00-10278. West Virginia Regulatory Program

AGENCY:

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

ACTION:

Proposed rule; public comment period and opportunity for public hearing.

SUMMARY:

OSM is announcing receipt of a proposed amendment to the West Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The program amendment consists of changes to the West Virginia regulations (38 CSR 2) contained in House Bill 4223, and changes to the Code of West Virginia contained in Senate Bill 614. The amendments are intended to comply with the Consent Decree between the plaintiff and the West Virginia Division of Environmental Protection (WVDEP) entered on February 17, 2000, in the matter of Bragg v. Robertson, No. 2:98-636 (S.D.W.Va.).

DATES:

If you submit written comments, they must be received on or before 4 p.m. (local time), on May 25, 2000. If requested, a public hearing on the proposed amendments will be held at 1 p.m. (local time), on May 22, 2000. Requests to speak at the hearing must be received by 4 p.m. (local time), on May 10, 2000.

ADDRESSES:

Mail or hand-deliver your written comments and requests to speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston Field Office at the address listed below.

You may review copies of the West Virginia program, the proposed amendment, a listing of any scheduled hearings, and all written comments received in response to this document at the addresses below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the proposed amendment by contacting OSM's 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: [phone]. E-mail: [e-mail].

West Virginia Division of Environmental Protection, 10 McJunkin Road, Nitro, West Virginia 25143, Telephone: [phone]. The proposed amendment will be posted at the Division's Internet page: http://www.dep.state.wv.us.

In addition, you may review copies of the proposed amendment 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]

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director, Charleston Field Office; Telephone: [phone].

SUPPLEMENTARY INFORMATION:

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 approval in the January 21, 1981, Federal Register (46 FR 5915-5956). You can find later actions concerning the conditions of approval and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amendment

By letters dated March 14, 2000 (Administrative Record Number WV-1147) and March 28, 2000 (Administrative Record Number WV-1148), and electronic mail dated April 6, 2000 (Administrative Record Number WV-1149), the WVDEP submitted an amendment to its program. The amendment concerns changes to the West Virginia regulations made by the State legislature in House Bill 4223, and changes made to the Code of West Virginia in Senate Bill 614. Many of the amendments are intended to comply with the Consent Decree between the plaintiff and the West Virginia Division of Environmental Protection entered on February 17, 2000, in the matter of Bragg v. Robertson, No. 2:98-636 (S.D.W.Va.).

The amendments submitted by the WVDEP are identified below.

A. Senate Bill 614

Numerous wording and paragraph notation changes have been made. These are nonsubstantive changes that will not be discussed. The substantive changes are identified below.

1. W.Va. Code 22-3-3. Definitions.

At § 22-3-3(e) the definition of “approximate original contour” (AOC) is amended by deleting the word “disturbed” and adding in its place the word “mined.” As amended, AOC “means that surface configuration achieved by the backfilling and grading of the “mined” areas * * *.”

At § 22-3-3(u) (2), the definition of “surface mine,” “surface-mining” or “surface-mining operations” is amended by deleting the word “may” in the sentence immediately before subdivision (i), and replacing that word with the word “does.” As amended, the sentence reads: “Surface-mining does not include any of the following: * * *.”

At § 22-3-3(y), the definition of “lands eligible for remining” is amended in the second sentence by deleting the word “may” and adding in its place the word “do.” As amended, the sentence reads: “Surface-mining operations on lands eligible for remining “do” not affect the eligibility * * *.”

2. W.Va. Code 22-3-13 General environmental protection performance standards for surface mining; variances.

At § 22-3-13(c)(3), concerning mountaintop removal mining operations, the list of approvable postmining land uses is amended as follows. In the first sentence, the word “woodland” is deleted, the words “commercial forestry” are added, the words “or fish and wildlife habitat and recreation lands use” are deleted, the word “facility” and the words “including recreational uses” are added. As amended, the sentence reads as follows: “In cases where an industrial, commercial, agricultural, commercial forestry, residential, public facility including recreational uses is proposed for the postmining use of the affected land * * *.”

In addition, a new subdivision § 22-3-13(c)(3)(iii) is added to read as follows. “(iii) obtainable according to data regarding expected need and market.” The previously existing subdivision (iii) is renumbered as subdivision (iv), and so on.

3. W.Va. Code 22-3-23 Release of bond or deposits; application; notice; duties of director; public hearings; final maps on grade release.

At subsection § 22-3-23(c), a new subdivision (c)(1) is added to read as follows. “(1) For all operations except those with an approved variance from approximate original contour:” Previously existing subdivisions (c)(1), (2), and (3) have been relettered as (c)(1)(A), (B), and (C). As amended, § 22-3-23(c)(1) applies only to operations that do not have an approved variance from the AOC requirements.

New subsection § 22-3-23(c)(2) is added to specify the bond release requirements that apply only to operations with an approved variance from the AOC requirements.

B. House Bill 4223

1. CSR 38-2-2.31. Definition of commercial forestry and forestry. This new definition is added to read as follows.

2.31.a. Commercial Forestry, as used in Subsection 7.4 of this rule, means a long-term postmining land use designed to accomplish the following: (1) Achieve greater forest productivity than that found on the mine site before mining; (2) Minimize erosion and/or sediment yield and serve the hydrologic functions of infiltrating, holding, and yielding water commonly found in undisturbed forests; (3) Result in biodiversity by facilitating rapid recruitment of native species of plants and animals via the process of natural succession; (4) Result in a premium forest that will thrive under stressful conditions; and (5) Result in landscape, vegetation and water resources that create habitat for forest-dwelling wildlife.

2.31.b. Forestry, as used in Subsection 7.4 of this rule, means a long-term postmining land use designed to accomplish the following: (1) Achieve forest productivity equal to that found on the mine site before mining; (2) Minimize erosion and/or sediment yield and serve the hydrologic functions of infiltrating, holding, and yielding water commonly found in undisturbed forests; (3) Result in biodiversity by facilitating rapid recruitment of native species of plants and animals via the process of natural succession; and (4) Result in landscape, vegetation and water resources that create habitat for forest-dwelling wildlife.

2. CSR 38-2-2.31. Definition of downslope.

This definition is amended by deleting the words “except in operations where the entire upper horizon above the lowest coal seam is proposed to be partly or entirely removed.” As amended, “downslope” means the land surface between the projected outcrop of the lowest coal seam being mined along each highwall, or any mining-related construction, and the valley floor.

3. CSR 38-2-2.98. Definition of prospecting.

This definition is amended by deleting the word “substantial” before the word “disturbance” in the first sentence. The effect of this deletion is that the definition of “prospecting” is no longer limited to those activities that cause “substantial” disturbance.

4. CSR 38-2-2.123 Definition of substantially disturb.

This definition is amended by deleting the word “and” after the words “significantly impact land,” and adding in its place the word “or.” With this change, substantially disturb means to significantly impact land or water resources.

5. CSR 38-2-2.136 Definition of woodlands.

This definition is deleted.

6. CSR 38-2-3.8.c Structures and support facilities.

This subsection is amended by adding a concluding sentence which reads as follows. “This exemption shall not apply to new and existing coal waste facilities.”

7. CSR 38-2-3.25 Transfer, assignment, or sale of permit rights and obtaining approval.

This subsection is amended by adding the term “reinstatement” in the title of the subsection, and in four locations where the phrase “transfer, assignment, or sale” appears. In addition, subdivision 3.25.b. is amended by adding a sentence which states that, “as a condition of reinstatement, the Director may require a modification to the mining and reclamation plan.” With this amendment, the provisions of CSR 38-2-3.25 will apply to reinstated permits.

8. CSR 38-2-7.2.i Commercial woodland.

This provision is amended by deleting the word “woodland” from the land use category “commercial woodland,” and adding in its place the word “forestry.” The effect of this change is that “commercial forestry” is where forest cover is managed for commercial production of timber.

9. CSR 38-2-7.3 Criteria for approving alternative postmining use of land.

New subdivision 7.3.c. is added to provide that: “A change in postmining land use to grassland uses such as rangeland and/or hayland or pasture is prohibited on operations that obtain an approximate original contour variance described in WV Code § 22-3-13(b)(25)(c). Provided, however, That this subdivision is not effective until Sections 7.4 and 7.5 of this rule are approved by the federal Office of Surface Mining.”

10. CSR 38-2-7.4 Standards applicable to approximate original contour variance operations with a postmining land use of commercial forestry and forestry.

This provision is new and contains the following subsections:

7.4.a. Applicability. This provision applies to commercial forestry and forestry as defined at CSR 38-2-2.31 (see item B. 1. above).

7.4.b. Requirements. This subsection contains requirements concerning planting and management plan development, oversight procedures, landscape criteria, soil and soil substitutes, soil placement and grading, liming and fertilizing, ground cover vegetation, tree species and compositions, standards of success, and front faces of valley fills.

11. CSR 38-2-7.5 Homestead land use.

This subsection is new and contains the following subdivisions. Subdivision 7.5.a., requires that the minimum area for a homestead shall be at least one-half of the permit area. The remainder of the permit area shall support an alternate AOC variance use.

Subdivision 7.5.b. concerns the terms applicable only to homestead land use.

Subdivision 7.5.c. concerns the eligibility requirements and responsibilities for homesteaders.

Subdivision 7.5.d. concerns the rules for the homestead lottery.

Subdivision 7.5.e. concerns the homestead plan development.

Subdivision 7.5.f. concerns the provisions for financial commitments.

Subdivision 7.5.g. concerns the required elements for all homestead plans.

Subdivision 7.5.h. concerns the construction and conveyance of homestead parcels.

Subdivision 7.5.i. concerns required infrastructure.

Subdivision 7.5.j. concerns soils, soil placement and grading.

Subdivision 7.5.k. concerns requirements for reclamation maps.

Subdivision 7.5.l. concerns homestead village.

Subdivision 7.5.m. concerns community association.

Subdivision 7.5.n. concerns interim homestead management.

Subdivision 7.5.o. concerns bond release.

12. CSR 38-2-14.12. Variance from AOC requirements.

This provision is amended at subdivision 14.12.a.1. to delete the word “woodlands” and add in its place the words “commercial forestry.”

13. CSR 38-2-14.15 Contemporaneous reclamation standards.

This provision is amended at subdivision 14.15.f. concerning variance-permit applications to add a sentence which reads as follows: “Furthermore, the amount of bond for the operation shall be the maximum per acre specified in WV Code § 22-3-12(c)(1).”

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is seeking comments, on 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

If you submit written or electronic comments on the proposed amendment during the 30-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see ADDRESSES).

Electronic Comments

Please submit Internet comments as an ASCII, Word Perfect, or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. WV-085-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Charleston Field office at [phone].

Availability of Comments

Our practice is to make comments, including names and home addresses of respondents, available for public review during our regular business hours at the OSM Administrative Record Room (see ADDRESSES). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Public Hearing

If you wish to speak at the public hearing, you should contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on May 10, 2000. The location and time of the hearing will be arranged with those persons requesting the hearing. If no one requests an opportunity to speak at the public hearing, the hearing will not be held.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy of his or her testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard.

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.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with OSM representatives to discuss the proposed amendment, you may request a meeting 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 at the locations listed under ADDRESSES. A written summary of each meeting will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

Executive Order 13132—Federalism

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 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

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The state submittal which is the subject of this rule is based upon counterpart federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities.

Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the state. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart federal regulation.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

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: April 7, 2000.

John A. Holbrook,

Acting Regional Director, Appalachian Regional Coordinating Center.