[Federal Register Volume 84, Number 64 (Wednesday, April 3, 2019)]
[Proposed Rules]
[Pages 12984-12987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06494]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-124-FOR; Docket ID: OSM-2016-0012; S1D1S SS08011000 SX064A000
190S180110; S2D2S SS08011000 SX064A000 19XS501520]
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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[[Page 12985]]
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are announcing receipt of a proposed amendment to the West
Virginia permanent regulatory program under the Surface Mining Control
and Reclamation Act (SMCRA or the Act). On June 14, 2016, West Virginia
Department of Environmental Protection (WVDEP) submitted a program
amendment to OSMRE that includes regulatory revisions, authorized under
the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA),
relating to bonding requirements for operations seeking permit
renewals, topsoil, inactive status, and contemporaneous reclamation.
This document gives the times and locations that the West Virginia
program and this 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.,
Eastern Daylight Time (e.d.t.), May 3, 2019. If requested, we will hold
a public hearing on the amendment on April 29, 2019. We will accept
requests to speak at a hearing until 4 p.m., e.d.t. on April 18, 2019.
ADDRESSES: You may submit comments, identified by WV-124-FOR, by any of
the following methods:
Mail/Hand Delivery: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street, East Charleston, West Virginia
25301.
Federal eRulemaking Portal: The amendment has been
assigned the Docket ID OSM-2016-0012. If you would like to submit
comments go to http://www.regulations.gov. Follow the instructions for
submitting comments.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to 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, you must go to the address listed below during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the amendment by contacting OSMRE's Charleston
Field Office or the full text of the program amendment is available for
you to read at www.regulations.gov.
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia
25301, Email: [email protected].
West Virginia Department of Environmental Protection, 601 57th Street,
SE, Charleston, WV 25304, Telephone: (304) 926-0490.
In addition, you may review a copy of the amendment during regular
business hours at the following locations:
Morgantown Area Office, Office of Surface Mining Reclamation and
Enforcement, 604 Cheat Road, Suite 150, Morgantown, West Virginia
26508, Telephone: (304) 291-4004. (By Appointment Only)
Beckley Area Office, Office of Surface Mining Reclamation and
Enforcement, 313 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. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description and Submission 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, State laws and regulations
that govern surface coal mining and reclamation operations in
accordance with the Act and consistent with the Federal regulations.
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 the West Virginia
program and program amendments at 30 CFR 948.10, 948.12, 948.13,
948.15, and 948.16.
II. Description and Submission of the Proposed Amendment
By letter dated June 14, 2016, and received by OSMRE on June 21,
2016 (Administrative Record No. WV-1606), WVDEP submitted an amendment
to its permanent regulatory program under SMCRA (30 U.S.C. 1201 et
seq.). The proposed amendment consists of regulatory revisions to West
Virginia's Surface Mining Reclamation Regulations at Code of State
Regulations (CSR) Title 38, Series 2. The full text of the program
amendment is available for you to read at the locations listed above
under ADDRESSES.
Senate Bill No. 357 (SB 357) was adopted by the West Virginia
Legislature on March 3, 2015, and was approved by the Governor on March
12, 2015. On March 25, 2015, WVDEP notified OSMRE of the passage of SB
357 (Administrative Record No. WV-1604). Senate Bill 357 authorized
WVDEP to promulgate several revisions to its Surface Mining Reclamation
Regulations. The bill amended West Virginia Code Sections 22-3-13 and
19 and authorized WVDEP to promulgate revisions to its contemporaneous
reclamation and inactive status regulations.
Committee Substitute for House Bill 117 (HB 117) was passed by the
West Virginia Legislature on June 2, 2016. With the passage of HB 117,
the Legislature authorized a legislative rule filed by WVDEP in the
State Register on July 27, 2015, that includes revisions regarding
contemporaneous reclamation, inactive status and topsoil. In addition,
the Legislature authorized amendments regarding bonding requirements
for permit renewals and incremental bonding for permit renewals. In
accordance with HB 117, WVDEP filed revised regulations with the
Secretary of State on June 10, 2016.
1. CSR 38-2-3.27--Permit Renewals
WVDEP proposes to amend its regulations at CSR 38-2-3.27. As
proposed, once an operation has received a waiver of the permit renewal
requirement, it is exempt from the restriction contained in paragraph
11.4.a.2 regarding changing from full permit bonding to incremental
bonding, and the operation may submit a bonding revision to the
Secretary for approval.
This proposed State revision falls under the Federal provisions at
30 CFR 800.11 and section 509 of SMCRA.
2. CSR 38-2-7.6--Forest land
WVDEP is proposing to amend its Forest land requirements at
subsection 7.6.c, Soil placement and Substitute
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material, by replacing the word topsoil with soil before the word
substitute and after the word volume in subparagraph c.2, adding soil
substitute after the words soil in subparagraph c.3, and deleting the
word soil after the words uniform and minimum in subparagraph 7.6.d.1
relating to Liming and Fertilizing.
These proposed revisions fall under the Federal provisions at 30
CFR 779.21, 780.18, 816/817.71(e), 816/817.22(b), 816/817.22(d), 816/
817.71(e) and 816/817.102(a) and section 515(b)(5) and (b)(6) of SMCRA.
3. CSR 38-2-7.7--Wildlife
WVDEP is proposing to amend its wildlife requirements at subsection
7.7.c, Soil placement and Substitute material, by replacing the word
topsoil with soil before the word substitute and after the word volume
in subparagraph c.2, adding soil substitute after the words soil in
subparagraph c.3, and deleting the word soil after the words uniform
and minimum in subparagraph 7.7.d.1 relating to Liming and Fertilizing.
These proposed revisions fall under the Federal provisions at 30
CFR 779.21, 780.18, 816/817.71(e), 816/817.22(b), 816/817.22(d), 816/
817.71(e) and 816/817.102(a) and section 515(b)(5) and (b)(6) of SMCRA.
4. CSR 38-2-11.4.a.2--Incremental Bonding
The State is proposing to amend its regulations at CSR 38-2-
11.4.a.2. As amended, a proviso was added to this subparagraph which
provides that operations that have received a waiver of the permit
renewal requirements are exempt, and the operation [operator] may
submit a bonding revision to the Secretary for approval.
This proposed State revision falls under the Federal provisions at
30 CFR 800.11 and section 509 of SMCRA.
5. CSR 38-2-14.3--Topsoil
This proposed amendment addresses a conflicting use and
misinterpretation of the terms ``topsoil'', ``topsoil substitute'',
``soil'', and ``soil substitute'' that was apparent in a 30 CFR part
733 review of a petition to OSMRE dated June 24, 2013 (Administrative
Record Number WV-1609). The proposed topsoil revisions include a
reference, in Subsection 14.3.a, to the State's definition of topsoil,
which is already part of the approved State program. This paragraph is
also amended to provide that where the topsoil is less than six inches
thick, topsoil and unconsolidated materials below it may be removed and
treated, in combination, as topsoil. Subsection 14.3.c. would allow the
use of substitutes where it can be shown that the existing topsoil is
inadequate in quality or quantity to support and maintain the approved
postmining land use.
These proposed State revisions fall under the Federal provisions at
30 CFR 816.22 and 817.22 and subsections 515(b)(5) and (b)(6) of SMCRA.
6. CSR 38-2-14.11--Inactive Status
West Virginia seeks to revise its regulations at CSR 38-2-14.11 by
addressing and clarifying the time limits including inactive status
(renewable), bonding requirements, and procedure for inactive status.
The proposed revisions to the State's inactive status requirements
include revisions to subparagraphs 14.11.a.6, d, d.1., d.2., d.3, e, f,
g, and h, and the deletion of subparagraph 14.11.c in its entirety and
portions of subparagraph 14.11.d. The changes include the proposed
elimination of public notice and opportunity for public comment on an
application for inactive status, as well as a proposal to change the
period within which inactive operations must be capable of restarting
from 60 days to 180 days and not allowing the total time for inactive
status to exceed three years. Finally, full cost reclamation bonds for
permits on inactive status will not have to remain in effect for the
life of the operation.
These proposed State revisions fall under the Federal provisions at
30 CFR 816.131 and 817.131 and sections 501, 503, 509, 510, 515 and 516
of SMCRA.
7. CSR 38-2-14.15--Contemporaneous Reclamation, Backfilling and
Grading, Excess Spoil Disposal, Variance
West Virginia also seeks to revise program requirements at CSR 38-
2-14.15 by addressing and clarifying time, distance and acreage
requirements for contemporaneous reclamation standards. It also
clarifies the bonding requirements for a contemporaneous reclamation
variance and a procedure to remove it once the variance is no longer
needed.
WVDEP proposes to revise subparagraph 14.15.b.1 to eliminate the
maximum exceeding acreage requirement of 35 acres, provided that the
requirements stipulated in subparagraphs 14.15.d and 14.15.c.2 are met.
Subparagraph 14.15.b.3 is proposed to be revised to extend the
timeframe within which grading and backfilling is to be completed from
35 to 60 days and to increase the distance for the same activity from
one thousand (1000) feet to one thousand five hundred (1500) feet.
Subparagraph 14.15.b.4 contains a revision to clarify for a stair
step mining approach with multiple steps that the subsequent cut of the
underlying seam occurs within one hundred eighty (180) days from the
initial pit excavation with backfilling and regrading to follow within
one hundred eighty (180) days of removal of the lowest seam in the
operation.
Subparagraphs 14.15.b.5, 14.15.b6.A and 14.15.b.6.B.2 are proposed
to change similar language as addressed in 14.15.b.4. The proposed
revision to subparagraph 14.15.b.6.B.1 seeks to eliminate redundancy,
as this stipulation is already addressed in subparagraph 14.15.b.6.A.
The proposed State revisions regarding contemporaneous reclamation
fall under the Federal provisions at 30 CFR 816.100, 816.101, 816.102,
and subsections 515(b)(16), (c), (d) and (e) of SMCRA.
The proposed State revisions regarding excess spoil disposal fall
under the Federal provisions at 30 CFR 816.71, 816.100, 816.101,
816.102 and subsections 515(b)(16), and (b)(22) of SMCRA.
The proposed State revisions regarding variances fall under the
Federal provisions at 30 CFR 785.14, 785.15, 785.16, 816.100, 816.101,
816.102, and subsections 515(b)(16), (c), (d) and (e) of SMCRA.
8. CSR 38-2-22.3.t.4--Coal Refuse--Abandonment Plan
WVDEP proposes to delete the word ``topsoiling'' near the end of
this requirement. Instead of topsoiling refuse, an operator will cover
fine refuse in an impoundment with coarse refuse or other fill material
prior to it being covered with the non-toxic and non-combustible
material.
The proposed State revision regarding coal refuse disposal
abandonment plans fall under the Federal provisions at 30 CFR
780.25(d), 784.16(d), 816/817.81, 816/817.83, and 816/817.84, and
subsections 515(b)(11), (13), and (f) and 516(b)(5) of SMCRA.
IV. 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.
Electronic or Written Comments
If you submit written or electronic comments, they should be
specific, confined to issues pertinent to the proposed regulations, and
explain the
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reason for any recommended change(s). We appreciate any and all
comments, but those most useful and likely to influence decisions on
the final regulations will be those that either involve personal
experience or include citations to and analyses of SMCRA, its
legislative history, its implementing regulations, case law, other
pertinent State or Federal laws or regulations, technical literature,
or other relevant publications.
We cannot ensure that comments received after the close of the
comment period (see DATES) or sent to an address other than those
listed (see ADDRESSES) will be included in the docket for this
rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.d.t. on
April 18, 2019. If you are disabled and need reasonable 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.
V. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
Pursuant to Office of Management and Budget (OMB) Guidance and
dated October 12, 1993, the approval of state program amendments is
exempted from OMB review under Executive Order 12866.
Other Laws and Executive Orders Affecting Rulemaking
When a State submits a program amendment to OSMRE for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an opportunity for public comment. We
conclude our review of the proposed amendment after the close of the
public comment period and determine whether the amendment should be
approved, approved in part, or not approved. At that time, we will also
make the determinations and certifications required by the various laws
and executive orders governing the rulemaking process and include them
in the final rule.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 12, 2018.
Thomas D. Shope,
Regional Director, Appalachian Region.
Editorial Note: This document was received for publication by
the Office of the Federal Register on March 29, 2019.
[FR Doc. 2019-06494 Filed 4-2-19; 8:45 am]
BILLING CODE 4310-05-P