[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38382-38388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18610]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 948
[WV-075-FOR]
West Virginia Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing the approval, with certain exceptions, of
[[Page 38383]]
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 Act). 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.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT:
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.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. 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. Submission of the 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 30 CFR 732.17. The amendment contains revisions to the West
Virginia Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et
seq.).
The proposed amendment was published in the April 23, 1996, Federal
Register (61 FR 17859), and in the same notice, OSM opened the public
comment period and provided opportunity for a public hearing on the
adequacy of the proposed amendment. The comment period closed on May
23, 1996.
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, and 30 CFR 948.16 for the
required amendments.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the West Virginia program.
1. Sec. 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 in a constructed valley fill, backfill, dam, or refuse pile. The
Director finds the term as revised to be substantively identical to and
no less effective than one of the two options contained in the
counterpart Federal definition at 30 CFR 701.5
2. Sec. 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 changes may be
grouped and readvertised if the changes do not significantly affect the
health, safety or welfare of the public and do not significantly affect
the method of operation, the reclamation plan, and/or the original
advertisement. This notice is in addition to the original advertisement
requirement of one advertisement per week, for four successive weeks.
The Director finds the added language does not render the provision
less effective than the Federal regulations at 30 CFR 773.13 concerning
public participation in permit processing.
3. Sec. 38-2-3.6(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.'' The Director finds that the
citation change does not render the provision less effective than the
Federal regulations at 30 CFR 780.25(a) concerning preparation and
certification of plans.
4. Sec. 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 [existing] 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 construction.'' 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.
The Federal regulations at 30 CFR 701.11(e)(1), provide for a
similar exemption. Such exemptions to design requirements for existing
structures can be granted as part of the permit application process
after obtaining the information required by the State counterparts to
30 CFR 780.12 or 784.12 and after making the findings required in the
State counterparts to 30 CFR 773.15. Proposed subsection 3.8(c) does
not refer to these State counterparts. However, since these
counterparts are, indeed, part of the State's program (see Sec. 38-2-
3.8(b), 3.32(d)(6)), cross-references to those provisions in subsection
3.8(c) are unnecessary.
The Federal regulations at 30 CFR 701.11(e)(2) provide that such
exemptions shall not apply to (a) the requirements for existing and new
coal mine waste disposal facilities; and (b) the requirements to
restore the approximate original contour of the land. The West Virginia
program, however, lacks a counterpart to these Federal limitations
concerning the applicability of the proposed exemption.
The Director is approving the amendments to CSR 38-2-3.8(c). In
addition, the Director is requiring that West Virginia further amend
the West Virginia program to be consistent with 30 CFR 701.11(e)(2) by
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to 1)
the requirements for new and existing coal mine waste disposal
facilities; and 2) the requirements to restore the land to approximate
original contour.
5. Sec. 38-2-3.27 Permit renewals and extensions. The introductory
paragraph of this provision is amended by deleting the word ``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
[[Page 38384]]
permit. As amended, the provision provides that the Director of the
WVDEP 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. The Director finds that the proposed provision is
substantively identical to and no less effective than the Federal
regulations at 30 CFR 773.11, which provides that an operator does not
have to renew a permit to conduct reclamation activities.
6. Sec. 38-2-4.4 Infrequently used access roads. 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. The Director finds the changes to be
consistent with the Federal regulations at 30 CFR 816/817.150. In
addition, the amendments satisfy the required program amendments
codified at 30 CFR 948.16(rr). 30 CFR 948.16(rrr) required that West
Virginia revise Sec. 38-2-4.4 to require that all infrequently used
access roads comply with Sec. 38-2-4.9. Since this required amendment
has been satisfied, it is hereby removed.
7. Sec. 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 WVDEP 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,
these amendments replaces a requirement that all changes documented as
as-built plans be submitted as a permit revision, with a requirement
that when such changes are submitted, the submittal shall include an
explanation of the changes, and a certification that the changes will
meet performance standards
The Director finds that the deletion of the requirement to submit
as-built plans to the Director of the WVDEP renders the amendment
provision less effective than the Federal regulations at 30 CFR
774.11(c) concerning regulatory review of permits. In effect, the
automatic acceptance of certified as-built plans removes the regulatory
authority from its responsibility under 30 CFR 774.11(c) which requires
a finding for even minor permit revisions. This finding by the
regulatory authority must address all program requirements, not just
performance standards.
Therefore, the Director is approving the proposed changes, except
to the extent that the Director of the WVDEP is removed from the
responsibility of reviewing permit revisions (such as as-built plans
changes) as is required under 30 CFR 774.11(c). In addition, the
Director is requiring that the State further amend CSR 38-2-4.12 to
reinstate the following deleted language: ``and submitted for approval
to the Director as a permit revision.''
8. Sec. 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.
The Director finds that the removal of the reference to slurry
impoundments renders the States provision unclear as to its application
to slurry impoundments. If, the provision does not apply to slurry
impoundments (which appears to be the purpose of the deletion), the
provision is rendered less effective than the Federal regulations at 30
CFR 816/817.49 and cannot be approved. Therefore, the Director is
approving the provision except to the extent that the provision does
not apply to slurry impoundments. In addition, the Director is
requiring that the State further amend the West Virginia program by
clarifying that the requirements at CSR 38-2-5.4(c) also apply to
slurry impoundments. The Director notes that this can be accomplished
either by reinstating the deleted language or be replacing the term
``water retention structure'' with the term ``impoundment.''
9. Sec. 38-2-11.6(a) Review of permits for adequacy of bond. This
provision is amended to relocate the site-specific bonding requirements
applicable to all four categories of mining at the time of permit
renewal or mid-term review, whichever occurs first. These requirements
also do not allow a permit to be renewed until the appropriate amount
of bond has been posted. However, the Director finds the proposed
revision, which is merely for organizational purposes, is not
inconsistent with the Federal bonding requirements at 30 CFR 800.13 and
30 CFR 774.15(c).
10. Sec. 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, activities for which a permittee may receive
bond reduction credits are no longer required to be performed within
five years from the date of SMA approval. The Director finds that,
although there are no direct Federal counterparts, the proposed
provisions would have no significant financial impacts and, therefore,
would not adversely affect the findings that formed the basis for the
Secretary's approval of the alternative bonding system pursuant to 30
CFR 800.11(e).
11. Sec. 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 the
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.
[[Page 38385]]
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) at
page 6517.
The proposed language concerning incremental bond release could be
implemented in a manner that is no less effective than the Federal
requirements at 30 CFR 800.40(c) concerning bond release. The proposed
language provides that the bond remaining after Phase I release, or the
other financial resources committed to the treatment, must be adequate
to assure long-term treatment of this discharge. In addition, the new
language provides that the other financial resources committed to long-
term treatment must be irrevocably committed, and the currently
approved bonding requirements continue to apply. Finally, while these
new provisions will provide bond monies for long-term treatment, they
in no way eliminate the currently approved provisions that provide for
adequate bond monies to assure completion of the approved reclamation
plan (for example, to assure revegetation).
Therefore, the Director is approving the proposed revisions at CSR
38-2-12.2(e) to the extent that passive treatment, where it is
implemented to achieve compliance with effluent limitations or water
quality standards, is chemical treatment under the West Virginia
program definition of chemical treatment at CFR 38-2-2.20.
12. Sec. 38-2-14.3(c) Topsoil substitutes. The Director is
deferring action on this proposed amendment because it was
inadvertently omitted from the proposed rule notice published on April
23, 1996 (61 FR 17859) that announced the changes submitted by the
State and requested public comment. The Director will provide
opportunity for public comment on this change in the near future by
notice in the Federal Register.
13. Sec. 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 100 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.
The Federal regulations prohibit uncontrolled flow onto excess
spoil fills and require that diversion channels be constructed off the
fills. OSM's technical committee agreed that such diversions could be
constructed on durable rock fills, but it never addressed their use on
valley fills. (See the August 16, 1995, Federal Register (60 FR 42437)
for a discussion of OSM's approval of West Virginia's recently revised
provisions concerning durable rock fills.) Given the differences in the
construction techniques of the two types of fills, OSM cannot say with
any confidence that the proposal, which would allow the construction of
diversions on valley fills, its environmentally sound. The State needs
to submit scientific evidence to OSM demonstrating that the proposed
method of construction will not harm the long-term integrity of valley
fills. A technical evaluation of this issue must occur before OSM can
find the proposed State requirements at subsection 14.14(e)(4) to be no
less effective than 30 CFR 816/817.72(a)(2). Therefore, the Director is
not approving the proposed amendments at this time. Since this
requirement is to take effect on July 1, 1996, OSM requests that its
implementation be delayed and the WVDEP continue to require that runoff
be diverted around valley fills until the study can be completed and a
final determination is rendered by OSM.
14. Sec. 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 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 (sic) 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.
The Director finds, that in accordance with 30 CFR 816/817.102(e),
except for the requirements concerning disposal, foundation
investigations, and emergency procedures, the proposed language is
consistent with and no less effective than the Federal regulations at
30 CFR 816/817.81 concerning coal mine waste. The Director is approving
this amendment only to the extent that, with the disposal of coal
processing waste in the backfill, the backfill will not exceed the
approximate original contour (AOC). If AOC is exceeded, then the
disposal of coal processing waste in the backfill must comply with the
West Virginia program counterparts to 30 CFR 816/817.83 concerning coal
mine waste--refuse piles. In addition, the Director is requiring that
the State further amend the West Virginia program to require compliance
with 30 CFR 816/817.81 (b), (d), and (e) regarding coal refuse
disposal, foundation investigations and emergency procedures and to
clarify that where the coal processing waste proposed to be placed in
the backfill contains acid- or toxic-producing materials, such material
must not be buried or stored in proximity to any drainage course such
as springs and seeps, must be protected from groundwater by the
appropriate use of rock drains under the backfill and along the
highwall, and be protected from water infiltration into the backfill by
the use of appropriate methods such as diversion drains for surface
runoff or encapsulation with clay or other material of low
permeability. That is, such acid- or toxic-producing materials must be
hydraulically separated from any groundwater and from water
infiltration into the backfill.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), on
May 1, 1996, comments were solicited from various interested Federal
agencies (Administrative Record Number WV-1030). The U.S. Army Corps of
Engineers responded that they found the amendments to be satisfactory.
The U.S. Department of Labor, Mine Safety and Health Administration
(MSHA) responded with several comments. However, non of the comments
MSHA submitted pertain to the provisions that are being amended by the
State. Therefore, those comments will not be discussed in this notice.
[[Page 38386]]
Public Comments
A public comment period and opportunity to request a public hearing
was announced in the April 23, 1996, Federal Register (61 FR 17859).
The comment period closed on May 23, 1996. No one requested an
opportunity to testify at the scheduled public hearing so no hearing
was held. The West Virginia Mining and Reclamation Association and the
West Virginia Coal Association responded and urged approval of the
amendments. No other public comments were received.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clear Air Act (42 U.S.C. 7401 et
seq.). On May 1, 1996, the Director requested EPA's concurrence and
comments (Administrative Record Numbers WV-1029, 1030).
EPA responded on June 27, 1996 (Administrative Record No. WV-1037)
and commented on two provisions. Concerning CSR 38-2-12.2(e), EPA
conditionally concurred, and stated that the proposed revision for
allowing bond release could result in a situation where less funds
would be available for long term treatment unless three critical areas
are addressed: (1)An accurate determination of the effectiveness,
duration, and long term costs of treatment must be made to avoid
underestimating abatement needs; (2) An assurance that the alternate
financial resources, which are described by the proposed revision, will
be irrevocably committed (such as in a trust fund, dedicated escrow
account, or other similar manner) to assure its availability for
treatment in case of bankruptcy; and (3) Assurance that the bond monies
set aside for long term water treatment are in addition to the bond
monies needed to assure the completion of the reclamation plan (such as
for revegetation).
In response, the Director acknowledges the EPA's concerns, but
believes that these results are not likely to occur. The proposed
language provides that the bond remaining after Phase I release, or the
other financial resources committed to the treatment, must be adequate
to assure long term treatment of the discharge. In addition, the new
language provides that the other financial resources committed to long
term treatment must be irrevocably committed, and the currently
approved bonding requirements continue to apply. Finally, while these
new provisions will provide bond monies for long term treatment, they
in no way eliminate the currently approved provisions that provide for
adequate bond monies to assure completion of the approved reclamation
plan (for example, to assure revegetation). Therefore, the Director is
approving the provisions.
The EPA commented that the revisions at CSR 38-2-14.15(m) could
result in acid seepage unless the approved handling plans include
diversion drains for surface runoff, refuse encapsulation with clay or
other material of low permeability, and rock drains under the backfill
and along the highwall, to intercept and convey groundwater away from
the refuse. As discussed above in Finding 14, the Director agrees and
is requiring that the State further amend the West Virginia program to
clarify that where the coal processing waste proposed to be placed in
the backfill contains acid- or toxic-producing materials, such material
must not be buried or stored in proximity to any drainage course such
as springs and seeps, must be protected from groundwater by the
appropriate use of rock drains under the backfill and along the
highwall, and be protected from water infiltration into the backfill by
the use of appropriate methods such as diversion drains for surface
runoff, encapsulation with clay or other material of low permeability.
That is, such acid- or toxic-producing materials must be hydraulically
separated from any groundwater and from water infiltration into the
backfill.
V. Director's Decision
Based on the findings above, the Director is approving the
amendment submitted by West Virginia on April 2, 1996, except as noted
below.
The Director is requiring that WVDEP further amend the West
Virginia program to be consistent with 30 CFR 701.11(e)(2) by
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to (1)
the requirements for new and existing coal mine waste disposal
facilities; and (2) the requirements to restore the land to approximate
original contour.
The amendments at CSR 38-2-4.4 satisfy the required program
amendment codified at 30 CFR 948.16(rrr), which is hereby removed.
CSR 38-2-4.12 is approved except to the extent that the Director of
the WVDEP is removed from its responsibility (under 30 CFR 774.11(c))
of reviewing permit revisions (such as reviewing as-built plans
changes). In addition, the Director is requiring that the State further
amend CSR 38-2-4.12 to reinstate the following deleted language: ``and
submitted for approval to the Director as a permit revision.''
CSR 38-2-5.4(c) is approved except to the extent that the provision
does not apply to slurry impoundments. In addition, the Director is
requiring that the State further amend the West Virginia program by
clarifying that the requirements at CSR 38-2-5.4(c) also apply to
slurry impoundments.
CSR 38-2-12.2(e) is approved to the extent that passive treatment,
where it is implemented to achieve compliance with effluent limitations
or water quality standards is chemical treatment under the West
Virginia program definition of chemical treatment at CFR 38-2-2.20.
Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring
action on this proposed amendment because it was inadvertently omitted
from the proposed rule notice published on April 23, 1996 (61 FR 17859)
that announced the changes submitted by the State.
CSR 38-2-14.14(e)(4) which would allow drainage to be diverted onto
valley fills is not approved and its implementation is to be delayed
pending the submission and approval of scientific evidence showing that
the proposed construction of diversions on valley fills will not
adversely affect their long-term stability.
CSR 38-2-14.15(m) is approved only to the extent that, with the
disposal of coal processing waste in the backfill, the backfill will
not exceed the approximate original contour (AOC). If AOC is exceeded,
then the disposal of coal processing waste in the backfill must comply
with the West Virginia program counterparts to 30 CFR 816.83 concerning
coal processing waste--refuse piles. In addition, the Director is
requiring that the State further amend the West Virginia program to
require compliance with the State counterparts to 30 CFR 816/817.81
(b), (d) and (e) regarding disposal, foundation investigations and
emergency procedures and to clarify that where the coal processing
waste proposed to be placed in the backfill contains acid-or toxic-
producing materials, such material must not be buried or stored in
proximity to any drainage course such as springs and seeps, must be
protected from groundwater by the appropriate use of rock drains under
the backfill and along the highwall, and be protected from water
infiltration into the backfill by the use of appropriate methods such
as diversion drains for surface runoff or encapsulation with clay or
other
[[Page 38387]]
material of low permeability. That is, such acid- or toxic-producing
materials must be hydraulically separated from any groundwater and from
water infiltration into the backfill.
The Federal regulations at 30 CFR Part 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In his
oversight of the West Virginia program, the Director will recognize
only the statutes, regulations and other materials approved by him,
together with any consistent implementing policies, directives and
other materials, and will require the enforcement by West Virginia of
only such provisions.
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 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
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.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 10, 1996.
Tim L. Dieringer,
Acting 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. In Section 948.15, paragraph (q) is added to read as follows:
Sec. 948.15 Approval of regulatory program amendments.
* * * * *
(q) The amendment to the West Virginia program concerning changes
to the West Virginia regulations as submitted to OSM on April 2, 1996,
is approved effective July 24, 1996 except as noted below:
CSR 38-2-4.12 is approved except to the extent that the Director
of the WVDEP is removed from the responsibility (as is required by
30 CFR 774.11(c)) of reviewing permit revisions (such as reviewing
as-built plans changes).
CSR 38-2-5.4(c) is approved except to the extent that the
provision does not apply to slurry impoundments.
CSR 38-2-12.2(e) is approved to the extent that passive
treatment, where it is implemented to achieve compliance with
effluent limitations or water quality standards is chemical
treatment under the West Virginia program definition of chemical
treatment at CFR 38-2-2.20.
Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring
action on this proposed amendment because it was inadvertently
omitted from the proposed rule notice published on April 23, 1996
(61 FR 17859) that announced the changes submitted by the State.
CSR 38-2-14.14(e)(4) which would allow drainage to be diverted
onto valley fills is not approved.
CSR 38-2-14.15(m) is approved to the extent that, with the
disposal of coal processing waste in the backfill, the backfill will
not exceed the approximate original contour (AOC). If AOC is
exceeded, then the disposal of coal processing waste--refuse piles.
3. Section 948.16 is amended by removing and reserving paragraph
(rrr), and adding paragraph (vvv) to read as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(vvv) By January 15, 1997, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise the West Virginia
program as follows:
(1) Amend the West Virginia program to be consistent with 30 CFR
701.11(e)(2) by clarifying that the exemption at CSR 38-2-3.8(c) does
not apply to (1) the requirements for new and existing coal mine waste
disposal facilities; and (2) the requirements to
[[Page 38388]]
restore the land to approximate original contour.
(2) Amend CSR 38-2-4.12 to reinstate the following deleted
language: ``and submitted for approval to the Director as a permit
revision.''
(3) Amend the West Virginia program by clarifying that the
requirements at CSR 38-2-5.4(c) also apply to slurry impoundments.
(4) Amend CSR 38-2-14.15(m), or otherwise amend the West Virginia
program to require compliance with 30 CFR 816/817.81 (b), (d), and (e)
regarding coal refuse disposal, foundation investigations and emergency
procedures and to clarify that where the coal processing waste proposed
to be placed in the backfill contains acid- or toxic-producing
materials, such material must not be buried or stored in proximity to
any drainage course such as springs and seeps, must be protected from
groundwater by the appropriate use of rock drains under the backfill
and along the highwall, and be protected from water infiltration into
the backfill by the use of appropriate methods such as diversion drains
for surface runoff or encapsulation with clay or other material of low
permeability.
[FR Doc. 96-18610 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M
