[Federal Register Volume 64, Number 93 (Friday, May 14, 1999)]
[Rules and Regulations]
[Pages 26288-26295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12212]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-077-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; decision on amendment.
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SUMMARY: OSM is announcing that it is not approving an amendment to the
West Virginia permanent regulatory program under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The amendment would have
revised the West Virginia Surface Coal Mining and Reclamation Act, and
concerns fish and wildlife habitat and recreation lands as a postmining
land use for mountaintop removal operations with variances from
approximate original contour.
EFFECTIVE DATE: May 14, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Finding
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 April 28, 1997 (Administrative Record Number WV-
1056), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to its approved permanent regulatory program
pursuant to 30 CFR 732.17. By letter dated May 14, 1997 (Administrative
Record Number WV-1057), WVDEP submitted some revisions to the original
submittal. The amendment contained revisions to section 38-2-1 et seq.
of the West Virginia Surface Mining Reclamation Regulations [Code of
State Regulations (CSR)] and to section 22-3-1 et seq. of the West
Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). The
amendment mainly consisted of changes to implement the
[[Page 26289]]
standards of the Federal Energy Policy Act of 1992, and was intended to
revise the State program to be consistent with the counterpart Federal
provisions.
An announcement concerning the initial amendment was published in
the June 10, 1997, Federal Register (62 FR 31543-31546). A correction
notice was published on June 23, 1997 (62 FR 33785), which clarified
that the public comment period closed on July 10, 1997. No one
requested an opportunity to speak at a public hearing, so none was
held.
We published our approval, with certain exceptions, of the West
Virginia amendment in the Federal Register on February 9, 1999 (64 FR
6201-6218). In that rule, we deferred a decision on an amendment to
section 22-3-13(c)(3) of the WVSCMRA. Section 22-3-13(c)(3) was amended
to allow the approval of permits involving a variance from restoring
approximate original contour (AOC) for mountaintop removal operations
when the postmining land use includes fish and wildlife habitat and
recreation lands.
At the same time we were reviewing the amendment to section 22-3-
13(c)(3), our Charleston Field Office conducted an evaluation and
prepared a draft oversight report on portions of the West Virginia
program. The draft report was focused, in part, on postmining land uses
pertaining to mountaintop mining operations. We requested comments on
the draft report, and at the same time we reopened the public comment
period on the amendment to section 22-3-13(c)(3) because we expected
that some of the comments received concerning the oversight report
would address the proposed amendment to section 22-3-13(c)(3) (December
10, 1998, 63 FR 68221). The comment period on the draft oversight
report closed on February 12, 1999. Therefore, we deferred a decision
on section 22-3-13(c)(3) until after we could review the public
comments that were received in response to the evaluation report.
III. Director's Finding
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, is our finding concerning the proposed amendment.
The West Virginia legislature amended section 22-3-13(c)(3) of the
WVSCMRA to allow the approval of permits involving a variance from
restoring approximate original contour (AOC) for mountaintop removal
operations when the postmining land use includes ``fish and wildlife
habitat and recreation lands.''
Mountaintop removal operations seeking a variance from the
requirement to restore the affected land to AOC must comply with
section 515(c)(3) of SMCRA, which states that:
In cases where an industrial, commercial, agricultural,
residential or public facility (including recreational facilities)
use is proposed or the postmining use of the affected land, the
regulatory authority may grant a permit for a surface mining
operation of the nature described in subsection (c)(2) [concerning
mountaintop removal operations] where--
(A) After consultation with the appropriate land use planning
agencies, if any, the proposed postmining land use is deemed to
constitute an equal or better economic or public use of the affected
land, as compared with premining use;
(B) The applicant presents specific plans for the proposed
postmining land use and appropriate assurances that such use will
be--
(i) Compatible with adjacent land uses;
(ii) Obtainable according to data regarding expected need and
market;
(iii) Assured of investment in necessary public facilities;
(iv) Supported by commitments from public agencies where
appropriate;
(v) Practicable with respect to private financial capability for
completion of the proposed use;
(vi) Planned pursuant to a schedule attached to the reclamation
plan so as to integrate the mining operation and reclamation with
the postmining land use; and
(vii) Designed by a registered engineer in conformance with
professional standards established to assure the stability,
drainage, and configuration necessary for the intended use of the
site.
The Federal regulations at 30 CFR 785.14(c)(1) concerning
mountaintop removal mining mirror the SMCRA provisions at section
515(c)(3) that are quoted above. Neither of these Federal provisions
authorizes ``fish and wildlife habitat and recreation lands'' as a
postmining land use that qualifies for the AOC variance needed by
mountaintop removal operations.
The land use category of ``fish and wildlife habitat'' is defined
at 30 CFR 701.5 under the definition of ``land use'' as land
``dedicated wholly or partially to the production, protection or
management of species of fish or wildlife.'' A variance from achieving
AOC is simply not needed for the management of species of fish or
wildlife, because fish and wildlife habitats do not require flat or
rolling terrain, which is created by mountaintop removal operations, in
order to be successful. (For an analogous discussion that concludes
that silviculture is not a postmining land use authorized for
mountaintop removal operations requesting an AOC variance, see the
preamble to the March 13, 1979 Federal Register document, 44 FR 14901,
15288-15289). Therefore, the land use of ``fish and wildlife habitat''
is not authorized as a postmining land use that qualifies for an AOC
variance for mountaintop removal operations.
If we interpret the phrase ``fish and wildlife and recreation
lands'' in accordance with its plain meaning, we conclude that it
constitutes one postmining land use, with both ``fish and wildlife''
and ``recreation lands'' components. Given this construction, the
entire phrase should be disapproved, because operations proposing fish
and wildlife postmining land uses do not qualify for AOC variances
under SMCRA. However, one could conceivably construe the phrase to
create two separate, additional postmining land uses which would
qualify for the AOC variance.
OSM has reason to believe that the State intends this term to
include two separate uses. This interpretation is based on the fact
that the State further defines ``fish and wildlife habitat and
recreation lands'' at CSR 38-2-7.2.k as ``wetlands, fish and wildlife
habitat, and areas managed primarily for fish and wildlife or
recreation'' (emphasis added). Therefore, we have chosen to discuss the
``recreation lands'' use separately, in order to ascertain whether we
could reach a different decision. For the reasons discussed below,
however, we find we must still disapprove the proposed amendment in its
entirety.
The land use category of ``recreation lands'' that is proposed by
West Virginia is not specifically defined in the Federal regulations.
However, the land use category of ``recreation'' is defined at 30 CFR
701.5 under the definition of ``land use.'' ``Recreation'' land use
means ``land used for public or private leisure-time activities,
including developed recreation facilities such as parks, camps, and
amusement areas, as well as areas for less intensive uses such as
hiking, canoeing, and other undeveloped recreational uses.'' SMCRA at
section 515(c)(3) and the implementing Federal regulations at 30 CFR
785.14(c)(1) specifically authorize ``public facilities (including
recreation facilities)'' as a postmining land use which qualifies for
the variance from AOC for mountaintop removal mining. The term ``public
facilities (including recreation facilities)'' bears some resemblance
to, but is not the same as, the Federal regulatory definition of the
``recreation'' land use. To qualify for the variance, the recreation
facilities must be ``developed,'' and must also be ``public'' in
nature. Specifically, SMCRA's use of the term ``public
[[Page 26290]]
facility (including recreational facilities) use'at section 515(c)(3)
means that, unlike the definition of ``recreation'' at 30 CFR 701.5
under ``land use,'' the use is limited to applications of public use.
That is, a purely private postmining land use does not qualify under
SMCRA for a mountaintop removal AOC variance.
In addition, SMCRA at section 515(c)(3) specifically uses the term
``facilities.'' The term ``facilities'' means that various structures
that support the public or recreational use of the land are required to
be developed. For example, the postmining land use of ``public facility
(including recreational facilities)'' requires a structure or
development of some sort created by man that the public is able to use.
A ``public facility'' might include developments such as governmental
buildings, prisons, schools, reservoirs, or airports. ``Recreational
facilities'' might include developed recreational facilities such as
parks, camps, and amusement areas, as well as areas developed for uses
such as hiking, canoeing, and other less intensive recreational uses.
The designs of some of these recreational facilities, including the
less intensive recreational facilities (for example, hiking and camping
recreational facilities), could incorporate fish and wildlife habitat
as an integral component of the recreation facility. However, even the
less intensive recreation facilities would require structures or
developments to support the public uses. For example, less intensive
recreation facilities such as those for hiking and camping may require
access roads, parking lots, rest rooms, developed trails, boat ramps,
camping shelters, etc.
The term ``recreation lands'' proposed by the State may not be
inconsistent with the Federal term ``public facility (including
recreational facilities) use'' as discussed above. However, the West
Virginia program at section 22-3-13(c)(3) of the WVSCMRA currently
authorizes a postmining land use of ``public use'' as a postmining land
use for an AOC variance for mountaintop removal operations. The State's
authorization of a ``public use'' postmining land use is West
Virginia's counterpart to the ``public facility (including recreational
facilities)'' land use which qualifies for an AOC variance pursuant to
section 515(c)(3) of SMCRA. That is, the State term ``public use''
already authorizes a postmining land use of ``public facility
(including recreational facilities)'' for an AOC variance for
mountaintop removal operations. Therefore, the proposed postmining land
use of ``recreation lands'' is not necessary, as the currently approved
term ``public use'' already authorizes ``public facility (including
recreational facilities).'' When OSM initially approved West Virginia's
term ``public use'' (46 FR 5915, January 21, 1981) it did so without
discussion. If OSM had intended its approval of the term ``public use''
to mean something other than the Federal term ``public facility
(including recreation facilities)'' it would have discussed its
rationale in the preamble. Since such a discussion is lacking, we
conclude that when it approved West Virginia's term ``public use,'' OSM
interpreted that term to be equivalent to the Federal term ``public
facility (including recreation facilities).'' However, we also
recognize that the difference in terms has led to confusion concerning
the meaning of the State's term ``public use.'' Therefore, we are
requiring that the term ``public use'' at section 22-3-13(c)(3) be
amended to include the term ``facility'' and to further clarify that
the State term will be interpreted the same as ``public facility
(including recreation facilities) use'' at section 515(c)(3).
Based on the discussion above, we are not approving the proposed
language ``or fish and wildlife habitat and recreation lands.'' The
addition of the term ``fish and wildlife habitat'' would render the
West Virginia program less stringent than SMCRA, which does not
authorize ``fish and wildlife habitat'' as a postmining land use that
qualifies for an AOC variance for mountaintop removal operations. The
term ``recreation lands'' need not be added to the West Virginia
program, because the currently approved ``public use'' variance
corresponds to the Federal authorization of ``public facility
(including recreational facilities) use.'' Moreover, some of the public
facilities or recreational facilities which could be approved under
section 22-3-13(c)(3) as ``public uses'' could incorporate ``fish and
wildlife habitat'' as an integral component of the design of the public
or recreation facility. Therefore, OSM is requiring that section 22-3-
13(c)(3) be amended to remove the phrase ``or fish and wildlife habitat
and recreation lands.'' Finally, as stated above, we are requiring that
the term ``public use'' at section 22-3-13(c)(3) be amended to include
the term ``facility'' and further clarify that the term will be
interpreted the same as ``public facility (including recreation
facilities) use'' at SMCRA section 515(c)(3).
IV. Summary and Disposition of Comments
Federal Agency Comments
According to 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. Except for the U.S.
Environmental Protection Agency as discussed below, no other Federal
agencies commented on the amendment relating to ``fish and wildlife
habitat and recreation lands.''
Public Comments
We solicited public comments on several different occasions. The
following is a summary and disposition of the public comments received
on the amendment.
1. General Comments Against Approval
Comments: Several commenters made general statements against
approval of the proposed amendment. One commenter suggested that we
defer our decision concerning the proposed postmining land use until
after the Environmental Protection Agency (EPA) completes its
environmental impact statement on mountaintop removal operations. The
commenter also urged OSM to not allow it as an approved postmining land
use during the interim period.
One commenter said that fish and wildlife habitat has several
faults. On the plus side, however, allowing the creation of wetlands on
mined areas was a step in a positive direction. But, the commenter
asserted, fish and wildlife habitat has been used which included non
native, invasive plants.
One commenter stated that fish and wildlife postmining land use
should not be approved, because the language and legislative history of
SMCRA demonstrate that Congress intended to restrict permissible
postmining land uses to socially beneficial and developed uses, not
passive and undeveloped uses such as ``fish and wildlife habitat and
recreation lands.'' The commenter asserted that the ``fish and wildlife
habitat and recreation lands'' use is not socially beneficial; it does
not require any development; it does not require any public facilities;
and it is not a use which otherwise might not be available.
Further, one of these commenters did not support West Virginia's
contention, via the amendment, that ``fish and wildlife habitat and
recreation lands'' is an appropriate postmining land use.
Another commenter stated that allowance of ill-defined land uses
such as ``fish and wildlife habitat,'' rather
[[Page 26291]]
than conformance to the specific requirements of the law, results in
improper off-site disposal as a matter of course, rather than as an
exception to the rule of on-bench retention.
Response: In response to these comments, and for the reasons
discussed in the Finding above, we have not approved this amendment.
2. Fish and Wildlife Habitat
Comments: A commenter supported the amendment and stated that fish
and wildlife habitat clearly should qualify as a recreational use and
consequently, a public use. From an environmental standpoint, the
commenter stated, you couldn't have a better postmining land use for
the environment. Though not one of the four listed postmining land uses
in SMCRA, the commenter noted, there clearly isn't any prohibition of
this as a valid postmining land use, nor are there any environmentally
sound arguments for precluding it as a postmining land use. The
commenter further stated that the State of Kentucky has had a
postmining land use of ``fish and wildlife'' as part of its regulatory
program since 1991.
Response: In response, we disagree with the statement that there
clearly is not any prohibition of ``fish and wildlife habitat'' as a
valid postmining land use. The fact that ``fish and wildlife habitat''
is not listed at SMCRA section 515(c)(3) as an allowable postmining
land use for mountaintop-removal operations is a clear prohibition of
``fish and wildlife habitat'' as a postmining land use under SMCRA.
While we have no doubt about the value of ``fish and wildlife habitat''
in the natural environment, and as a postmining land use in a mining
situation where the site is to be restored to approximate original
contour, ``fish and wildlife habitat'' is not an approvable postmining
land use for mountaintop removal operations with variances from AOC
under SMCRA section 515(c)(3). Finally, Kentucky has not had an
approved postmining land use of ``fish and wildlife habitat'' as part
of its regulatory program since 1991. Rather, the Kentucky program was
authorizing ``fish and wildlife habitat'' as a postmining land use for
mountaintop-removal operations with AOC variances under an internal
memorandum dated May 29, 1991, that was never approved by OSM. The
State no longer implements that memorandum.
3. Public Use Versus Public Facility Use
Comments: A few commenters noted that the West Virginia program
authorizes ``public use'' as a valid postmining land use for an AOC
variance for mountaintop removal operations, whereas SMCRA authorizes
``public facility use.'' One commenter said that the West Virginia
program must be brought into conformity with SMCRA. Another commenter
said that ``any public use'' is too broad a definition and provides a
loophole for mining companies. Still another commenter stated that the
rational response would be to clarify this matter through a policy
statement, with a provision to allow maximum input from stakeholders.
A commenter asserted that while the word ``facility'' may mean that
some type of structure or appurtenance must accompany the public use,
this is not the only permissible interpretation of the term ``public
facility.'' For example, the commenter asserted, land that is reclaimed
to support the propagation and preservation of wildlife, or leisure
activities such as hiking, hunting or camping, are public facilities.
Similarly, dedicated open space used as a park is a public facility
even in the absence of buildings or other structures. The commenter
also stated that the ``public'character of the land use should not be
interpreted to be unduly narrow. The commenter stated that OSM has
previously addressed the question of the public nature of a land use
for purposes of SMCRA's land use requirements. The commenter stated
that OSM declined to adopt a regulatory definition of the term ``public
use'' because public use ``overlaps more than one of the existing land
use categories'' 48 FR 39893, September 1, 1983. In that notice, OSM
stated that a use is public ``if it involves benefit, utility, or
advantage to the public generally or any part of the public, as
distinguished from benefitting an individual or a few specific
individuals.'' The commenter stated that land that is reclaimed to
support the propagation and preservation of wildlife is a public
facility. Finally, the commenter stated that whether or not these uses
would require buildings or other appurtenances is a question that would
be evaluated in the context of the specific plans for the proposed
postmining use.
Response: In response, the one commenter is saying that all land
uses have a public utility and that, for example, land that is
reclaimed to support the propagation and preservation of wildlife is a
public facility. We believe that such an interpretation only serves to
render meaningless the term ``public facility (including recreational
facilities) use.'' Although the commenter believes that the public
character of the land use should not be interpreted too narrowly, we
believe that to be meaningful, the term ``public facility (including
recreational facilities) use'' must not be interpreted too broadly.
Were it otherwise, instead of stating ``public facility (including
recreational facilities) use'' SMCRA could merely state ``public use,''
or even ``fish and wildlife habitat use.'' Instead, SMCRA excludes
``fish and wildlife habitat'' from the list of approvable postmining
land uses at section 515(c)(3), and it specifically provides for
``public facility (including recreational facilities) use.''
SMCRA uses the term ``facility'' rather than the more generic term
``public use'' in the approvable postmining land use of ``public
facility (including recreational facilities) use.'' We interpret the
term ``public facility (including recreational facilities) use'' to
require some sort of structure or man-made development that actually
supports or facilitates the public use. Such facilities could include
community centers, buildings and runways as at an airport,
amphitheatres or parking lots, rest rooms, developed hiking trails,
boat ramps, camping shelters, or shooting ranges, etc. at less
intensive public recreational facilities.
Finally, we agree that the specific plans for each proposed
postmining land use must be assessed on a case-by-case basis. However,
as stated above, we believe that SMCRA requires that the various
structures or developments discussed above be required for a postmining
land use of ``public facility (including recreational facilities).''
Comment: Another commenter contends that the term ``public use'' in
the West Virginia program was approved by OSM and is not limited to
``public recreation facilities.'' The commenter also asserted that
because the State's regulations require that proposed postmining land
uses of fish and wildlife habitat and recreation lands include a
planting plan prepared or approved by a state mining biologist, whose
job it is to encourage the propagation of ``desirable'' species, these
plans necessarily confer public benefit.
Response: In response, we are aware of the confusion that exists
concerning the interpretation of West Virginia's term ``public use''
and the term ``public facility (including recreational facilities)'' in
SMCRA at section 515(c)(3). As a consequence, and as discussed in the
Finding above, we are requiring that the State further amend its
program to clarify that its term ``public use'' means the same as the
term ``public facility (including recreational facilities)'' at SMCRA
section 515(c)(3). To be no less stringent
[[Page 26292]]
than SMCRA at section 515(c)(3), the West Virginia term ``public use''
at section 22-3-13(c)(3) of WVSCMRA must be equivalent to the Federal
term ``public facility (including recreational facilities) use.''
4. Fish and Wildlife Habitat and Public Use
Comments: One commenter supported the amendment and said that fish
and wildlife habitat is a recreational use and consequently a public
use. The commenter stated that ``public use'' as a postmining land use
has been part of the approved West Virginia program since 1981. If
public access is available to the site, the commenter asserted, then it
would appear that the conditions of this land use category have been
met.
Another commenter agrees and stated that OSM issued a Federal
permit in West Virginia effective August 23, 1993, that granted an AOC
variance for ``fish and wildlife habitat.'' According to the commenter,
the variance was apparently approved based on the rationale that the
postmining fish and wildlife habitat development constituted a public
use.
Response: In response, we disagree with the commenters that assert
that ``fish and wildlife habitat'' is a recreational use and
consequently a public use. The ``fish and wildlife habitat'' postmining
land use is defined at 30 CFR 701.5 under the definition of ``land
use.'' It is defined as land dedicated wholly or partially, to the
production, protection, or management of species of fish or wildlife.
Sites that are not open to the public at all can meet this definition.
Therefore, ``fish and wildlife habitat'' by itself cannot be considered
a public use.
The second commenter is referring to Permit Number OC-1
(subsequently converted to OC-2). OSM approved a postmining land use of
``public use'' for this permit. The permit was for a 20-acre surface
mining operation at R.D. Bailey Lake in Mingo County. R.D. Bailey Lake
is managed by the U.S. Army Corps of Engineers (COE). The COE specified
that the reclaimed surface, especially the side facing the lake, dam
and visitor center, should have some minor degree of slope to make it
appear natural in relation to the general topography of the ridge
areas. This was specified so that as viewed from the nearby public use
areas of the lake the reclaimed area would be aesthetically pleasing.
The COE agreed that at least three acres of the reclaimed site would be
for water fowl habitat, which would consist of two acres of flat
surface and a one-acre depression ranging from one to two feet in
depth. All surface areas accessible by mowing equipment had to be
graded and free of rock, boulders and other debris to facilitate mowing
and other wildlife management activities. OSM agrees that fish and
wildlife habitat was a component of the postmining land use. However,
and more importantly, because the site was accessible to the public,
managed by a governmental agency, and developed for public use, OSM was
able to approve the permit with an AOC variance in accordance with the
approved State program.
Comment: Another commenter disagrees with the proposed amendment,
and stated that the State has not demonstrated that a proposed
postmining land use of ``fish and wildlife habitat and recreation
lands'' is consistent with SMCRA. The commenter asserted that the
State's justification of the proposed amendment, which states that
``[b]ecause of the feral nature of wildlife the proposed program
amendment conforms with CFR 824.11(a)(3) by providing enhanced
recreational benefits in the form of additional wildlife for public
hunting and observation,'' has no meaning. The commenter said that a
public use is one that is available to the public permanently. The
commenter stated that Congress did not intend to allow passive
``recreational areas'' which are maintained and controlled by private
companies, instead of public authorities. Hence, the public would have
to own the land for it to qualify as a public use. The commenter also
stated that a public use must allow unimpeded public access, must be a
higher and better use than the pre-mining use, and the permit
application must demonstrate that there is a need for the use and that
financing is available for public projects such as golf courses, public
parks, or swimming pools with public facilities. The public facilities,
the commenter asserted, would also have to be owned by the public;
otherwise the public nature of the enterprise could be revoked at any
time after mining is complete.
Response: In response, we agree with the commenter that ``fish and
wildlife habitat'' is not, by itself, a public use. However, we
disagree with the commenter's assertion that to qualify as a public
facility the facility must be owned by the public. SMCRA section
515(c)(3) does not require public ownership to qualify as a ``public
facility (including recreational facilities)'' postmining land use.
Neither does SMCRA section 515(c)(3) specify that an approved
postmining land use be continued permanently, or that the use be higher
and better than the premining use. Rather, section 515(c)(3)(A)
requires that the proposed postmining land use be an equal or better
economic or public use, as compared with the premining use. SMCRA
section 515(c)(3) does, however, require that the reclaimed site be
capable of supporting the postmining land use in accordance with the
requirements at subsection 515(c)(3). SMCRA also specifies minimum
requirements such as consultation with land use planning agencies, and
specific plans and assurances that the proposed postmining land use
will be compatible with adjacent land uses; obtainable according to
data regarding expected need and market; assured of investment in
necessary public facilities; supported by commitments from public
agencies where appropriate; practicable with respect to private
financial capability for completion of the proposed use; and planned
pursuant to a schedule attached to the reclamation plan so as to
integrate the mining operation and reclamation with the postmining land
use.
Comment: One commenter noted that SMCRA at section 515(c)(3) does
not specifically authorize ``fish and wildlife habitat'' as a
postmining land use for an AOC variance for mountaintop-removal
operations. However, the commenter asserted, this is no impediment to
those land uses falling within one of the general categories of land
uses listed in the statute. This view is supported by another commenter
who said that there is nothing which precludes a ``fish and wildlife
habitat and recreation'' postmining land use from serving as the basis
of an AOC variance ``so long as it can be viewed as a subset of one of
the list of land uses set out in W.Va. Code Sec. 22-3-13(c)(3).''
Moreover, the commenter said, the list of uses set forth in the
Federal rules is not exhaustive or exclusive, but simply a ``minimum
list that would meet the requirements of the Act.'' 44 FR at 14933.
Response: In response, and as discussed above in the Finding, the
design of a ``public facility (including recreational facilities) use''
could include areas that are designed as fish and wildlife habitat.
This is not to say that ``fish and wildlife habitat'' is the primary
postmining land use. Rather, fish and wildlife habitat may be a
component of the design of a ``public facility (including recreational
facilities) use.'' And, it is the ``public facility (including
recreational facilities) use'' that must be the focus of the
applicant's demonstration, and the regulatory authority's determination
that the proposed postmining land use meets the requirements for an AOC
variance.
[[Page 26293]]
Comment: The commenter further stated that the specific land uses
of ``fish and wildlife habitat and recreation lands'' comfortably fit
within the general land use category of public facility/public use as
set forth in both section 515(c)(3) and 515(e)(2) of SMCRA.
Response: In response, we disagree with this comment. As discussed
above in the Finding, the proposed postmining land use of ``fish and
wildlife habitat and recreation lands'' is not approvable under SMCRA
section 515(c)(3). ``Fish and wildlife habitat'' is not a listed
postmining land use at section 515(c)(3) of SMCRA and, therefore,
cannot be approved. In addition, the State's proposed term ``recreation
lands'' is not approved because, to the extent it refers to public
recreational facilities, it is redundant with the term ``public use''
that is already part of the approved West Virginia program. To the
extent that it creates a more expansive category, which would include
undeveloped recreational areas or purely private developed recreational
facilities, it is inconsistent with section 515(c)(3) of SMCRA. As
discussed in the Finding, we have concluded that when OSM approved the
term ``public use'' in the State program, it did so with the
interpretation that the term ``public use'' is no less stringent than
the Federal standard, which allows only a ``public facility (including
recreational facilities) use.''
Comment: The commenter also asserted that there are public benefits
from fish and wildlife habitat regardless of whether general access is
provided.
Response: In response, and as discussed in the Finding above,
``fish and wildlife habitat'' is not an approvable postmining land use
for mountaintop-removal operations with AOC variances. We believe that
the approvable postmining land use of ``public facility (including
recreation facility) use'' clearly contains a ``public'' component, and
a requirement that the public's use of the land be facilitated. We
believe that the term ``facility'' requires the inclusion of a
structure or other man-made developments such as parking lots, rest
rooms, or shelters that would facilitate the use of the land by the
public. Some public facilities, such as water treatment plants,
transmission lines, and solid waste disposal facilities that directly
benefit the public, may not allow public access. However, recreational
areas must be available for public access in order for the public to be
able to use and benefit from them, and that access should be
facilitated by the inclusion of necessary structures or developments.
5. Other Comments
Comment: One commenter suggested that fish and wildlife habitat
should be accepted as valid. The commenter said this would be
especially beneficial if that use could be used in conjunction with a
postmining use of reservation for future economic development. In such
a manner, the commenter said, the land could be reclaimed for wildlife
habitat and used as such indefinitely or until such time as a need
develops for some other qualified project.
Response: In response, and as noted in the Finding above, fish and
wildlife habitat cannot be approved as a postmining land use under
section 515(c)(3) of SMCRA. While SMCRA does not specify exactly when a
postmining must actually be implemented, it does specify that the land
must be capable of supporting the postmining land use, and also
specifies the minimum criteria which must be met to qualify for a
variance. SMCRA section 515(c)(3)(vi) provides that the proposed use
must be planned pursuant to a schedule attached to the reclamation plan
so as to integrate the mining operation and reclamation with the
postmining land use. In addition, the Federal regulations at 30 CFR
785.14(c)(1)(ii), governing AOC variances for mountaintop-removal
operations, specify that compliance with the Federal regulations at 30
CFR 816/817.133(a) through (c), concerning postmining land use, is
required. 30 CFR 816/817.133(c)(3)(iii) provides that the proposed
postmining land use will not involve unreasonable delay in
implementation.
Comment: A commenter stated that SMCRA does not require the land to
be actually put to the use proposed, but only that it be capable of
supporting the postmining land use proposed. As the Supreme Court held,
``[t]he Act imposes no restrictions on post reclamation use of mined
lands.'' Hodel v. Indiana, 452 U.S. 314, 330 n. 18 (1981).
Response: In response, we note that SMCRA at section 515(c)(2)
specifies that the applicant for an AOC variance for mountaintop
removal operations must create a postmining land that is ``capable of
supporting postmining uses in accordance with the requirements of this
subsection.'' However, SMCRA at section 515(c)(3) also provides that an
applicant must present specific plans and appropriate assurances that
the proposed postmining land use will be compatible with adjacent land
uses; obtainable according to data regarding expected need and market;
assured of investment in necessary public facilities; supported by
commitments from public agencies where appropriate; practicable with
respect to private financial capability for completion of the proposed
use; and planned pursuant to a schedule attached to the reclamation
plan so as to integrate the mining operation and reclamation with the
postmining land use. These specific plans and assurances should be
sufficiently detailed to allow the regulatory authority to determine if
there is a reasonable likelihood for achievement of the proposed
postmining land use, and the use will not be impractical or
unreasonable, or involve unreasonable delay in implementation.
Comment: A commenter also stated, in comments directed against
approval of the amendment, that if the proposed amendment is approved,
regulators must approve postmining land use of any mountaintop removal
permit application that proposes to flatten mountains and fill streams
as long as that application proposes a ``fish and wildlife habitat and
recreation lands'' variance.
Response: In response, and as explained in the Finding above, we
are not approving the proposed amendment. In addition, we disagree that
the regulatory authority must approve a variance from the requirements
of AOC just because a permittee proposes one of the approvable
postmining land uses listed at section 515(c)(3). SMCRA at section
515(c)(3) specifies that a regulatory authority ``may'' approve such a
request if it finds that the permittee also demonstrates compliance
with all the other criteria specified at section 515(c)(3). If all of
the requirements of section 515(c)(3) of SMCRA are not met, the
regulatory authority must reject the variance request.
Environmental Protection Agency (EPA)
According to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain
the written concurrence of the EPA with respect to those provisions of
the proposed 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
requested EPA concurrence on June 6, 1997 (Administrative Record Number
WV-1059) and again on March 19, 1999 (Administrative Record Number WV-
1118). In accordance with 30 CFR 732.17(h)(11)(i), we also solicited
comments from the EPA on the proposed amendment on June 5, 1997.
(Administrative Record Number WV-1060)
[[Page 26294]]
EPA responded to our June 5 and 6, 1997, requests for comments and
concurrence by letter dated October 23, 1998 (Administrative Record
Number WV-1108). EPA expressed concerns about the proposed provision at
section 22-3-13(c)(3) of the WVSCMRA that would allow an exemption for
mountaintop removal operations from restoring mined land to its
approximate original contour (AOC) if the post-mining land use is fish
and wildlife habitat and recreation lands. EPA stated that the proposed
revision would allow excess overburden to be disposed in valley fills
rather than on top of the mined area to achieve AOC. A use designation
as fish and wildlife habitat and recreation lands would not appear to
be necessary if the goal was just to provide wildlife habitat and
recreation land, rather than avoid the expense of placing overburden
back on top of mined areas. It is very likely, EPA stated, that
wildlife habitat areas would occur naturally on post-mining lands,
including areas restored to the approximate original contour, as a
result of appropriate reclamation without any special use designation.
In addition, it appears that the proposed designation as wildlife
habitat and recreation lands is not intended for lands to be used by
the public since an exemption for ``public use'' is already in the
State statute. EPA said that its concern is that disposal of excess
overburden in valley fills may harm aquatic life in headwater streams
and possibly downstream reaches.
EPA noted OSM's intention to defer action on proposed revisions to
section 22-3-13(c)(3) of the WVSCMRA regarding an exemption to
approximate original contour for mountaintop removal operations until a
later date, and that the comment period would be reopened on this
provision. With this understanding, the EPA concurred with the other
proposed WVDEP revisions under the condition that the EPA be given an
opportunity to concur or not concur with the proposed amendment to
section 22-3-13(c)(3) of the WVSCMRA.
By letter dated April 2, 1999 (Administrative Record Number WV-
1120), EPA responded to OSM's request for concurrence dated March 19,
1999 (Administrative Record Number WV-1118), and stated that it does
not concur with the proposed revision at section 22-3-13(c)(3). EPA
stated that it is withholding concurrence because the amendment would
result in degradation of stream quality and aquatic life and violate
the Anti-Degradation Policy of the West Virginia Water Quality
Standards (Section 46-1-4 of the Legislative Rules of the Environmental
Quality Board). According to EPA, compliance with Water Quality
Standards is a requirement of the Clean Water Act.
In its letter, the EPA stated that the proposed revision for
exempting the restoration of mined lands to approximate original
contour would result in an increase of excess spoil being placed in
valley fills on stream beds rather than on top of mined areas. The
reasons for allowing this exemption are not justified, since the lower
and more level areas resulting from the exemption are not necessary to
sustain ``fish and wildlife habitat and recreation lands.'' Wildlife
habitat areas would occur naturally on postmining lands, including
areas restored to the approximate original contour, as a result of
appropriate reclamation without any special use designation. Increased
disposal of excess spoil in valley fills resulting from the proposed
exemption will unnecessarily harm aquatic life in headwater streams and
possibly downstream reaches, the EPA said.
In response, and in accordance with EPA's non-concurrence stated
above, we have not approved the proposed amendment.
V. Director's Decision
Based on the finding above, we are not approving the proposed
language ``or fish and wildlife habitat and recreation lands'' at
section 22-3-13(c)(3), as submitted on April 28, 1997. In addition, we
are requiring that section 22-3-13(c)(3) of the West Virginia program
be further amended to remove the phrase ``or fish and wildlife habitat
and recreation lands.'' We are also requiring that the term ``public
use'' at section 22-3-13(c)(3) be amended to include the term
``facility'' and to further clarify that the State term will be
interpreted the same as ``public facility (including recreation
facilities) use'' at SMCRA section 515(c)(3).
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 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.
[[Page 26295]]
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 4, 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.
* * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
April 28, 1997........................... May 14, 1999................ W.Va. Code 22-3 Section 13(c)(3) [not approved].
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Section 948.16 is amended by adding new paragraph (iiii) to read
as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(iiii) By July 13, 1999, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to:
(1) Amend section 22-3-13(c)(3) of the West Virginia program to
remove the phrase ``or fish and wildlife habitat and recreation
lands''; and
(2) Amend ``public use'' at section 22-3-13(c)(3) to include the
term ``facility'' and to further clarify that the term will be
interpreted the same as ``public facility (including recreation
facilities) use'' at SMCRA section 515(c)(3).
[FR Doc. 99-12212 Filed 5-13-99; 8:45 am]
BILLING CODE 4310-05-P
