03-19436. West Virginia Regulatory Program

AGENCY:

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

ACTION:

Proposed rule; reopening of public comment period.

SUMMARY:

We are reopening the comment period to provide the public an opportunity to review and comment on a document submitted by the State of West Virginia which further clarifies a proposed amendment to the State's regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The program amendment consists of changes to the West Virginia Surface Mining Reclamation Regulations as contained in House Bill 2663. The amendment is intended to improve the effectiveness of the West Virginia program.

DATES:

We will accept written comments on this amendment until 4 p.m. (local time), on August 15, 2003.

ADDRESSES:

You should mail or hand-deliver written comments to Mr. Roger W. Calhoun, Director, Charleston Field Office at the address listed below.

You may review copies of the West Virginia program, the amendment, the clarification document, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment and the State's clarification 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 Department of Environmental Protection, 10 McJunkin Road, Nitro, West Virginia 25143, Telephone: [phone].

In addition, you may review copies of the proposed amendment and the related document during regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area Office, 75 High Street, Room 229, PO Box 886, Morgantown, West Virginia 26507, Telephone: [phone]. (By Appointment Only)

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]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the West Virginia Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

By letter dated May 2, 2001, the West Virginia Department of Environmental Protection (WVDEP) sent us a proposed amendment to its program (Administrative Record Number WV-1209) under SMCRA (30 U.S.C. 1201 et seq.). The program amendment consisted of changes to the West Virginia Surface Mining Reclamation Regulations at 38 Code of State Regulations (CSR) Series 2 as amended by House Bill 2663. The proposed amendment responded, in part, to the required program amendments codified in the Federal regulations at 30 CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), (hhhh), (jjjj), (nnnn), and (pppp). In order to expedite our review of the State's responses to the required amendments, we separated those amendments from the current amendment and we published our approval of those amendments in the Federal Register on May 1, 2002 (67 FR 21904).

On February 26, 2003, we sent the State a list of questions to help us better understand the remaining proposed amendments (Administrative Record Number WV-1365). The State responded by letter dated July 1, 2003 (Administrative Record Number WV-1365). The State's response is quoted below.

The following is additional clarification to Office of Surface Mining in answer to questions posed by OSM concerning the deletion of the definition for “cumulative impact,” the addition of a definition of “material damage to the hydrologic balance outside the permit area,” and the addition of a provision qualifying certain coal removal during reclamation as government financed construction exempt from a permit. These rules were passed in the 2001 Legislative session and were submitted to OSM as program amendments in May 2001. The rationale for these changes are to provide a narrative standard for reviewers to utilize when making findings relative to the hydrologic balance in and around the area of the proposed mining operation and to make the State delegated program language more similar to the Federal regulations.

[Material Damage and Cumulative Impact at CSR 38-2-3.22.e and CSR 38-2-2.39, respectively.]

The changes in the West Virginia Surface Mining Reclamation Rules relative to the added phrase defining “material damage to the hydrologic balance outside the permit area” and deleting the defined term “cumulative impact” are addressed together. These changes were made to set forth some objective criteria to use in making the determination required by SMCRA that a proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The added definition in the West Virginia rules provides a narrative standard, based upon use, for the reviewer to apply to make the required findings rather than leaving the threshold(s) to be assigned to the unguided discretion of an individual reviewer.

The Federal regulations at 30 CFR 773.15(e) requires [a determination that the proposed operation has been designed to prevent] material damage to the offsite hydrologic balance. The Federal program does not currently contain a standard, narrative or otherwise, to ascertain when such material damage would occur. Rather, the Federal program appears to leave this call to the discretion of the States. However, the Federal program does contain material damage criteria for the effects of mining associated with subsidence and alluvial valley floors based upon functionality and use (See 30 CFR 701.5). The definition submitted as a program amendment establishes a narrative threshold for material damage to the hydrologic balance, which is patterned after related definitions in the federal program, and is based upon the use of State waters. Additionally, the proposed definition is consistent with the administration and implementation of the State counterpart to the Clean Water Act in that the use of State waters established under the water program is recognized when the State SMCRA authority makes the assessment of cumulative hydrologic impacts.

Including the narrative threshold for material damage to the hydrologic balance obviates the need for the definition for “cumulative impact.” Even though the definition of “cumulative impact” is deleted, the defined term “cumulative impact area” remains. In addition, other sections of the WV rules require the applicant to show no material damage outside of the permit area and to assess the cumulative impacts within the cumulative impact area.

The reviewer of a proposal to conduct mining operations must delineate the area to be considered in assessing hydrologic consequences in accordance with the statute, rules and 1999 CHIA Writing Guidelines utilizing the actual or designated use and parameters designed to protect the same, as established by the WVDEP Division of Water Resources. The uses are outlined in the West Virginia Legislative rules 46CSR1 and include the propagation and maintenance of fish and other aquatic life. Water quality standards were designed to protect established uses. A review process wherein the SMCRA authority would develop or utilize thresholds/parameters for effluent discharges other than those established by the Clean Water Act program would likely result in interfering with the administration of the CWA. The WVDEP approach considers the numerical limits and water resource use designated by the water quality programs to make the assessment required by the mining program, thus precluding such interference.

[Exemption for Government-Financed Construction at CSR 38-2-3.31.c.]

The change to allow coal removal in conjunction with a reclamation project is designed to encourage/result in low cost or no-cost reclamation as provided for in the federal program (see 30 CFR 707.5). The state rule contains the same language as the federal regulations, except the State refers to the WV code and the federal counterpart refers to Title IV. The WV Code 22-3-28(e) is a subsection of 22-3-28. It is the only subsection that mentions government-financed reclamation. Therefore, it is obvious that subsection (e) is the only applicable subsection to which 38CSR2-3.31(c) could apply.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment, as further clarified in the State's clarification letter dated July 1, 2003, satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the West Virginia program.

Written Comments

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Charleston Field Office may not be logged in.

Electronic Comments

Please submit Internet comments as an ASCII, Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS NO. WV-091—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

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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.

IV. Procedural Determinations

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 12866—Regulatory Planning and Review

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

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 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 because each 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 the Federal regulations at 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.

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 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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 certifies 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. 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.

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; and (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 analysis performed under various laws and executive orders for the counterpart Federal regulations.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 948

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: July 18, 2003.

Brent Wahlquist,

Regional Director, Appalachian Regional Coordinating Center.