CSR 38-2-7. Premining and Postmining Land Use
    Subdivision 38-2-7.5.j.6.A., concerning ground cover vegetation, is 
amended by deletion of the word ``excessive'' from the sentence, ``The 
ground cover vegetation shall be capable of stabilizing the soil from 
excessive erosion.'' This revision is intended to satisfy the required 
program amendment codified at 30 CFR 948.16(mmmmm).
CSR 38-2-14.15  Performance Standards/Contemporaneous Reclamation
    Subdivision 14.15.c.4., concerning areas that have been cleared and 
grubbed that exceed 30 acres, has been deleted.
    Subdivision 14.15.g.5, concerning a detailed economic analysis for 
requests for variances, has been deleted.

Amendments Not Previously Identified for Public Comment

    In general, and to be consistent with the West Virginia Code (W. 
Va. Code), the word ``performance'' has been deleted where it appeared 
before the word ``bond.''
    CSR 38-2-2.108. The definition of ``Secretary'' was added to mean 
the Secretary of the Department of Environmental Protection or his 
authorized agent.
CSR 38-2-7. Premining and Postmining Land Use
    Subdivision 7.4.a.1, has been amended to add that ``Commercial 
forestry shall be established on areas receiving a variance from AOC.'' 
As amended, this subdivision provides in part that ``Commercial 
forestry shall be established on areas receiving a variance from AOC 
and either commercial forestry or forestry shall be established on all 
portions of the permit area.''
    Subdivision 7.4.b.1.D.1 has been amended. We previously and 
incorrectly identified this revision as being an amendment to 
subdivision 7.4.b.1.C.7. Subdivision 7.4.b.1.D.1 was amended by adding 
the following language to the existing definition of soil:

    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.
CSR 38-2-14. Performance Standards
    Subdivision 14.15.a.2 is new, concerns the general contemporaneous 
reclamation standards, and provides as follows:

    All permit applications shall incorporate into the required 
mining and reclamation plan a detailed site specific description of 
the timing, sequence, and areal extent of each progressive phase of 
the mining and reclamation of the mining and reclamation operation 
which reflects how the mining operations and the reclamation 
operations will be coordinated so as to minimize the amount of 
disturbed, unreclaimed area, and to quickly establish and maintain a 
specified ratio of disturbed versus reclaimed area throughout the 
life of the operation.

    Subdivision 14.15.b.5 pertaining to time, distance and acreage 
limits for multiple seam mining, was amended by adding the following 
sentence: ``Regardless of the allowable limits contained in this 
section, any disturbed area other than those specified in subdivision 
14.15.c of this rule must complete backfilling and rough grading within 
180 days of final mineral removal.''
    Subdivision 14.15.b.6.A pertaining to disturbed acreage, including 
excess spoil disposal sites, was amended by adding the following 
language to the end of the first paragraph:

    Where operations contemplated under this section are approved 
with incidental contour mining, which may include augering or 
highwall mining, the acreage must be calculated in the allowable 
disturbance authorized in this paragraph. The incidental contour pit 
length cannot exceed 3000 feet and backfilling/grading shall follow 
mineral removal within 180 days. Regardless of the allowable limits 
contained in the section fourteen of this rule, any disturbed area 
other than those specified in subdivision 14.15.c. of this rule must 
complete backfilling and rough grading with 180 days of final 
mineral removal. Operations required to comply with AOC+ guidelines 
or approved specific post-mining land use requirements must complete 
backfilling and rough grading within 270 days of final mineral 
removal unless a waiver is otherwise granted by the Secretary 
pursuant to this section.

    Subdivision 14.15.c. was amended to define reclaimed acreage, for 
purposes of this subsection, to also mean that portion of the permit 
area that ``meets Phase I [bond release] standards.''
    Subdivision 14.15.c.1 which delineates certain portions of an 
operation that are not included in the calculation of disturbed area 
for purposes of contemporaneous reclamation, was amended by adding the 
following language at the end of the paragraph:

    Provided, That with the exception of permanent haulroads, 
drainage control systems and material handling facilities (including 
but are not limited to such facilities as preparation plants, fixed 
coal stockpiles/transfer areas and commercial forestry topsoil 
areas) the total acreage of all other semi-permanent ancillary 
facilities cannot exceed ten percent of the total permit acreage.

    Subdivision 14.15.c.3, also pertaining to exceptions to disturbed 
area, was amended by adding the following sentence to the end of the 
paragraph: ``The Secretary may consider larger acreage for clearing 
operations where it can be demonstrated that it is necessary to comply 
with applicable National Environmental Policy Act requirements.''
    Subdivision 14.15.d.1, concerning excess spoil disposal fills, is 
new and provides as follows:

    All fills must be planned for continuous material placement 
until designed capacity is reached and cannot have a period of 
inactivity that exceeds 180 days unless otherwise approved by the 
secretary on a permit specific basis to accommodate AOC+, post-
mining land use or special material handling situations.

    Subdivision 14.15.d.2, also concerning excess spoil disposal fills, 
is new and provides that ``[t]he areas

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where contour mining is proposed within the confines of the fill are 
not eligible for the exemption contained in 14.15.c.2.''
    New subdivision 14.15.d.3 was added to provide as follows: 
``Operations that propose fills that are designed to use single lift 
top-down construction shall bond the proposed fill areas based upon the 
maximum amount per acre specified in WV Code Sec. 22-3-12(c)(1).''
    New subdivision 14.15.e was added to provide as follows:

    14.15.e  Applicability. Permit applications pending approval on 
the first day of January, two thousand three, shall within 120 days 
of permit approval have a mining and reclamation plan which is 
consistent with the criteria set forth in this subdivision. Permit 
applications which are submitted after the first day of January, two 
thousand three shall not be issued a permit without a mining and 
reclamation plan which is consistent with the criteria set forth in 
this subdivision.
    14.15.e.1  After the first day of January, two thousand three, 
the mining and reclamation plan for all active mining operations 
must be consistent with the applicable time criteria set forth in 
this paragraph. Where permit revisions are necessary to satisfy this 
requirement, the revisions shall be prepared and submitted to the 
Secretary for approval within 180 days. Full compliance with the 
revised mining and reclamation plan shall be accomplished within 
twelve (12) months from the date of the Secretary's approval.
    14.15.e.2  After the first day of January, two thousand three, 
the mining and reclamation plan for mining operations which have 
approved inactive status or when permits have been issued but the 
operation has not started must be consistent with the applicable 
time criteria of this paragraph. Where the permit revisions are 
necessary to satisfy this requirement, the revisions shall be 
prepared and submitted to the Secretary for approval within 180 
days. Full compliance with the revised mining and reclamation plan 
shall be accomplished within twelve (12) months from the date of the 
Secretary's approval.
    14.15.e.3  The Secretary may consider contemporaneous 
reclamation plans on multiple permitted areas with contiguous areas 
of disturbance to ensure that contemporaneous reclamation is 
practiced on a total operational basis. In order to establish a 
method of orderly transition between operations, plans submitted on 
multiple permitted areas cannot add allowable disturbed areas in 
such a manner as to result in increased disturbed areas on a single 
operation unless a variance is obtained pursuant to subdivision 
14.15.g.

    Subdivision 14.15.g.2 pertaining to required elements of a permit 
applications seeking a variance from contemporaneous reclamation 
standards, was amended by adding the words ``including a discussion and 
feasibility analysis of alternatives that were considered'' to the end 
of the paragraph.
    New subdivision 14.15.g.5 was added to require the following 
additional element to a permit application for a variance from 
contemporaneous reclamation standards:

    A detailed economic analysis including a discussion and 
feasibility analysis of possible alternatives that were considered 
must be submitted for variance requests that use economics as the 
basis for the request.

    New subdivision 14.15.i was added to provide as follows:

    Notwithstanding any provision of this rule to the contrary, 
revision of the mining and reclamation plan contained in a permit is 
required prior to any change in mining methods which would 
substantially affect the standards contained in this section.

CSR 38-4  Coal Related Dam Safety Rules

    These rules are new, and establish general and specific rules for 
design, placement, construction, enlargement, repair, removal, or 
abandonment of dams in West Virginia that are also regulated under West 
Virginia Surface Coal Mining and Reclamation Act 22-3 and West Virginia 
Surface Mining Reclamation Regulations CSR 38-2 by the WVDEP. The new 
Coal Related Dam Safety Rules were issued under the authority of W.Va. 
Code 22-14. The new rules consist of the following sections.

38-4-1  General.
38-4-2  Definitions.
38-4-3  Classification of dams.
38-4-4  Certificate of approval.
38-4-5  Application procedures.
38-4-6  Plans and specifications.
38-4-7  Design requirements
38-4-8  Subsidence evaluation.
38-4-9  Breakthrough potential evaluation.
38-4-10  Geotechnical considerations.
38-4-11  Structural considerations.
38-4-12  Construction or modification of dam.
38-4-13  Blasting.
38-4-14  Storm water discharge.
38-4-15  Erosion and sediment control.
38-4-16  Disposal of construction wastes.
38-4-17  Dust control.
38-4-18  Construction quality control.
38-4-19  Breaching of a dam.
38-4-20  Removal of a dam.
38-4-21  Abandonment of a dam.
38-4-22  Reduction of dam height to less than jurisdiction.
38-4-23  Enlargement of a structure to jurisdiction.
38-4-24  Sale or transfer of a dam.
38-4-25  Operation and maintenance.
38-4-26  Inspection, reporting and certification requirements.
38-4-27  Completion of construction.
38-4-28  Inspection of completed dam.
38-4-29  Inspection of dams with serious problems.
38-4-30  Reporting requirements.
38-4-31  Inspection and certification requirements.
38-4-32  Monitoring plans.
38-4-33  Emergency warning plans.
38-4-34  Emergency procedures.
38-4-35  Inspection and enforcement.
38-4-36  Application fee for certificate of approval of a dam.

III. Public Comment Procedures

    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 electric 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 Charleston 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 Charleston 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

[[Page 53545]]

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. (local time), on 
September 3, 2002. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We 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

[[Page 53546]]

determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 11, 2002.
Tim L. Dieringer,
Acting Regional Director Appalachian Regional Coordinating Center.
[FR Doc. 02-20821 Filed 8-15-02; 8:45 am]
BILLING CODE 4310-05-P