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West Virginia Regulatory Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 31, 2003 (Volume 68, Number 147)]
[Proposed Rules]
[Page 44910-44913]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy03-26]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-091-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; reopening of public comment period.
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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: (304) 347-7158. E-mail:
chfo@osmre.gov.
West Virginia Department of Environmental Protection, 10 McJunkin
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510.
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: (304) 291-4004. (By Appointment Only)
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. Internet:
chfo@osmre.gov.
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, ``* * *
[[Page 44911]]
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
[[Page 44912]]
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 (304) 347-7158.
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
[[Page 44913]]
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.
[FR Doc. 03-19436 Filed 7-30-03; 8:45 am]
BILLING CODE 4310-05-P