95-12362. West Virginia Program Amendment

[Federal Register Volume 60, Number 97 (Friday, May 19, 1995)]
[Proposed Rules]
[Pages 26855-26857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12362]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948


West Virginia Program Amendment

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Notice of availability and opportunity for public comment.

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SUMMARY: OSM is making available for public review and comment its 
draft decision document on a proposed amendment to the West Virginia 
permanent regulatory program (hereinafter referred to as the West 
Virginia program). The amendment concerns revisions to State law and 
regulations governing the Special Reclamation Fund and bonding 
requirements for surface coal mining operations. OSM has evaluated the 
proposed changes and made tentative findings on whether they can be 
approved as part of the West Virginia program. Where necessary, OSM 
proposed required amendments to bring the program into compliance with 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM is 
inviting public comment on the proposed amendment and the tentative 
findings contained in the draft decision document. A public meeting is 
also scheduled.

DATES: Written comments must be received on or before 4 p.m., E.D.T. on 
June 5, 1995. A public meeting will be held at 1 p.m., E.D.T. on May 
30, 1995, at the Holiday Inn, Heart-Of-Town, Washington and Broad 
Streets, Charleston, West Virginia.

ADDRESSES: Written comments should be mailed or hand delivered to James 
C. Blankenship, Jr., Director, Charleston Field Office at the address 
listed below.
    Copies of the proposed amendment and draft decision document, the 
West Virginia program, and the administrative record on the West 
Virginia program are available for public review and copying at the 
address below during normal business hours, Monday through Friday, 
excluding holidays. Each requester may receive one free copy of the 
proposed amendment and draft decision document by contacting OSM's 
Charleston Field Office.

James C. Blankenship, Jr., Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street East, 
Charleston, West Virginia 25301, Telephone: [phone]
West Virginia Division of Environmental Protection, 10 McJunkin Road, 
Nitro, West Virginia 25143, Telephone: [phone].

    In addition, copies of the proposed amendment and draft decision 
document 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: [phone]
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: [phone]
Office of Surface Mining Reclamation and Enforcement, Logan Area 
Office, 313 Hudgins Street, 2nd Floor, P.O. Box 506, Logan, West 
Virginia 25601, Telephone: [phone].

FOR FURTHER INFORMATION CONTACT:
Mr. James C. Blankenship, Jr., Director, Charleston Field Office; 
Telephone: [phone].

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

    SMCRA was passed in 1977 to address the growing environmental and 
safety problems associated with coal mining. Under SMCRA, OSM works 
with States to ensure that coal mines are operated in a manner that 
protects citizens and the environment during mining, that the land is 
restored to beneficial use following mining, and that the effects of 
past mining at abandoned coal mines are mitigated.
    Many coal-producing States, including West Virginia, have sought 
and obtained approval from the Secretary of the Interior to carry out 
SMCRA's requirements within their borders. In becoming the primary 
enforcers of SMCRA, these ``primacy'' states accept a shared 
responsibility with OSM to achieve the goals of the Act. Such States 
join with OSM in a shared commitment to the protection of citizens--our 
primary customers--from abusive mining practices, to be responsive to 
their concerns, and to allow them full access to information needed to 
evaluate the effects of mining on their health, safety, general 
welfare, and property. This commitment also recognizes the need for 
clear, fair, and consistently applied policies that are not 
unnecessarily burdensome to the coal industry--producers of an 
important source of our Nation's energy.
    Under SMCRA, OSM sets minimum regulatory and reclamation standards. 
Each primacy State ensures that coal mines are operated and reclaimed 
in accordance with the standards in its approved State program. The 
States serve as the front-line authorities for implementation and 
enforcement of SMCRA, while OSM maintains a State performance 
evaluation role and provides funding and technical assistance to States 
to carry out their approved programs. OSM also is responsible for 
taking direct enforcement action in a primacy State, if needed, to 
protect the public in cases of imminent harm or, following appropriate 
notice to the State, when a State acts in an arbitrary and capricious 
manner in not taking needed enforcement actions required under tits 
approved regulatory program.
    Currently there are 24 primacy states that administer and enforce 
regulatory programs under SMCRA. These states may amend their programs, 
with OSM approval, at any time so long as they remain no less effective 
than Federal regulatory requirements. In addition, whenever SMCRA or 
implementing Federal regulations are revised, OSM is 
[[Page 26856]] required to notify the States of the changes so that 
they can revise their programs accordingly to remain no less effective 
than the Federal requirements.
    A major goal of SMCRA is to ensure adequate reclamation of all 
areas disturbed by surface coal mining operations. To accomplish this, 
mining is allowed to proceed only after an operator has filed a 
performance bond of sufficient amount to ensure completion or 
reclamation. In the event of bond forfeiture, the regulator authority 
uses the performance bond money to contract for the necessary 
reclamation work. SMCRA also allows for the adoption of an alternative 
bonding system (ABS) so long as it achieves the purposes and objectives 
of the conventional bonding system described above. Under an ABS, 
rather than posting full-cost reclamation bonds, an operator is allowed 
to participate in a bond pool which is to provide sufficient revenue at 
any time to complete reclamation in the event of bond forfeiture.
    As part of their approved programs, primacy States have adopted 
procedures consistent with Federal bonding requirements. The Secretary 
conditionally approved West Virginia's ABS on January 21, 1981 (46 FR 
5326). After receipt of a required actuarial study, the Secretary fully 
approved the State's ABS on March 1, 1983 (48 FR 8448), by finding it 
consistent with section 509(c) of SMCRA.
    Background information on the West Virginia program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval can be found in the January 21, 1981, Federal Register (46 
FR 5915). Subsequent actions concerning the conditions of approval and 
program amendments can be found at 30 CFR 948.10, 948.12, 948.13, 
948.15, and 948.16.

II. Discussion of the Proposed Amendment

    On October 1, 1991, OSM notified West Virginia that it needed to 
amend its ABS to be in compliance with sections 509(c) , 519(b) and 
519(c) of SMCRA (Administrative Record No. 878). OSM's annual reviews 
of the West Virginia program had found that the State's ABS no longer 
met the requirements for such systems because, as of June 30, 1990, 
liabilities exceeded assets by $6.2 million dollars. OSM also informed 
the State that its ABS must provide for the abatement or treatment of 
polluted water flowing from permanent program bond forfeiture sites 
unless its approved program included some other form of financial 
guarantee to provide for water treatment. The proposed amendment now 
under consideration was submitted to OSM in response to this letter and 
concurrent State initiatives to address bonding and water quality 
problems.
    In a series of three letters dated June 28, 1993, and July 30, 1993 
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West 
Virginia Division of Environmental Protection (WVDEP) submitted an 
amendment to its approved permanent regulatory program that included 
numerous revisions to the West Virginia Surface Coal Mining and 
Reclamation Act (WVSCMRA Sec. 22A-3-1 et seq.) and the West Virginia 
Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et seq.). OSM 
grouped the proposed revisions that concern bonding into one amendment 
which is the subject of this notice. The proposed amendment will:
     Allow for the selection and prioritization of bond 
forfeiture sites to be reclaimed;
     Limit administrative expenditures from the Special 
Reclamation Fund to an amount not to exceed 10 percent of the total 
annual assets in the Fund;
     Raise the special reclamation tax from one cent to three 
cents per ton and provide for the collection of the tax whenever 
liabilities exceed assets;
     Limit the amount of money that can be used for water 
treatment to 25 percent of the annual amount of the fees collected;
     Require site-specific bonds that reflect the potential 
cost of reclamation but do not exceed $5,000 per acre;
     Require penal bonds instead of performance bonds; and
     Require bond forfeiture sites to be reclaimed in 
accordance with the approved reclamation plan or modifications thereof.
    By letter dated April 1, 1994, OSM informed the WVDEP of probable 
deficiencies in the proposed amendment (Administrative Record No. WV-
916). The WVDEP and OSM met on April 25, May 5, June 20, and August 5, 
1994, to resolve these issues. During this time, WVDEP and OSM 
exchanged technical studies, policy statements, legal opinions, and 
explanations to clarify positions and where possible reach agreement. 
On August 30, 1994, OSM sent WVDEP a letter stating the tentative 
resolutions of the issues listed in the April 1, 1994, letter. These 
documents and a summary of the meetings are in Administrative Record 
Nos. WV-916 through 933.
    OSM announced receipt of the proposed amendment in the August 12, 
1993, Federal Register (58 FR 42903) and invited public comment on its 
adequacy. Following this initial comment period, WVDEP revised the 
amendment on March 12, 1994, and September 1, 1994 (Administrative 
Record Nos. WV-933 and WV-937). OSM reopened the comment period on 
August 31, 1994, and September 29, 1994, and held public meetings in 
Charleston, West Virginia on September 7, 1993, and October 27, 1994 
(Administrative Record No. WV-958).

III. Public Comment Procedures

    OSM is reopening the comment period on the West Virginia program 
amendment to provide the public an opportunity to review OSM's draft 
decision document and to comment prior to making a final decision. OSM 
is seeking comments on whether the proposed amendment satisfies the 
applicable program criteria of 30 CFR 732.15. Additional public comment 
is requested on how OSM and WVDEP should address the following:
    1. State records show that as of June 30, 1994, there was a backlog 
of 243 bond forfeiture sites totalling 10,996 acres that had not been 
completely reclaimed. Total liabilities of the Special Reclamation Fund 
exceeded total assets by 22.2 million dollars. This estimate does not 
include the cost of treating water at bond forfeiture sites. How can 
this backlog in reclamation work be completed in a timely manner and 
how should the Special Reclamation Fund be made financially sound?
    2. The WVDEP identified 89 bond forfeiture sites that were 
producing approximately 10 percent of the acid mine drainage in the 
State. WVDEP estimated that it would cost two to four million dollars 
annually to treat this water to meet Federal and State effluent 
limitations and water quality standards. What is the best approach to 
dealing with acid mine drainage from these and future bond forfeiture 
sites?

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 Meeting

    Persons requesting to speak at the meeting should contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. Submission of 
written statements in advance of the meeting [[Page 26857]] will allow 
OSM to study the remarks and ask questions of the speakers.
    The meeting will continue on the specified date until all persons 
scheduled to speak have been heard. Persons in the audience who have 
not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The meeting will end after all 
persons who wish to speak have spoken.
    Any disabled individual who has need for a special accommodation to 
attend the public meeting should contact the individual listed under 
FOR FURTHER INFORMATION CONTACT.
IV. 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 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 programs and program amendments since 
each such program is drafted and promulgated by a specific State, not 
by OSM. Under sections 502 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.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 12, 1995.
Richard J. Seibel,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-12362 Filed 5-18-95; 8:45 am]
BILLING CODE 4310-05-M