[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17859-17861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9937]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-075-FOR]
West Virginia Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule.
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SUMMARY: OSM is announcing the receipt of proposed amendments to the
West Virginia permanent regulatory program (hereinafter referred to as
the West Virginia program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The amendments concern revisions to
the West Virginia Surface Mining Reclamation Regulations. The
amendments are intended to improve the clarity and effectiveness of the
West Virginia program, and to revise the State program to be consistent
with the corresponding Federal regulations.
DATES: Written comments must be received on or before 4:00 p.m. on May
23, 1996. If requested, a public hearing on the proposed amendments
will be held at 1:00 p.m. on May 20, 1996. Requests to present oral
testimony at the hearing must be received on or before 4:00 p.m. on May
8, 1996.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Mr. James C. Blankenship, Jr., Director,
Charleston Field Office at the address listed below.
Copies of the proposed amendment, the West Virginia program, and
the administrative record on the West Virginia program are available
for public review and copying at the addresses below, during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting the OSM Charleston Field Office.
Mr. James C. Blankenship, Jr., Director, Charleston Field Office,
Office of Surface Mining Reclamation and Enforcement, 1027 Virginia
Street, East, Charleston, West Virginia 25301, Telephone: (304) 347-
7158
West Virginia Division of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515.
In addition, copies of the proposed amendments are available for
inspection 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
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. James C. Blankenship, Jr.,
Director, Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. Background information on the West
Virginia program, including the Secretary's findings, the disposition
of comments, and the conditions of the approval can be found in the
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent
actions concerning the West Virginia program and previous amendments
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
By letter dated April 2, 1996 (Administrative Record Number WV-
1024), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to its approved permanent regulatory program
pursuant to 30b CFR 732.17. The amendment contains revisions to the
West Virginia Surface Mining Reclamation Regulations (CSR section 38-2-
1 et seq.).
The last time the State regulations were significantly revised was
on February 21, 1996. The Director partially approved the revisions in
the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR
948.15 for the provisions partially approved. See 30 CFR 948.16 for
required amendments.
Proposed Amendments
1. Section 38-2-2-106 Definition of ``Safety factor.'' This
definition is revised to mean the ratio of the sum of the resisting
forces to the sum of the loading or driving forces as determined by
acceptable engineering practices. Prior to this change, the term was
defined as the ratio of the sum of the resisting forces to the sum of
the loading forces.
2. Section 38-2-3.2(e) Readvertisement of permit applications. This
provision is amended by adding the phrase, ``that do not significantly
affect the health, safety or welfare of the public and,'' to the first
sentence. With this change, a limited number of minor
[[Page 17860]]
changes may be grouped and advertised in one additional notice if the
changes do not significantly affect the health, safety or welfare of
the public.
3. Section 38-2-2.6(h)(5) Certification of drainage/sediment
control structure designs. This provision is amended by changing a
cited reference concerning dams. ``Article 5D of Chapter 20'' is
deleted and replaced by ``Article 14 of Chapter 22.''
4. Section 38-2-3.8(c) Revision or reconstruction of existing
structures and support facilities. This provision is amended by adding
the following language: ``Provided, that those structures and
facilities, where it can be demonstrated that reconstruction or
revision would result in greater environmental harm and the performance
standards set forth in the Act and these regulations can otherwise be
met, may be exempt from revision or reconstruction.'' This amendment,
in effect, provides an alternative to requiring revision or
reconstruction of structures or support facilities in cases where
greater environmental harm would result from the revisions or
reconstruction.
5. Section 38-2-3.27 Permit renewals and extensions. The
introductory paragraph of this provision is amended by deleting the
work ``may'' and adding in its place the word ``shall.'' In addition,
language has been deleted that required all backfilling and grading be
completed within 60 days prior to the expiration date of the permit,
and that an application for Phase I bond release be filed prior to the
expiration date of the permit. As amended, the provision provides that
the Director of the Division of Environmental Protection (DEP) shall
waive the requirements for renewal if the permittee certifies in
writing that all coal extraction is completed, that all backfilling and
regrading will be completed and reclamation activities are ongoing.
6. Section 38-2-4.4 Infrequently used access road. This provision
is revised by deleting and adding rule citations. as amended,
infrequently used access roads may not be exempt from the requirements
of Secs. 38-2-4.2, 4.7(a), 4.8, 4.9, and 5.3.
7. Section 38-2-4.12 Certification of primary roads. This provision
is amended by deleting the requirement that changes documented in the
as-built plans be submitted to the Director of DEP as a permit
revision. In its place, the following language is added: ``If as-built
plans are submitted, the certification shall describe how and to what
extent the construction deviates from the proposed design, and shall
explain how and certify that the road will meet performance standards.
In effect, this amendments replaces a requirement that all changes
documented as-built plans be submitted as a permit revision, with a
requirement that when changes are certified, the certification shall
include an explanation and certification that the changes will meet
performance standards.
8. Section 38-2-5.4(c) Safety standards for embankment type
structures. The first paragraph of this provision is amended by
deleting the phrase ``which may include slurry impoundments.'' With
this amendment, the provision's safety standards apply to all
embankment type sediment control or other water retention structures.
9. Section 38-2-11.6(a) Review of permits for adequacy of bond.
This provision is amended to add a requirement that permits will not be
renewed until the appropriate amount of bond has been posted.
Also, subparagraphs (a) (2), (3), and (4) are deleted. These
subparagraphs provided that existing permits (for underground mines,
preparation plants, and coal refuse sites) shall be subject to the
site-specific bond criteria of Sec. 38-2-11.6 at the time of
application for renewal or mid-term review, shall not be renewed by the
Director of DEP until the appropriate amount of bond is posted. See the
first paragraph in 11.6(a) for language similar to that which is being
deleted.
10. Section 38-2-11.6( c)(6), (d)(6), (e)(5), (f)(5) Bond reduction
credits. These provisions are being amended to delete, in various
places, the phrase ``within five (5) years of the date of SMA
approval.'' In effect, the amount of bond reduction credits assigned is
no longer contingent upon the ``five years from the date of SMA
approval'' criterion.
11. Section 38-2-12.2(e) Bond release--chemical treatment. The
existing language of this provision is deleted and replaced by the
following:
Notwithstanding any other provisions of this rule, no bond
release or reduction will be granted if, at the time, water
discharged from or affected by the operation requires chemical
treatment in order to comply with applicable effluent limitations or
water quality standards; Provided, That the Director may approve a
request for Phase I but not Phase II or III, release if the
applicant demonstrates to the satisfaction of the Director that
either:
(A) The remaining bond is adequate to assure long term treatment
of the drainage; or
(B) The operator has irrevocably committed other financial
resources which are adequate to assure long term treatment of the
drainage; Provided, That the alternate financial resources must be
in acceptable form, and meet the standards set forth in Section 11
of the Act and Section 11 of these regulations; Provided, however,
That alternate financial arrangements shall provide a mechanism
whereby the Director can assume management of the resources and
treatment work in the event that the operator defaults for any
reason; And provided further, That default on a treatment obligation
under this paragraph shall be considered equivalent to a bond
forfeiture, and the operator will be subject to penalties and
sanctions, including permit blocking, as if a bond forfeiture had
occurred.
In order to make such demonstration as referenced above, the
applicant shall address, at a minimum, the current and projected
quantity and quality of drainage to be treated, the anticipated
duration of treatment, the estimated capital and operating cost of
the treatment facility, and the calculations which demonstrate the
adequacy of the remaining bond or of the alternate financial
resources.
In effect, the added language would allow, under the specified
circumstances, Phase I bond release on operations which require
chemical treatment in order to comply with applicable effluent
limitations or water quality standards.
The Director notes that the State's definition of ``chemical
treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM.
Specifically, the language of the definition that excludes passive
treatment systems from being considered ``chemical treatment'' was not
approved to the extent that such passive treatment systems would be
applied in the context of Sec. 38-2-12.2(e) to authorize bond release
for sites with discharges that require passive treatment to meet
discharge standards. For a complete explanation of the partial
disapproval of the State's definition of ``chemical treatment,'' see
Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511)
page 6517.
12. Section 38-2-14.14(e)(4) Valley fills--rock core chimney
drains. This provision is being amended by deleting the third sentence,
which concerns the control of surface water runoff, and replacing that
language with the following:
Surface water runoff from areas above and adjacent to the fill
shall be diverted into properly designed and constructed stabilized
diversion channels which have been designed using best current
technology to safely pass the peak runoff from a 1.0 year, 24-hour
precipitation event. The channel shall be designed and constructed
to ensure stability of the fill, control erosion, and minimize water
infiltration into the fill.
13. Section 38-2-14.15(m) Coal processing waste disposal. This
provision is being amended by deleting the prohibition at 14.15(m)(1)
that coal processing waste ``will not contain acid producing or toxic
forming material.'' A
[[Page 17861]]
new provision at 14.15(m)(2) is added to provide as follows:
(2) The coal processing waste will not be placed in the backfill
unless it has been demonstrated to the satisfaction of the Director
that: (A) the coal processing waste to be placed based upon
laboratory testing to be non-toxic and/or non-acid producing; or (B)
an adequate handling plan including alkaline additives has been
developed and the material after alkaline addition is non-toxic and/
or non-acid producing.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is now
seeking comments on the proposed amendments submitted by the State of
West Virginia to its permanent regulatory program. Specifically, OSM is
seeking comments on the revisions to the State's regulations that were
submitted on April 2, 1996 (Administrative Record No. WV-1024).
Comments should address whether the proposed amendments satisfy the
applicable program approval criteria of 30 CFR 732.15. If the
amendments are deemed adequate, they will become part of the West
Virginia program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the OSM Charleston Field Office
will not necessarily be considered in the final rulemaking or included
in the Administrative Record.
Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by the close of
business on May 8, 1996. If no one requests an opportunity to testify
at the public hearing by that date, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate remarks and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those scheduled. The hearing will end after all persons
scheduled to testify and persons present in the audience who wish to
testify have been heard.
Public Meeting
If only one person or group requests to testify at a hearing, a
public meeting, rather than a public hearing, may be held, and the
results of the meeting included in the Administrative Record.
Persons wishing to meet with OSM representatives to discuss the
proposed amendments may request a meeting at the OSM Charleston Field
Office listed under ADDRESSES by contacting the person listed under FOR
FURTHER INFORMATION CONTACT.
All such meetings will be open to the public and, if possible,
notices of meetings will be posted in advance at the locations listed
under ADDRESSES. A written summary of each public meeting will be made
a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12291
On July 12, 1984, the Office of Management and Budget (OMB) granted
OSM an exemption from sections 3, 4, 7 and 8 of Executive Order 12291
(Reduction of Regulatory Burden) for actions related to approval or
conditional approval of State regulatory programs, actions and program
amendments. Therefore, preparation of a regulatory impact analysis is
not necessary, and OMB regulatory review is not required.
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 the Surface Mining Control and
Reclamation Act (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 the Office of Management and Budget 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
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. Accordingly, this rule will ensure that 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 counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 12, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-9937 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-05-M
