[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53200-53203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25551]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-082-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: OSM is announcing its approval of amendments and its decision
concerning the State's request that we reconsider certain decisions on
a previous program amendment to the West Virginia permanent regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The amendment revises the West Virginia surface mining
regulations concerning definitions of ``area mining operations'' and
``mountaintop mining operations;'' variances from approximate original
contour in steep slope areas; subsidence control plans; permit
issuance; construction tolerance; surface owner protection; and primary
and emergency spillway designs. The previous amendment being
reconsidered concerns subsidence regulations. The amendment is intended
to improve the operational efficiency of the State program, and to make
the regulations consistent with the counterpart Federal regulations.
EFFECTIVE DATE: October 1, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. You can find background information
on the West Virginia program, including the Secretary's findings, the
disposition of comments, and the conditions of the approval in the
January 21, 1981, Federal Register (46 FR 5915-5956). You can find
later actions concerning the West Virginia program and previous
amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Submission of the Amendment
By letter dated May 5, 1999 (Administrative Record Number WV-1127),
the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to the West Virginia permanent regulatory
program pursuant to 30 CFR 732.17. The amendment concerns changes to
the West Virginia regulations made by the State Legislature in House
Bill 2533 which was enacted on April 2, 1999. In addition, the WVDEP
requested that OSM reconsider its disapproval of parts of CSR 38-2-3.12
(concerning subsidence control plan) and 38-2-16.2 (concerning surface
owner protection) and remove the corresponding required regulatory
program amendments specified in the February 9, 1999, Federal Register
(64 FR 6201-6218) in light of the April 27, 1999, United States Court
of Appeals decision on Case No. 98-5320.
We announced receipt of the proposed amendment in the May 27, 1999,
Federal Register (64 FR 28771), invited public comment, and provided an
opportunity for a public hearing on the adequacy of the proposed
amendment. The public comment period closed on June 28, 1999. No one
requested an opportunity to speak at a public hearing, so none was
held.
III. Director's Findings
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, are our findings concerning the proposed amendment.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording changes or revised paragraph notations to
reflect organizational changes that result from this amendment.
1. CSR 38-2-2.11 Definition of ``Area Mining Operation.'' In this
new definition, ``Area Mining Operation'' is defined to mean a mining
operation where all disturbed areas are restored to approximate
original contour (AOC) unless the operation is located in steep
[[Page 53201]]
slope areas and a steep slope AOC variance in accordance with
subsection 14.12 of this rule has been approved. An area mining
operation may remove all or part of coal seam(s) in the upper fraction
of a mountain, ridge, or hill. However, it is not classified as a
mountaintop operation for one or more of the following reasons:
2.11.a. The site may be restored to AOC; or
2.11.b. The entire coal seam may not be removed.
There is no Federal definition of the term ``area mining
operation.'' However, we find that the term ``area mining operation''
does not include ``mountaintop-removal mining'' and is analogous with
the Federal requirements relating to ``steep slope mining.'' Because
the definition is not inconsistent with SMCRA or the Federal
regulations it can be approved.
2. CSR 38-2-2.78 Definition of ``Mountaintop Mining Operation.'' In
this new definition, ``Mountaintop Mining Operation'' is defined to
mean a mining operation that removes an entire coal seam or seam(s) in
an upper fraction of a mountain, ridge, or hill and creating a level
plateau or a gently rolling contour with no highwalls. The approved
postmining land use must be in accordance with Sec. 22-3-13(c)(3) of
the West Virginia Code. We find the definition of ``mountaintop mining
operation'' to be substantively identical to the Federal regulations
governing ``mountaintop removal mining'' at 30 CFR 824.11(a)(2) and it
is, therefore, approved.
3. CSR 38-2-3.12 Subsidence control plan. Subdivision 3.12.a.2. is
amended to change the words ``could contaminate, diminish or * * *'' to
read ``could be contaminated, diminish or * * *'' We find that this
change helps to clarify the meaning of this provision and can be
approved. However, the proposed change has not satisfied the required
amendment at 30 CFR 948.16(aaaa). The second paragraph of subdivision
3.12.a.2. is amended by adding the word ``building'' to read as
follows: ``A survey of the condition of all non-commercial building or
residential * * *'' We find that the addition of the word ``building''
at Subdivision 3.12.a.2 is no less effective than 30 CFR 784.20(a)(3)
and can be approved.
Subdivision 3.12.a.2.B. is amended to change the words ``Non-
commercial building as used in this section means, other than * * *''
to read ``Non-commercial building as used in this section means any
building, other than * * *'' We find that this change clarifies the
meaning of this provision and can be approved. However, the required
amendment at 30 CFR 948.16(cccc) still remains unsatisfied because the
definition of ``non-commercial building'' does not include such
buildings used on a temporary basis as provided by 30 CFR 701.5.
4. CSR 38-2-3.32.b. Findings--permit issuance. In the third
paragraph, the name of the database ``Surface Mining Information
System'' is deleted and replaced by ``Environmental Resources
Information Network.'' We find that this name change more accurately
describes the WVDEP's surface mine database management system. The
proposed revision does not render the West Virginia program less
effective than the Federal requirements and, therefore, can be
approved.
5. CSR 38-2-3.35 Construction tolerance. This subsection is amended
by adding the title ``Construction Tolerance.'' We find that this
change clarifies the purpose of the provisions at subdivision 3.35 and
can be approved.
6. CSR 38-2-14.12.a.1. Variance from approximate original contour
requirements. This provision is amended by adding the following
language: ``and the land after reclamation is suitable for industrial,
commercial, residential or public use (including recreational
facilities).'' As amended the provision reads as follows. ``The permit
area is located on steep slopes as defined in subdivision 14.8.a. of
this rule and the land after reclamation is suitable for industrial,
commercial, residential or public use (including recreational
facilities).'' We find that the new language is substantively identical
to the Federal regulations at 30 CFR 785.16(a)(1), pertaining to
variance from the approximate original contour (AOC) requirement for
steep slope mining operations, and can be approved. This revision
satisfies the required amendment at 30 CFR 948.16(mmm) which can be
removed.
7. CSR 38-2-16.2. Surface owner protection. Subdivision 38-2-
16.2.c. is amended by adding the word ``damage'' after the word
``Material'' at the beginning of the first sentence. In addition, the
words ``or facility'' are added after the word ``structure'' and before
the word ``from'' near the end of the first sentence. We find that
these changes, which are no less effective than 30 CFR 701.5, clarify
the meaning of the term ``material damage'' and, therefore, can be
approved.
Subdivision 38-2-16.2.c.3. is amended to delete the word ``occurs''
after the words ``subsidence damage'' and before the words ``to any.''
We find that this change eliminates a redundant word and clarifies the
meaning of this provision and can be approved.
8. CSR 38-2-22.4.g. Primary and emergency spillway design. This
subdivision is amended by changing the probable maximum precipitation
(PMP) event for impoundments meeting the size or other criteria of 30
CFR 77.216(a) from a 24-hour storm event to a ``six (6)'' hour storm
event. This change has been submitted in response to a required program
amendment codified at 30 CFR 948.16(uuu). On February 21, 1996 (61 FR
6528) the Director determined that the State's PMP 24-hour storm event
standard would be impossible to implement because the U.S. Weather
Service's document ``Rainfall Frequency Atlas'' does not have data
charts concerning PMP for a 24-hour storm event. The ``Rainfall
Frequency Atlas'' does, however, contain data charts for PMP 6-hour
storm events. We find that with this change, the provision is
substantively identical to the Federal regulations at 30 CFR 816/
817.84(b)(2) and which specify the PMP 6-hour storm event. We also find
that this amendment satisfies the required program amendment codified
at 30 CFR 948.16 (uuu) which can be removed.
9. WVDEP request that OSM reconsider certain decisions and required
amendments published in the February 9, 1999, Federal Register (64 FR
6201-6218).
Along with its submittal of this amendment, the WVDEP also
requested that we reconsider our disapproval of amendments and the
related required amendments to the West Virginia program in the
February 9, 1999, Federal Register (64 FR 6201-6218). In that notice,
we disapproved parts of CSR 38-2-3.12 (concerning subsidence control
plan) and 38-2-16.2 (concerning surface owner protection) and added
related required regulatory program amendments. The WVDEP cited the
United States Court of Appeals decision in National Mining Ass'n. v.
Babbitt, 172 F.3d 906 (D.C. Cir. 1999), as the basis for its request.
In the above referenced decision, the Court struck down two OSM
regulations on coal mine subsidence. First, the Court of Appeals
vacated 30 CFR 817.121(c)(4)(i), which established a rebuttable
presumption that damage to any noncommercial building or occupied
residential dwelling or structure related thereto, resulting from earth
movement occurring within the ``angle of draw'' of an underground
mining operation, was caused by subsidence from that mining operation.
172 F.3d at 913. The Court also struck down a portion of 30 CFR
784.20(a)(3) that required coal operators to conduct
[[Page 53202]]
presubsidence structural condition surveys. The Court vacated this
provision because the area in which the survey was required was defined
by reference to the angle of draw, which the Court found to be an
arbitrary and capricious basis for the establishment of a rebuttable
presumption. Id. at 915. The two regulations that were struck down were
among those issued on March 31, 1995, at 60 FR 16722-51, pursuant to
SMCRA and section 2504 of the Energy Policy Act of 1992. The Energy
Policy Act of 1992 added a new section 720 to SMCRA. Section 720
requires underground mine operators to repair or to compensate for
material damage to residential structures and noncommercial buildings,
and to replace residential water supplies adversely affected by
underground mining.
As the WVDEP requested, we reviewed the findings that we made in
the February 9, 1999, Federal Register notice in the light of the Court
of Appeals decision cited above. Based on our review, we have
determined that some of our decisions and required amendments are
affected by the Court's decisions. Therefore, in a future Federal
Register notice, we will identify the specific findings, decisions and
required amendments that are affected by the Court's decision. We will
open a public comment period and will ask for public comment on the
decisions that we propose to amend and the required amendments that we
propose to delete.
IV. Summary and Disposition of Comments
Federal Agency Comments
As required by 30 CFR 732.17(h)(11)(i), we solicited comments on
the proposed amendment from various Federal agencies with an actual or
potential interest in the West Virginia program on May 21, 1999. The
U.S. Department of Labor, Mine Safety and Health Administration
responded and stated that it had no comments.
Public Comments
We solicited public comments on the amendment. No comments were
received.
U.S. Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated 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.). We determined that none of the amendments required EPA
concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), we solicited comments on the
proposed amendment from EPA. The EPA responded and stated that it had
no objections to the proposed revisions. The EPA recommended, however,
that the definition of ``mountaintop mining operation'' at CSR 38-2-
2.78 be clarified. The EPA stated that the definition gives the
impression that approval of an AOC variance is not necessary to create
the level area as long as an approved postmining land use plan is
approved. The EPA recommended that the definition be amended to clarify
that W.Va Code 22-3-13(c)(3) includes a requirement of an AOC variance.
In response, we agree that amending the definition as recommended by
EPA would add to its clarity. However, since the proposed definition
already requires compliance with W.Va Code 22-3-13(c)(3), which
requires that an operator be granted a variance in order to be exempt
from the AOC requirement for a mountaintop-removal operation, we
conclude that the additional clarification to the definition is not
necessary.
V. Director's Decision
Based on the findings above, we are approving the proposed
amendments. In a future Federal Register notice, we will identify the
specific findings decisions and required amendments published in our
February 9, 1999, Federal Register notice that are affected by the
United States Court of Appeals decision in National Mining Ass'n. v.
Babbitt, 172 F.3d 906 (D.C. Cir. 1999). We will open a public comment
period and will ask for public comment on the decisions that we propose
to amend and the required amendments that we propose to delete.
The Federal regulations at 30 CFR 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision. The required regulatory program amendments codified at
30 CFR 948.16(mmm) and CFR 948.16(uuu) are being removed. This final
rule is being made effective immediately to expedite the State program
amendment process and to encourage States to bring their programs into
conformity with the Federal standards without undue delay. Consistency
of State and Federal standards is required by SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, 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 since each such
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 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.
National Environmental Policy Act
No environmental impact statement is required for this rule since
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 has determined 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
corresponding 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. Accordingly, this rule will ensure that
[[Page 53203]]
existing requirements previously promulgated by OSM will be implemented
by the State. 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 corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 7, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 948--WEST VIRGINIA
1. The authority citation for part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
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Original amendment submission Date of final
date publication Citation/description
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* * * *
* * *
May 5, 1999................... 10-1-99.......... CSR 38-2-2.11; 2.78;
3.12.a.2, and .2.B;
3.32.b; 3.35;
14.12.a.1; 16.2.c,
and .c.3; and
22.4.g.
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Sec. 948.16 [Amended]
3. Section 948.16 is amended by removing and reserving paragraphs
(mmm) and (uuu).
[FR Doc. 99-25551 Filed 9-30-99; 8:45 am]
BILLING CODE 4310-05-P
