[Federal Register Volume 68, Number 147 (Thursday, July 31, 2003)]
[Proposed Rules]
[Pages 44910-44913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19436]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-091-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; reopening of public comment period.

-----------------------------------------------------------------------

SUMMARY: We are reopening the comment period to provide the public an 
opportunity to review and comment on a document submitted by the State 
of West Virginia which further clarifies a proposed amendment to the 
State's regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
consists of changes to the West Virginia Surface Mining Reclamation 
Regulations as contained in House Bill 2663. The amendment is intended 
to improve the effectiveness of the West Virginia program.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on August 15, 2003.

ADDRESSES: You should mail or hand-deliver written comments to Mr. 
Roger W. Calhoun, Director, Charleston Field Office at the address 
listed below.
    You may review copies of the West Virginia program, the amendment, 
the clarification document, 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 and the State's clarification 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: 
chfo@osmre.gov.
    West Virginia Department of Environmental Protection, 10 McJunkin 
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510.
    In addition, you may review copies of the proposed amendment and 
the related document during regular business hours at the following 
locations:
    Office of Surface Mining Reclamation and Enforcement, Morgantown 
Area Office, 75 High Street, Room 229, PO 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: 
chfo@osmre.gov.

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 program includes, among other things, ``* * *

[[Page 44911]]

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 May 2, 2001, the West Virginia Department of 
Environmental Protection (WVDEP) sent us a proposed amendment to its 
program (Administrative Record Number WV-1209) under SMCRA (30 U.S.C. 
1201 et seq.). The program amendment consisted of changes to the West 
Virginia Surface Mining Reclamation Regulations at 38 Code of State 
Regulations (CSR) Series 2 as amended by House Bill 2663. The proposed 
amendment responded, in part, to the required program amendments 
codified in the Federal regulations at 30 CFR 948.16(xx), (qqq), (zzz), 
(ffff), (gggg), (hhhh), (jjjj), (nnnn), and (pppp). In order to 
expedite our review of the State's responses to the required 
amendments, we separated those amendments from the current amendment 
and we published our approval of those amendments in the Federal 
Register on May 1, 2002 (67 FR 21904).
    On February 26, 2003, we sent the State a list of questions to help 
us better understand the remaining proposed amendments (Administrative 
Record Number WV-1365). The State responded by letter dated July 1, 
2003 (Administrative Record Number WV-1365). The State's response is 
quoted below.

    The following is additional clarification to Office of Surface 
Mining in answer to questions posed by OSM concerning the deletion of 
the definition for ``cumulative impact,'' the addition of a definition 
of ``material damage to the hydrologic balance outside the permit 
area,'' and the addition of a provision qualifying certain coal removal 
during reclamation as government financed construction exempt from a 
permit. These rules were passed in the 2001 Legislative session and 
were submitted to OSM as program amendments in May 2001. The rationale 
for these changes are to provide a narrative standard for reviewers to 
utilize when making findings relative to the hydrologic balance in and 
around the area of the proposed mining operation and to make the State 
delegated program language more similar to the Federal regulations.

[Material Damage and Cumulative Impact at CSR 38-2-3.22.e and CSR 38-2-
2.39, respectively.]

    The changes in the West Virginia Surface Mining Reclamation Rules 
relative to the added phrase defining ``material damage to the 
hydrologic balance outside the permit area'' and deleting the defined 
term ``cumulative impact'' are addressed together. These changes were 
made to set forth some objective criteria to use in making the 
determination required by SMCRA that a proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. The added definition in the West Virginia rules 
provides a narrative standard, based upon use, for the reviewer to 
apply to make the required findings rather than leaving the 
threshold(s) to be assigned to the unguided discretion of an individual 
reviewer.
    The Federal regulations at 30 CFR 773.15(e) requires [a 
determination that the proposed operation has been designed to prevent] 
material damage to the offsite hydrologic balance. The Federal program 
does not currently contain a standard, narrative or otherwise, to 
ascertain when such material damage would occur. Rather, the Federal 
program appears to leave this call to the discretion of the States. 
However, the Federal program does contain material damage criteria for 
the effects of mining associated with subsidence and alluvial valley 
floors based upon functionality and use (See 30 CFR 701.5). The 
definition submitted as a program amendment establishes a narrative 
threshold for material damage to the hydrologic balance, which is 
patterned after related definitions in the federal program, and is 
based upon the use of State waters. Additionally, the proposed 
definition is consistent with the administration and implementation of 
the State counterpart to the Clean Water Act in that the use of State 
waters established under the water program is recognized when the State 
SMCRA authority makes the assessment of cumulative hydrologic impacts.
    Including the narrative threshold for material damage to the 
hydrologic balance obviates the need for the definition for 
``cumulative impact.'' Even though the definition of ``cumulative 
impact'' is deleted, the defined term ``cumulative impact area'' 
remains. In addition, other sections of the WV rules require the 
applicant to show no material damage outside of the permit area and to 
assess the cumulative impacts within the cumulative impact area.
    The reviewer of a proposal to conduct mining operations must 
delineate the area to be considered in assessing hydrologic 
consequences in accordance with the statute, rules and 1999 CHIA 
Writing Guidelines utilizing the actual or designated use and 
parameters designed to protect the same, as established by the WVDEP 
Division of Water Resources. The uses are outlined in the West Virginia 
Legislative rules 46CSR1 and include the propagation and maintenance of 
fish and other aquatic life. Water quality standards were designed to 
protect established uses. A review process wherein the SMCRA authority 
would develop or utilize thresholds/parameters for effluent discharges 
other than those established by the Clean Water Act program would 
likely result in interfering with the administration of the CWA. The 
WVDEP approach considers the numerical limits and water resource use 
designated by the water quality programs to make the assessment 
required by the mining program, thus precluding such interference.

[Exemption for Government-Financed Construction at CSR 38-2-3.31.c.]

    The change to allow coal removal in conjunction with a reclamation 
project is designed to encourage/result in low cost or no-cost 
reclamation as provided for in the federal program (see 30 CFR 707.5). 
The state rule contains the same language as the federal regulations, 
except the State refers to the WV code and the federal counterpart 
refers to Title IV. The WV Code 22-3-28(e) is a subsection of 22-3-28. 
It is the only subsection that mentions government-financed 
reclamation. Therefore, it is obvious that subsection (e) is the only 
applicable subsection to which 38CSR2-3.31(c) could apply.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment, as further clarified in the State's 
clarification letter dated July 1, 2003, satisfies the applicable 
program

[[Page 44912]]

approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the West Virginia 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 may 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, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn: SATS NO. WV-091--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 organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

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 exempt 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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

[[Page 44913]]

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 analysis performed under various laws 
and executive orders for the counterpart Federal regulations.

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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 18, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-19436 Filed 7-30-03; 8:45 am]
BILLING CODE 4310-05-P