Permanent program and abandoned mine land reclamation plan submissions: West Virginia,

[Federal Register: May 27, 1999 (Volume 64, Number 102)]

[Proposed Rules]

[Page 28771-28773]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27my99-22]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-082-FOR]

West Virginia Permanent Regulatory Program

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

ACTION: Proposed rule.

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 the West Virginia regulations concerning definitions of ``area mining operations'' and ``mountaintop mining operations;'' variances from approximate original contour in steep slope areas; and emergency spillway designs. The amendment is intended to improve the operational efficiency of the State program, and to make the regulations consistent with the counterpart Federal regulations.

DATES: Written comments must be received on or before 4:00 p.m. on June 28, 1999. If requested, a public hearing on the proposed amendments will be held at 1:00 p.m. on June 21, 1999. Requests to present oral testimony at the hearing must be received on or before 4:00 p.m. on June 11, 1999.

ADDRESSES: Your 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. You 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.

[[Page 28772]]

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Charleston Field Office; telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

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

2. Discussion of the Proposed Amendment

   By letter dated May 5, 1999 (Administrative Record Number WV-1127), the West Virginia Division of Environmental Protection (WVDEP) submitted an amendment to the West Virginia program pursuant to 30 CFR 732.17. The amendment concerns changes to the West Virginia regulations made by the State legislature in House Bill 2533. In addition, the WVDEP requested that OSM reconsider its disapproval of parts of CSR 38- 2-3.12 (concerning subsidence control plan) and 38-2-16.2 (concerning subsidence control, surface owner protection) and remove the corresponding required regulatory program amendments specified in the February 9, 1999, Federal Register (64 FR 6201-6218) in light of the April 27, 1999, United States Court of Appeals decision on Case No. 98- 5320.

   The amendments submitted by the WVDEP are identified below.

   1. CSR 38-2-2.11 Definition of ``Area Mining Operation.'' In this new definition, ``Area Mining Operation'' is defined to mean a mining operation where all disturbed areas are restored to approximate original contour (AOC) unless the operation is located in steep slope areas and a steep slope AOC variance in accordance with subsection 14.12 of this rule has been approved. An area mining operation may remove all or part of coal seam(s) in the upper fraction of a mountain, ridge, or bill. However, it is not classified as a mountaintop operation for one or more of the following reasons:

      2.11.a. The site may be restored to AOC; or

      2.11.b. The entire coal seam may not be removed.

   2. CSR 38-2-2.78 Definition of ``Mountaintop Mining Operation.'' In this new definition, ``Mountaintop Mining Operation'' is defined to mean a mining operation that removes an entire coal seam or seam(s) in an upper fraction of a mountain, ridge, or hill and creating a level plateau or a gently rolling contour with no highwalls. The approved postmining land use must be in accordance with 22-3-13(c)(3).

   3. CSR 38-2-3.12 Subsidence control plan.'' Subdivision 3.12.a.2. is amended to change the words ``could contaminate, diminish or * * *'' to read ``could be contaminated, diminish or * * *.''

      The second paragraph of subdivision 3.12.a.2. is amended by adding the word ``building'' to read as follows: ``A survey of the condition of all non-commercial building or residential * * *.''

      Subdivision 3.12.a.2.B. is amended to change the words ``Non- commercial building as used in this section means, other than * * *'' to read ``Non-commercial building as used in this section means any building, other than * * *.''

   4. CSR 38-2-3.32.b. Findings-permit issuance. In the third paragraph, the name of the database ``Surface Mining Information System'' is deleted and replaced by ``Environmental Resources Information Network.''

   5. CSR 38-2-2.35 Construction tolerance. This subsection is amended by adding the title ``Construction Tolerance.''

   6. CSR 38-2-14.12.a.1. Variance from approximate original contour requirements. This provision is amended by adding the following language: ``and the land after reclamation is suitable for industrial, commercial, residential or public use (including recreational facilities).'' As amended the provision reads as follows.

      ``The permit area is located on steep slopes as defined in subdivision 14.8.a. of this rule and the land after reclamation is suitable for industrial, commercial, residential or public use (including recreational facilities).

   7. CSR 38-2-16.2. Surface owner protection. Subdivision 38-2- 16.2.c. is amended by adding the word ``damage'' after the word ``Material'' at the beginning of the first sentence. In addition, the words ``or facility'' are added after the word ``structure'' and before the word ``from'' near the end of the first sentence.

      Subdivision 38-2-16.2.c.3. is amended to delete the word ``occurs'' after the words ``subsidence damage'' and before the words ``to any.''

   8. CSR 38-2-22.4.g. Primary and emergency spillway design. The Subdivision is amended by changing the probable maximum precipitation event for impoundments meeting the size or other criteria of 30 CFR 77.216(a) from a 24-hour storm event to a ``six (6)'' hour storm event.

3. Public Comment Procedures

   We are seeking comments, in accordance with the provisions of 30 CFR 732.17(h), on the proposed amendment submitted by the State of West Virginia by letter dated May 5, 1999. Your 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

   Your written comments should be specific, pertain only to the issues proposed in this notice and include explanations in support of your 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

   If you wish to comment at the public hearing, you should contact the person listed above at FOR FURTHER INFORMATION CONTACT by close of business on June 11, 1999. If no one requests an opportunity to comment at a public hearing, the hearing will not be held.

   If you file a written statement at the same time that you request a hearing, the statement will greatly assist the person who will make a transcript of the hearing.

   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 then a public hearing, may be held. Persons wishing to meet with us to discuss the proposed amendments, may request a meeting at the Charleston Field Office by contacting the person listed above at 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

   [[Page 28773]]

   listed above at ADDRESSES. A written summary of each public meeting will be made part of the Administrative Record.

   If you are disabled and have need for a special accommodation to attend a public hearing, please contact the person listed above at FOR FURTHER INFORMATION CONTACT.

4. 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 determinations 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 on any governmental entity or the private sector.

   List of Subjects in 30 CFR Part 948

   Intergovermnetal relations, Surface mining, Underground mining.

   Dated: May 19, 1999. Allen D. Klein, Regional Director, Appalachian Regional Coordinating Center.

   [FR Doc 99-13335Filed5-26-99; 8:45 am]

   BILLING CODE 4310-05-M