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

[Federal Register: June 15, 1998 (Volume 63, Number 114)]

[Proposed Rules]

[Page 32632-32635]

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

[DOCID:fr15jn98-20]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-080-FOR]

West Virginia Permanent 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 permanent regulatory program (hereinafter referred to as the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The amendment consists of the revisions to the West Virginia Surface Mining Reclamation Regulations. The amendments are intended to improve the operational efficiency of the West Virginia program.

DATES: Written comments must be received on or before 4:00 p.m. July 15, 1998. If requested, a public hearing on the proposed amendments will be held at 1:00 p.m. on July 10, 1998. Requests to present oral testimony at the hearing must be received on or before 4:00 p.m. on June 30, 1998.

[[Page 32633]]

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 West Virginia program, the program amendment decision that is the subject of this notice, 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 changes 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 amendments that are the subject of this notice 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:

  1. 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.

  2. Discussion of the Proposed Amendment

    By letter dated May 11, 1998 (Administrative Record Number WV 1086), the West Virginia Division of Environmental Protection (WVDEP) submitted an amendment to its approved permanent regulatory program pursuant to the Federal regulations at 30 CFR 732.17(b). The recent West Virginia Legislative session amended CSR 38-2 of the State's Surface Mining Reclamation Regulations, and the West Virginia Governor signed the amendments on April 12, 1998.

    The proposed amendments are identified below.

    1. CSR 38-2-2 Definitions

      Subsection 2.25 The definition of ``Coal Remining Operation'' is amended to mean a coal mining operation on lands which would be eligible for expenditures under section four, article two of chapter twenty-two.

      Subsection 2.102 The definition of ``Remined Area'' is amended to mean only that area of any coal remining operation.

      The WVDEP explained that these changes were done to correspond with the Energy Policy Act of 1992, Public Law 102-846. the WVDEP stated that the changes are consistent with changes to Chapter 22, Article 3 of the Code of West Virginia, which were made during the last legislative session.

    2. CSR 38-2-3.14 Removal of Abandoned Coal Refuse Disposal Piles

      Subsection 3.14.a is amended by deleting the terms ``special permit'' and in their place adding the term ``reclamation contract.'' Also, the words ``permit application'' are deleted and replaced by the word ``request.''

      Subsection 3.14.b is amended by deleting the phrase ``an application for a special permit,'' and adding in its place the phrase ``a request for a reclamation contract.''

      Subsection 3.14.b.1 is amended by excluding subsections 3.1.c., d., k., n., and o. from the requirement that all information required by subsection 3.1 should be included in a request for a reclamation contract under subsection 3.14.b. Subsection 3.14.b.2 is amended by reducing the comment period from 30 days to 10 days.

      Subsection 3.14.b.3 is amended by deleting the phrase ``and where applicable subsection 3.3 of the regulations.''

      Subsection 3.14.b.4.E is amended by deleting the existing language and adding in its place the words, ``Permits or approvals as necessary from the appropriate environmental agencies or other agencies.''

      Subsection 3.14.b.7 is deleted.

      Subsections 3.14.b.8 through 3.14.b.15 have been renumbered as 3.14.b.7 through 3.14.b.14.

      Subsection 3.14.d is amended by deleting the existing language and adding in its place the words, ``Insurance and filing fee in accordance with subsection b. Of Section 28 of the Act.''

      Subsection 3.14.e is amended to read, ``Removal operations permitted under this subsection shall be subject to paragraph 1., subsection 22.5 of this rule and all other applicable performance standards of the Act and the reclamation contract.'' Subsection 3.14.f is added to read as follows: ``All persons conducting removal of abandoned coal disposal piles under a reclamation contract shall have on site, a copy of the written approval for such activities issued by the Director.''

      In its submittal, the WVDEP stated that changes to Section 3 will allow the reclamation of coal refuse sites by a reclamation contract that normally does not require any state expenditure. The WVDEP stated that it believes that totally removing a refuse pile constitutes reclamation. Further the WVDEP stated that the amendments are consistent with the change to Chapter 22, Article 3 Section 28 of the Code of West Virginia which occurred in the last legislative session.

    3. CSR 38-2-3.32 Findings--Permit Issuance

      Subsection 3.32.d.12 is amended by deleting the reference to subsection 14.16, and adding in its place a reference to subsection 24. In addition, the words ``and prior to August 3, 1977'' are deleted and replaced by the words, ``would be eligible for expenditures under Section 4, Article 2 of Chapter 22.

      Subsection 3.32.g is added to read as follows. ``The prohibition of subsection c. shall not apply to a permit application due to any violation resulting from an unanticipated event or condition at a surface mine eligible for remining held by the applicant.''

      In its submittal, the WVDEP stated that this change is due to a new Federal definition of ``remining'' which basically states that any site eligible for abandoned mined lands funding is also eligible for remining.

    4. CSR 18-2-14.14.a.1 Disposal of Excess Spoil

      This subsection is amended by adding language to allow excess spoil to be deposited on abandoned mine lands and/or forfeited mine lands under a

      [[Page 32634]]

      reclamation contract pursuant to Section 28 of the Act and this rule. The new language further provides that it is the permittee's responsibility to obtain right of entry and any necessary approvals from the appropriate environmental agencies or other agencies.

      The WVDEP stated that these changes will allow the director to issue no-cost reclamation contracts to a permittee to reclaim abandoned and forfeited sites.

    5. CSR 38-2-14.16 Is Being Moved to New Section CSR 38-2-24

    6. CSR 38-2-14.17 Is Redesignated as CSR 38-2-14.16

    7. CSR 38-2-14-18 Is Redesignated as CSR 38-2-14.17

    8. CSR 38-1-14.19 Is Redesignated as CSR 38-2-14.18

      Old subsection 14.19.d is deleted because it conflicts with CSR 38- 2-8.2.e that was added during the last legislative session.

    9. CSR 38-2-22.5.1 Removal of Abandoned Coal Refuse Piles

      Subsection 22.51 is amended by deleting the words ``special permit'' and adding in their place the words ``reclamation contract.''

      The WVDEP explained that the changes to Section 3 will allow the reclamation of coal refuse sites by a reclamation contract that normally does not require any state expenditure.

    10. CSR 38-2-23 Special Authorization for Coal Extraction as an Incidental Part of Development of Land for Commercial, Residential, or Civic Use

      This entire section is new language. This section would allow special authorization for coal extraction as an incidental part of development of land for commercial, residential, industrial, or civic use. The section contains provisions for applicant information, site development and sampling information; provisions for approval of Notice of Intent for coal extraction as an incidental part of development of land for commercial, residential, or civic use; performance standards; expiration of a notice of intent coal extraction as an incidental part of development; escrow release; notice on site; and public records.

      The WVDEP explained that the new language is intended to implement new code provisions that allow the director to give special authorization for coal extraction as an incidental part of development of land for commercial, residential, industrial, or civic use.

    11. CSR 38-2-24 Performance Standards Applicable Only to Remining Operations

      This entire section is new. However, subsection 24.1 was previously 14.16; subsection 24.2.a was previously 14.16.m; subsection 24.3 was previously 14.16.n; subsection 24.2.b is new language; and subsection 24.4 is new language.

      Subsection 24.1 provides for backfilling, remining, and grading of previously mined areas. Subsection 24.2 provides for revegetation of coal remining operations. Subsection 24.3 provides for water quality of coal remining operations. Subsection 24.4 provides the requirements for release of bonds for coal remining operations.

      The WVDEP stated that subsection 24.2.b is due to a new Federal remining regulation which basically states that successful revegetation shall be for a period of not less than two growing seasons. Subsection 24.4 will allow for release of the land reclamation bond if the post- remining water quality discharging from the site is equal to or better than pre-remining water quality.

  3. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now seeking comments on the proposed amendments to the West Virginia program that were submitted on May 11, 1998. Comments should address whether the proposed amendments satisfy the applicable program approval criteria of 30 CFR 732.15. If the amendments are deemed adequate, they will become part of the West Virginia program.

    Written Comments

    Written comments should be specific, pertain only to the issues 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 testify at the public hearing should contact the person listed under FOR FURTHER INFORMATION CONTACT by the close of business on June 30, 1998. If no one requests an opportunity to testify at the public hearing by that date, 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 remarks and appropriate questions.

    The public hearing will continue on the specified date until all persons scheduled to testify have been heard. Persons in the audience who have not been scheduled to testify, and who wish to do so, will be heard following those scheduled. The hearing will end after all persons scheduled to testify and persons present in the audience who wish to testify have been heard.

    Public Meeting

    If only one person or group requests to testify 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 clarification, removal of the required amendment, or change in the effective dates of the approval may request a meeting at the OSM Charleston Field Office listed under ADDRESSES 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 a part of the Administrative Record.

  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.

    [[Page 32635]]

    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 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: June 4, 1998. Tim L. Dieringer, Acting Regional Director, Appalachian Regional Coordinating Center.

    [FR Doc. 98-15761Filed6-12-98; 8:45 am]

    BILLING CODE 4310-05-M

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