[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Proposed Rules]
[Pages 31543-31546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15008]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-077-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 receipt of a proposed amendment 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 amendment revises both the West Virginia
Surface Mining Reclamation Regulations and the West Virginia Surface
Mining Code. The amendment mainly concerns changes to implement the
standards of the Federal Energy Policy Act of 1992. The amendment is
intended to revise the State program to be consistent with the
counterpart Federal provisions.
DATES: Written comments must be received on or before 4:00 p.m. on June
25, 1997.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Mr. Roger W. Calhoun, 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. Roger W. Calhoun, 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 amendment 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. Roger W. Calhoun, 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 Amemdment
By letter dated April 28, 1997 (Administrative Record Number WV-
1056), the West Virginia Division of
[[Page 31544]]
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 contains
revisions to the West Virginia Surface Mining Reclamation Regulations
(CSR Section 38-2 et seq.), and to Sec. 22-3 of the West Virginia
Surface Mining Code. The amendment mainly concerns changes to implement
the standards of the Federal Energy Policy Act of 1992. The amendment
is intended to revise the State program to be consistent with the
counterpart Federal provisions.
The proposed amendments are identified below. Minor wording changes
and other non-substantive changes are not identified.
1. Section 22-3 of the West Virginia Code
Sec. 22-3-3(u) The definition of ``surface mine'' is amended by
adding three examples which are not encompassed by the definition of
``surface mine.'' The three exceptions are: (1) Coal extraction
pursuant to a government financed reclamation contract; (2) coal
extraction authorized as an incidental part of development of land for
commercial, residential, industrial, or civic use; and the reclamation
of an abandoned or forfeited mine by a no cost reclamation contract.
Sec. 22-3-3(x) is added to define ``Unanticipated event or
condition.''
Sec. 22-3-3(y) is added to define ``Lands eligible for remining.''
Sec. 22-3-3(z) is added to define ``Replacement of water supply.''
Sec. 22-3-13(b)(20) concerning revegetation performance standards
is amended by adding that on lands eligible for remining, the
revegetation responsibility period will be not less than two growing
seasons.
Sec. 22-3-13(b)(22) is amended by deleting the words ``shall'' in
the last sentence and replacing that word with ``may.''
Sec. 22-3-13(c)(3) is amended by adding the postmining land use of
fish and wildlife habitat and recreation lands to the list of land uses
where the WVDEP Director may grant a permit under the previously
specified provisions.
Sec. 22-3-15(h) is added to provide that the WVDEP Director may
provide a compliance conference when requested by the permittee.
Sec. 22-3-17(b) is amended by adding a paragraph to the end of the
subsection concerning the reinstating, within one year, of a revoked
permit.
Sec. 22-3-18(c) is amended by deleting the word ``shall'' in two
locations and replacing those words with ``may.'' With these revisions,
a permit ``may'' not be issued until the applicant submits proof that a
violation is being corrected, and a permit ``may'' not be issued if the
applicant is found to be affiliated with a person who has had a permit
or bond revoked for failure to reclaim.
Sec. 22-3-18(f) is added to provide that the prohibition of
subsection 22-3-18(c) may not apply to a permit application due to any
violation resulting from an unanticipated event or condition at a
surface coal mine eligible for remaining under a permit held by the
applicant.
Sec. 22-3-28 The title of this provision is amended from special
``permits'' to special ``authorization'' for reclamation of existing
abandoned coal processing waste piles. In addition, the following is
added to the title: coal extraction as an incidental part of
development of land for commercial, residential, industrial, or civic;
no cost reclamation contract. In addition, throughout this provision,
the term ``permit'' is replaced with ``authorization.''
Sec. 22-3-28(b) is amended in the last sentence by changing the
validity of a special authorization from ``until work permitted is
completed'' to ``for two years.'' Sec. 22-3-28(c) is amended by
changing ``shall'' to ``may.'' Under this change, anyone who has been
issued a special authorization ``may'' not be issued an additional
special authorization unless satisfactory evidence has been submitted
to the WVDEP Director.
Sec. 22-3-28(d) is amended by deleting the words ``special permit''
and replacing them with the words ``reclamation contract.'' In
addition, the second from the last sentence is being deleted. That
sentence reads: ``The director shall promulgate specific rules for such
operations:''.
Sec. 22-3-28(e) This new subsection is added to provide that no
person may engage in coal extraction pursuant to a government financed
reclamation contract without a valid surface mining permit unless such
person affirmatively demonstrates that he is eligible to secure special
authorization to engage in a government financed reclamation contract
authorizing incidental and necessary coal extraction. The new
subsection further specifies the criteria under which this provision
may be implemented.
2. CSR 38-2 of the West Virginia Surface Mining Reclamation Regulations
38-2-2.4 The definition of ``acid-producing coal seam'' is amended
by deleting coal seams commonly associated with acid-producing
minerals. The last sentence is amended by deleting reference to the
multiple seams whose names were deleted and to refer instead to single
seams.
38-2-2.120 is amended by changing the phrase ``land or water
resources'' to read ``land and water resources.''
38-2-3.2.e is amended by deleting the last sentence. The deleted
language requires that permits that are being renewed or significantly
revised and permit applications which are being significantly revised
must be advertised in accordance with paragraph 38-2-3.2.b and
paragraph (6), subsection (a), section 9 of the Act.
38-2-3.12 concerning subsidence control plans is amended to require
that the survey map required by subsection 3.12.a.1 identify the
location and type of water supplies. Language has been added to require
the survey to identify whether subsidence could contaminate, diminish
or interrupt water supplies. Language is also added to authorize, upon
the submittal of justifying technical analysis, of an angle of draw
other than the specified 30 degrees.
38-2-3.12.a.2 is added to require surveys of water supplies and
structures that could be damaged within the applicable angle of draw.
Two provisors are added that would allow an exemption or postponement
of the pre-subsidence survey requirements for areas of extraction of
less than or equal to 60 percent.
In addition, a provision is added to state that if the permittee is
denied access to the land or property for the purpose of conducting the
pre-subsidence survey, the permittee will notify the owner, in writing,
that no presumption of causation will exist.
Survey reports shall be signed by the person or persons who conduct
the survey, and a copy shall be provided to the WVDEP Director.
Finally, the meaning of the term ``non-commercial building'' is
clarified.
38-2-3.14.b.7 and 14.b.8 are deleted. These provisions require a
PHC and a hydrologic reclamation plan.
38-2-3.14.b.12.E is amended by adding that ``if requested by the
Director'' a stability analysis of the existing abandoned coal
processing waste pile is required.
38-2-3.14.b.13.B. The existing language is deleted and replaced in
its entirety.
This new language provides the requirement and criteria for
diverting surface water around or over the refuse disposal piles.
38-2-3.29 concerning incidental boundary revisions (IBR) is amended
by adding language to authorize that IBR's
[[Page 31545]]
also could include areas where the WVDEP Director determines that
limited coal removal on areas immediately adjacent to the existing
permit is the only practical alternative to recovery of unanticipated
reserves or necessary to enhance reclamation efforts or environmental
protection.
38-2-3.35 is added to specify the standards for grade and linear
measurements.
38-2-5.5.c is amended to add that for permanent impoundments, the
landowner sign a request that the structure be left for recreational or
other purposes.
Language is deleted that requires that the operator also sign the
request, and that the request assert that the landowner assumes
liability for the structure and will provide for sound future
maintenance of the structure.
38-2-6.5.a is amended by adding language to allow for blasting on
Sunday if the WVDEP Director determines that the blasting is necessary
and there has been an opportunity for a public hearing.
38-2-8.2.e is added to encourage and specify the criteria for
timber windrowing to promote the enhancement of food, shelter, and
habitat for wildlife.
38-2-9.2.i.2 is amended by adding one sentence to specify that an
alternate maximum or minimum soil pH may be approved based on the
optimum pH for the revegetated species.
38-2-9.3.h.1 is deleted and replaced in its entirity. The revised
provision changes the minimum tree stocking rate from 600 trees per
acre to no less than 450 stems per acre.
38-2-9.3.h.2 is deleted. This provision specified a minimum
percentage of commercial tree species. The criteria for commercial
species is now in 38-2-9.3.h.1.
38-2-9.3.h.2 (formerly h.3) is being revised to change the survival
rate from 450 trees to 300 trees per acre, or the rate specified in the
forest management plan, whichever is greater.
38-2-14.11.e concerning inactive status is amended to delete the
three-year limit on inactive status for preparation plants and load-out
facilities. Added language authorizes the WVDEP Director to grant
inactive status for a period not to exceed ten years, provided the
facilities are maintained in such condition that operations could be
resumed within 60 days.
38-2-14.11.f is added to authorize the WVDEP Director to grant
inactive status for a period not to exceed current permit term plus
five years for underground mining operations provided the operation is
maintained in such condition that the operations could be resumed
within 60 days and openings are protected from unauthorized entry.
38-2-14.11.g is added to authorize the WVDEP Director to grant
inactive status for a period not to exceed ten years for coal refuse
sites provided the completed lifts of the coal refuse site are regraded
(which may include topsoiling), seeded and drainage control, where
possible, has been installed in accordance with the terms and
conditions of the permit.
38-2-14.11.h is added to provide that the WVDEP Director may grant
inactive status for a permit for a longer term than set forth in
14.11.e. and f. Provided, the permittee shall furnish and maintain bond
that is equal to the estimated actual reclamation cost, as determined
by the director, The director shall review the estimated actual
reclamation cost at least every two and one-half years.
38-2-14.15.c, concerning reclaimed areas, is amended to delete
language concerning Phase I bond release and semi-permanent ancillary
facilities. Language is added to provide that regraded areas must also
be stabilized. Also added is a list that identifies areas and criteria
that shall not be included in the calculation of disturbed area:
14.15.c.1. Semi-permanent ancillary facilities; 14.15.c.2. Areas within
the confines of excess spoil disposal fills which are under
construction; 14.15.c.3. Areas containing 30 aggregate acres or less
which have been cleared and grubbed and have the appropriate drainage
controls installed and certified; 14.15.c.4. Areas that have been
cleared and grubbed with exceed the thirty aggregate acres and/or those
which will not be included in the operational area within six months;
14.15.c.5. Areas which have been backfilled and graded with material
placed in a stable, controlled manner which will not subsequently be
moved to final grade, mechanically stabilized, and had drainage
controls installed.
38-2-14.15.d. This provision is amended by adding a final sentence
to provide that the WVDEP Director may consider contemporaneous
reclamation plans on multiple permitted areas with adjoining boundaries
where contemporaneous reclamation is practiced on a total operation
basis.
38-2-16.2.c is amended by adding an explanation of the term
``material'' damage. ``Material'' means functional impairment of
surface lands, features, structures or facilities; any physical change
that has a significant adverse impact on the affected land's capability
to support or reasonably foreseeable uses or causes significant loss in
production or income; or any significant change in the condition,
appearance or utility of any structure from its pre-subsidence
condition.
38-2-16.2.c.2 is amended by adding a final sentence to provide that
the provision applies only to subsidence related damage caused by
underground mining activities conducted after October 24, 1992.
38-2-16.2.c.3 is added to provide that if alleged subsidence damage
occurs to protected structures as a result of earth movement within the
area in which a pre-subsidence structural survey is required, a
rebuttable presumption exists that the underground mining operation
caused the damage.
38-2-16.2.c.3.A is added to provide that if the permittee was
denied access to conduct a pre-subsidence survey, no presumption of
causation will exist.
38-2-16-2.c.3.B. This provision is added to provide that the
presumption will be rebutted if, for example, the evidence establishes
that: the damage predated the mining in question; the damage was
proximately caused by some other factors or was not proximately caused
by subsidence; or the damage occurred outside the surface area within
which subsidence was actually caused by the mining in question.
38-2-16.2.c.3.C. This provision is added to provide that in any
determination whether damage to protected structures was caused by
subsidence from underground mining, all relevant and reasonably
available information will be considered by the director.
38-2-16.2.c.4. This provision is added to provide that when
subsidence related material damage occurs to lands, structures, or
water supply, and if the director issues violation(s), the director may
extend the 90-day abatement period to complete repairs, but shall not
exceed one year from date of violation notice. Provided, however, the
permittee demonstrates, in writing, that it would be unreasonable to
complete repairs within the 90-day abatement period. If extended beyond
90 days, as part of the remedial measures, the permittee shall post an
escrow bond to cover the estimated costs of repairs.
38-2-20.1.e is added to provide that the permittee may request an
on-site compliance conference, and out the requirements related to such
a conference. Neither the holding of a compliance conference nor any
opinion given by an authorized representative of the director at a
conference shall affect the following:
[[Page 31546]]
38-2-20.1.e.1. Any rights or obligations of the director or by the
permittee with respect to any inspection, notice of violation, or
cessation order, whether prior to or subsequent to the compliance
conference; or
38-2-20.1.e.2. The validity of any notice of violation or cessation
order issued with any condition or practice reviewed at the compliance
conference.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is now
seeking comments on the proposed amendment submitted by the State of
West Virginia to its permanent regulatory program. Specifically, OSM is
seeking comments on the revision to the State's Code and regulations
that were submitted on April 28, 1997, and amended on May 14, 1997.
Comments should address whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the West Virginia program.
Written Comments
Written comments should be specific, pertain only to the issue
proposed in this notice 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 comment at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by close of
business on June 25, 1997. If no one requests an opportunity to comment
at a public hearing, 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 responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to comment have been heard. Persons in the audience
who have not been scheduled to comment, and who wish to do so, will be
heard following those scheduled. The hearing will end after all persons
scheduled to comment and persons present in the audience who wish to
comment have been heard.
Public Meeting
If only one person requests an opportunity to comment at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendments may request a meeting at the Charleston Field Office 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 part
of the Administrative Record.
Any disabled individual who has need for a special accommodation to
attend a public hearing 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 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 or any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 30, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-15008 Filed 6-9-97; 8:45 am]
BILLING CODE 4310-05-M
