[Federal Register Volume 69, Number 116 (Thursday, June 17, 2004)]
[Rules and Regulations]
[Pages 33851-33854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13673]



[[Page 33851]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-101-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: We are removing a required program amendment from the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The required program 
amendment concerns tree stocking standards for mountaintop removal 
mining operations with a variance from the requirement to restore the 
site after mining to approximate original contour (AOC) and with an 
approved postmining land use of commercial forestry and forestry. The 
removal of the required amendment is intended to acknowledge actions 
taken by the State to render the West Virginia program no less 
effective than the Federal regulations.

DATES: Effective Date: June 17, 2004.

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

SUPPLEMENTARY INFORMATION

I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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, ``* * * 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. Submission of the Amendment

    By letters dated March 14, 2000, and March 28, 2000, and electronic 
mail dated April 5, 2000 (Administrative Record Numbers WV-1147, WV-
1148, and WV-1149, respectively), the West Virginia Department of 
Environmental Protection (WVDEP) submitted an amendment to its surface 
coal mining regulatory program. Among other things, the amendment added 
new Code of State Regulations (CSR) 38-2-7.4 concerning standards 
applicable to AOC variance operations with a postmining land use of 
commercial forestry and forestry. CSR 38-2-7.4.b.1.I sets forth the 
standards of success for the commercial forestry postmining land use. 
We announced our approval of CSR 38-2-7.4, with an exception noted 
below, on August 18, 2000 (65 FR 50409) (Administrative Record Number 
WV-1174).
    In our August 18, 2000, Federal Register notice, we did not approve 
the new tree stocking standards for commercial forestry and forestry 
postmining land use, because there was no evidence that the West 
Virginia Division of Forestry had reviewed and approved the proposed 
standards as is required by the Federal regulations at 30 CFR 
816.116(b)(3)(i) (65 FR at 50422). Therefore, we required that the 
WVDEP consult with and obtain the approval of the Division of Forestry 
on the new stocking standards for commercial forestry and forestry at 
CSR 38-2-7.4.b.1.I. We codified this requirement in the Federal 
regulations at 30 CFR 948.16(aaaaa).
    Under the Federal regulations at 30 CFR 816.116(b)(3)(i), the 
approval of the stocking standards may be on a program-wide or permit-
specific basis. Since a program-wide approval had not yet been granted 
by the Division of Forestry at the time of our August 18, 2000, 
decision, we determined that the WVDEP must obtain approval on a 
permit-specific basis until such time that it received program-wide 
approval by the Division of Forestry.
    By letter dated February 26, 2002, (Administrative Record Number 
WV-1276), the WVDEP, Division of Mining and Reclamation submitted, 
among other materials, a letter dated November 17, 2000, from the 
Division of Forestry to the WVDEP. In that letter, the Division of 
Forestry approved, on a statewide basis, the stocking rates at CSR 38-
2-7.4, concerning standards applicable to mountaintop removal mining 
operations with a postmining land use of commercial forestry and 
forestry.
    The November 17, 2000, letter from the Division of Forestry to the 
WVDEP appeared to satisfy the required program amendment codified in 
the Federal regulations at 30 CFR 948.16(aaaaa). Therefore, in the 
March 25, 2004, Federal Register, we proposed to remove the required 
program amendment at 30 CFR 948.16(aaaaa) from the West Virginia 
program (69 FR 15275). In the same document, we opened the public 
comment and provided an opportunity for a public hearing or meeting on 
the adequacy of the proposed removal of the required program amendment 
(Administrative Record Number WV-1387). We did not hold a hearing or a 
meeting because no one requested one. The public comment period closed 
on April 26, 2004. We received comments from one individual that are 
discussed below.

III. OSM's Findings

    The required program amendment at 30 CFR 948.16(aaaaa) provides 
that the WVDEP must ``consult with and obtain the approval of the West 
Virginia Division of Forestry on the new stocking standards for 
commercial forestry and forestry at CSR 38-2-7.4.b.1.I.'' As we noted 
above, by letter dated February 26, 2002, the WVDEP, Division of Mining 
and Reclamation submitted, among other materials, a letter dated 
November 17, 2000, from the Division of Forestry to the WVDEP. In that 
letter, the Division of Forestry approved, on a statewide basis, the 
stocking rates at CSR 38-2-7.4, concerning success standards applicable 
to mountaintop removal mining operations with a postmining land use of 
commercial forestry and forestry.
    As required by the Federal regulations at 30 CFR 948.116(b)(3)(i), 
the WVDEP has established minimum statewide stocking rates at CSR 38-2-
7.4.b.1.I on the basis of local and regional conditions and after 
consultation with and the approval by the West Virginia Division of 
Forestry. Therefore, we find that the November 17, 2000, letter from 
the Division of Forestry to the WVDEP, Division of Mining and 
Reclamation

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satisfies the required program amendment at 30 CFR 948.16(aaaaa), which 
can be removed.
    We did not approve the tree stocking standards for commercial 
forestry and forestry postmining land use at CSR 38-2-7.4.b.1.I. in our 
August 18, 2000, decision because there was no evidence that the West 
Virginia Division of Forestry had reviewed and approved the proposed 
standards as is required by the Federal regulations at 30 CFR 
816.116(b)(3)(i). Consequently, we prohibited the WVDEP from 
implementing those standards until the required amendment at 30 CFR 
948.16(aaaaa) had been satisfied. That is, we only needed the Division 
of Forestry's concurrence to find the standards at CSR 38-2-7.4.b.1.I. 
to be consistent with the Federal regulations at 30 CFR 816.116(b)(3). 
Because the concurrence of the Division of Forestry has been received 
and the required program amendment at 30 CFR 948.16(aaaaa) has been 
satisfied, we are approving the stocking rates at CSR 38-2-7.4.b.1.I. 
These standards can now be implemented on a statewide basis.

IV. Summary and Disposition of Comments

Public Comments

    One comment was received in response to our request for comments 
from the public on the proposed removal of the required program 
amendment at 30 CFR 948.16(aaaaa) (see section II of this preamble). 
The commenter requested that the proposed rule to remove the required 
amendment at 30 CFR 948.16(aaaaa) be re-posted, because it was not 
clear exactly what was being proposed (Administrative Record Number WV-
1393).
    We disagree with the comment that the proposed rule notice 
published on March 25, 2004, is unclear. We believe that the proposed 
rule notice adequately describes the fact that we proposed to remove 
the required program amendment codified in the Federal regulations at 
30 CFR 948.16(aaaaa) because the State submitted a letter that 
satisfies the required amendment.
    In the March 25, 2004, proposed notice, we stated that ``we 
required that the WVDEP consult with and obtain the approval of the 
Division of Forestry on the new stocking standards for commercial 
forestry and forestry at CSR 38-2-7.4.b.1.I.'' We further stated that 
``[w]e codified this requirement in the Federal regulations at 30 CFR 
948.16(aaaaa).'' Also in the March 25, 2004, notice, we proposed to 
remove the required amendment at 30 CFR 948.16(aaaaa) because, we said, 
``it appears that the November 17, 2000, letter from the Division of 
Forestry to the WVDEP satisfies the required program amendment at 30 
CFR 948.16(aaaaa).''
    We also explained that the WVDEP, Division of Mining and 
Reclamation had submitted on February 26, 2002, a letter to us dated 
November 17, 2000, from the Division of Forestry to the WVDEP. In that 
letter, the Division of Forestry approved, on a statewide basis, the 
stocking rates at CSR 38-2-7.4, concerning standards applicable to 
mountaintop removal mining operations with a postmining land use of 
commercial forestry and forestry. We believe that we have adequately 
explained the purpose of the March 25, 2004, proposed rule notice and 
our proposed intent to remove the required program amendment codified 
at 30 CFR 948.16(aaaaa). Therefore, we maintain that the notice in 
question does not need to be re-posted.
    The commenter also stated that it was clear that mountaintop 
removal mining is causing environmental damage, and OSM has been lax 
and negligent in allowing this environmental damage to continue. In 
response, we believe that the State's adoption of the stocking 
standards for commercial forestry and forestry at CSR 38-2-7.4.b.1.I. 
will help ensure that mountaintop removal mining activities in the 
State will comply with the State requirements that are specifically 
authorized under SMCRA.
    We note that we received comments from the West Virginia Coal 
Association on the State's program amendments dated February 26, and a 
related submittal dated March 8, 2002, but none of the comments 
specifically addressed the stocking standards for commercial forestry 
and forestry at CSR 38-2-7.4.b.1.I., that were the subject of the 
required program amendment codified at 30 CFR 948.16(aaaaa).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on March 
11, 2002, we requested comments on the State's February 26 and March 8, 
2002, amendments from various Federal agencies with an actual or 
potential interest in the West Virginia program (Administrative Record 
Number WV-1284). We received comments from three Federal agencies which 
included the U.S. Army Corps of Engineers, the National Park Service, 
and the U.S. Environmental Protection Agency. However, none of the 
comments that we received from the National Park Service or the U.S. 
Army Corps of Engineers pertained to the State's stocking standards for 
mountaintop removal mining operations with a postmining land use of 
commercial forestry and forestry (Administrative Record Numbers WV-1289 
and WV-1291). We did not specifically ask for Federal agency comments 
on the proposed removal of 30 CFR 948.16(aaaaa).

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.).
    By letter dated March 11, 2002, we requested comments and the 
concurrence from EPA with regard to the State program amendments of 
February 26 and March 8, 2002, which included the Division of 
Forestry's concurrence on the State's proposed stocking standards for 
commercial forestry and forestry (Administrative Record Number WV-
1283).
    On April 10, 2002, EPA commented and provided its concurrence on 
the proposed State program amendments of February 26 and March 8, 2002 
(Administrative Record Number WV-1294). Because the proposed removal of 
the required amendment at 30 CFR 948.16(aaaaa) did not pertain to air 
or water quality standards, we did not ask EPA for its concurrence on 
the proposed removal of that required amendment after we announced our 
proposed rule in the Federal Register on March 25, 2004 (Administrative 
Record Number WV-1387). None of the earlier comments provided us by EPA 
pertained to the stocking standards for mountaintop removal mining 
operations with a postmining land use of commercial forestry and 
forestry.

V. OSM's Decision

    Based on the above findings, we are removing the required program 
amendment codified at 30 CFR 948.16(aaaaa) and we are approving the 
stocking standards for commercial forestry and forestry at CSR 38-2-
7.4.b.1.I.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 948, which codify decisions concerning the West Virginia 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the

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provisions of the Act and meeting its purposes. Making this rule 
effective immediately will expedite that process. SMCRA requires 
consistency of State and Federal standards.

VI. 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 Federal regulations 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 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: May 14, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 948 is amended as 
set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for part 948 continues to read as follows:

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


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


Sec.  948.15  Approval of West Virginia regulatory program amendments.

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                                            Date of publication of final
    Original amendment submission date                  rule                       Citation/description
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                                                  * * * * * * *
March 14, 2000, March 28, 2000, and April  June 17, 2004................  CSR 38-2-7.4.b.1.I.
 5, 2000.
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Sec.  948.16  [Amended]

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3. Section 948.16 is amended by removing and reserving paragraph 
(aaaaa).

[FR Doc. 04-13673 Filed 6-16-04; 8:45 am]
BILLING CODE 4310-05-P