[Federal Register Volume 63, Number 134 (Tuesday, July 14, 1998)]
[Rules and Regulations]
[Pages 37774-37777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18738]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-078-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving the clarification of three final rule
decisions, the removal of a required amendment, and the vacating of its
retroactive approval of amendments 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 clarifications concern West Virginia statutes pertaining
to administrative appeals and the State Environmental Quality Board,
and the required amendment pertains to termination of jurisdiction.
These actions are intended to comply with a settlement agreement
reached in West Virginia Mining and Reclamation Association (WVMRA) v.
Babbitt, No. 2: 96-0371 (S.D. W.Va.).
EFFECTIVE DATE: July 14, 1998.
FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Charleston Field Office, Telephone:
(304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. 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.
II. Submission of the Amendment
In a series of three letters dated June 28, 1993, and July 30, 1993
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West
Virginia Division of Environmental Protection (WVDEP) submitted an
amendment to its approved permanent regulatory program that included
numerous revisions to the West Virginia Surface Coal Mining and
Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations
(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on
durable rock fills on August 16, 1995, (60 FR 42437-42443) and
approved, with exceptions, the proposed revisions on bonding on October
4, 1995, (60 FR 51900-51918). OSM approved, with exceptions, the
remaining amendments on February 21, 1996, (61 FR 6511-6537). See 30
CFR 948.15 for the provisions that were partially approved by OSM. See
30 CFR 948.16 for required amendments.
On April 18, 1996, the WVMRA, the West Virginia Coal Association,
and the Tri-State Coal Operators Association, Inc. filed an appeal,
pursuant to section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1),
challenging certain OSM decisions contained in the February 21, 1996,
Federal Register Notice, including the decision to make approval of the
amendment retroactive. (Administrative Record Number WV-1027). On
October 29, 1997, the parties reached a settlement agreement with
respect to six of the seven counts contained in the above referenced
case. (Administrative Record Number WV-1077). The other count,
pertaining to the use of passive treatment systems after final bond
release, was decided by the United States District Court for the
Southern District of West Virginia in OSM's favor. See WVMRA v.
Babbitt, No. 2: 96-0371 (S.D. W.Va. July 11, 1997) (Administrative
Record Number WV-1072). OSM proposed this rulemaking in order that it
may fulfill its obligations with respect to five of the six counts of
the appeal which are addressed by settlement agreement. The remaining
count addressed in the settlement agreement, pertaining to the
windrowing of materials on the downslope in steep slope areas, is the
subject of another proposed rulemaking, announced in the June 10, 1997,
Federal Register. See 62 FR 31543, 31545.
The proposed rulemaking was published in the February 23, 1998,
Federal Register (63 FR 8891). No one requested an opportunity to speak
at a public hearing, so none was held.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's
[[Page 37775]]
findings concerning the clarification of three final rule decisions,
the removal of a required amendment, and the vacating of its
retroactive approval of amendments to the West Virginia permanent
regulatory program.
1. The Clarifications
Sec. 22B-1-7(d) Administrative Appeals
As announced in the Federal Register on February 21, 1996 (61 FR at
6516, 6536), OSM did not approve a language at Sec. 22B-1-7(d)
concerning allowing temporary relief where the appellant demonstrates
that the executed decision appealed from will result in the appellant
suffering an ``unjust hardship.'' OSM stated that the provision was
disapproved because the exception is inconsistent with SMCRA section
514(d) and 525(c). Further, OSM required, at 30 CFR 948.16(nnn), that
Sec. 22B-1-7(d) be amended to be consistent with SMCRA sections 514(d)
and 525(c). In accordance with the settlement agreement in WVMRA v.
Babbitt, supra, OSM proposed to clarify its February 21, 1996, decision
by stating that Sec. 22B-1-7(d) is not approved only to the extent that
it includes unjust hardship as a criterion to support the granting of
temporary relief from an order or other decision issued under Chapter
22, Article 3 of the West Virginia Code, which is the West Virginia
counterpart to SMCRA. OSM also proposed to revise the required
amendment at 30 CFR 948.16(nnn) to require West Virginia to amend its
program to remove unjust hardship as a criterion to support the
granting of temporary relief from an order or other decision issued
under Chapter 22, Article 3 of the West Virginia Code. The Director now
adopts this proposal, and is, therefore, not approving Sec. 22B-1-7(d)
only to the extent that it includes unjust hardship as a criterion to
support the granting of temporary relief from an order or other
decision issued under Chapter 22, Article 3 of the West Virginia Code,
which is the West Virginia counterpart to SMCRA. The Director is also
revising the required amendment at 30 CFR 948.16(nnn) to require West
Virginia to amend its program to remove unjust hardship as a criterion
to support the granting of temporary relief from an order or other
decision issued under Chapter 22, Article 3 of the West Virginia Code.
Sec. 22B-1-7(h) Administrative Appeals
As announced in the Federal Register on February 21, 1996 (61 FR at
6516, 6536), OSM did not approve language at Sec. 22B-1-7(h) to the
extent that the provisions would allow the West Virginia Surface Mining
Board to decline to order an operator to treat or control discharges
due to economic considerations. In addition, OSM required, at 30 CFR
948.16(ooo), that the State further amend Sec. 22B-1-7(h) to be no less
stringent than SMCRA section 515(b)(10) and no less effective than the
Federal regulations at 30 CFR 816.42 by requiring that discharges be
controlled or treated without regard to economic feasibility. In
accordance with the settlement agreement in WVMR v. Babbitt, supra. OSM
proposed to clarify that Sec. 22B-1-7(h) is not approved only to the
extent that it references Article 3, Chapter 22 of the West Virginia
Code. OSM also proposed to revise the required amendment at 30 CFR
948.16(ooo) to require West Virginia to mend its program by removing
the reference, in Sec. 22B-1-7(h), to Article 3, Chapter 22. The
Director is now adopting this proposal and is, therefore, not approving
Sec. 22B-1-7(h) only to the extent that it references Article 3,
Chapter 22 of the West Virginia Code. The Director is also revising the
required amendment at 30 CFR 948.16(ooo)--to require West Virginia to
amend its program by removing the reference, in Sec. 22B-1-7(h), to
Article 3, Chapter 22.
Sec. 22B-3-4 Environmental Quality Board
As announced in the Federal Register on February 21, 1996 (61 FR at
6517), OSM approved the provisions at Sec. 22B-3-4 concerning the
Environmental Quality Board's rulemaking authority. Under the State's
S.B. 287, the Board is authorized, with certain restrictions, to
promulgate procedural rules granting site-specific variances for water
quality standards for coal remining operations. In approving the
provision, OSM also stated that any such procedural rules that grant
variances must be submitted to OMS for approval prior to their
implementation.
In accordance with the settlement agreement in WVMRA v. Babbitt,
supra, OSM proposed to clarify that it does not have approval authority
over rules developed by the Environmental Quality Board under the
authority of the Clean Water Act. The Director is now adopting this
proposal and finds, therefore, that the Environmental Quality Board is
not required to submit to OSM for approval procedural rules for the
implementation of site specific variances for water quality standards
for remining operations.
2. Amendment Findings Revisions
CSR 38-2-1.2(c)(1) Termination of Jurisdiction
As announced in the Federal Register on February 21, 1996 (61 FR at
6517, 6536), OSM found Sec. 38-2-1.2(c)(1) to be less effective than
the Federal regulations at 30 CFR 700.11(d)(1)(i) to the extent that
subsection (c)(1) does not require compliance with the Federal initial
program regulations at Subchapter B or the West Virginia permanent
regulatory program as a prerequisite to the termination of jurisdiction
over an initial program site. In addition, OSM required, at 30 CFR
948.16(ppp), that the State further amend subsection (c)(1) to require
compliance with the Federal initial program regulations at Subchapter B
or the West Virginia permanent regulatory program regulations as a
prerequisite to the termination of jurisdiction over an initial program
site.
By letter dated December 12, 1996 (Administrative Record Number WV-
1052), the West Virginia Division of Environmental Protection (WVDEP)
stated its commitment to require that initial program sites in West
Virginia meet the West Virginia program's permanent program
requirements as a precondition of the termination of regulatory
jurisdiction over such sites.
In recognition of the acknowledgment contained in the December 12,
1996, WVDEP letter, and in accordance with the settlement agreement in
WVMRA v. Babbitt, supra, OSM proposed to accept the WVDEP's December
12, 1996 letter as satisfying the requirements of 30 CFR
700.11(d)(1)(i), and proposed to delete the required amendment codified
at 30 CFR 948.16(ppp). The Director is now adopting this proposal and,
therefore, is accepting the WVDEP's December 12, 1996 letter as
satisfying the requirements of 30 CFR 700.11(d)(1)(i). The Director is
also removing the required amendment at 30 CFR 948.16(ppp).
3. Vacating Retroactive Approval of Amendments
In the February 21, 1996, Federal Register (61 FR 6533), OSM stated
that with respect to laws and regulations being approved in the notice,
the OSM was making the effective date of the approval retroactive to
the date upon which each provision took effect in West Virginia for
purposes of State law. However, as stated in the settlement agreement
in WVMRA v. Babbitt, supra, OSM has agreed to vacate the retroactive
effect of its approval of the program amendment which was the subject
of the February 21, 1996, Federal Register
[[Page 37776]]
notice. Therefore, OSM announced its intention to vacate the
retroactive approval of the amendments discussed and approved in the
February 21, 1996, Federal Register notice, 61 FR 6511, 6535. In
addition, OSM proposed to change the effective dates of all the
amendments approved in the February 21, 1996 notice to February 21,
1996.
Accordingly, the Director is hereby vacating the retroactive
approval of the amendments discussed and approved in the February 21,
1996, Federal Register notice 61 FR 6511, 6535. Furthermore, the
Director is changing the effective dates of all the amendments approved
in the February 21, 1996 notice to February 21, 1996.
The Director finds that the clarifications, amendment findings
revisions, and vacation of the retroactive approval of the previously
approved amendments do not render the West Virginia program less
effective, and are hereby approved.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),
comments were solicited from various interested Federal agencies. The
Department of the Army, U.S. Army Corps of Engineers responded and
stated that the proposed dispositions are satisfactory to the agency.
The U.S. Department of Labor, Mine Safety and Health Administration
(MSHA) responded and stated that the agency did not find any statements
that would conflict with MSHA's regulations or policies.
Public Comments
The following comments were received in response to the request for
public comments. The West Virginia Coal Association (WVCA) stated that
events have occurred since OSM's approval of the West Virginia Code at
Sec. 22-3-8(6)(B) concerning compliance with the State's workers'
compensation provisions at Sec. 23-2-5. Sec. 22-3-8(6)(B) states that
``[i]t is a requirement of this article [article 3, chapter 22, which
is the West Virginia counterpart to SMCRA] that each operator maintain
continued compliance with the provisions of section five, article two,
chapter twenty-three of this code [the requirement to pay workers'
compensation premiums] and provide proof of compliance to the director
on an annual basis.'' Specifically, the commenter stated that
interpretations of Sec. 22-3-8(6)(B) may improperly (1) create bond
forfeitures that cannot be reclaimed by the State's special reclamation
fund; (2) allow reclamation bonds to be used for purposes other than
reclamation of mining sites; and (3) allows citizens' suits that would
affect limits imposed under the State's workers' compensation laws.
Accordingly, the WVCA demanded that OSM either disapprove Sec. 22-3-
8(6)(B) or approve it expressly subject to the interpretation given to
the provision by the WVDEP. That interpretation is discussed below.
The WVDEP stated that its primary concern is that implementation of
Sec. 22-3-8(6)(B) not put any additional pressure on the bonding funds
available to WVDEP for completing reclamation. WVDEP stated that, while
it is more than willing to screen applicants for compliance with the
workers' compensation laws and thereafter take reasonable action to
ensure that they subsequently maintain compliance, the WVDEP cannot in
doing so jeopardize its primary purposes to ensure that the environment
is protected and reclamation is accomplished.
The WVDEP further stated that to ensure that Sec. 22-3-8(6)(B) is
not interpreted or applied in such a fashion as to jeopardize
environmental protection and the reclamation bonding program, WVDEP
issued a policy on June 7, 1995, concerning enforcement procedures for
companies in default with workers' compensation. By that policy, WVDEP
interprets Sec. 22-3-8(6)(B) to allow permittees to abate violations
issued for the workers' compensation defaults of their contractors
either by demonstrating that the contractor has returned to good
standing or by taking action to terminate the operator approval. WVDEP
stated that it recognizes that any interpretations of Sec. 22-3-8(6)(B)
which would impose obligations on permittees or operators for workers'
compensation obligations incurred prior to the effective date of the
statute could compromise the Special Reclamation Fund, which is used to
reclaim minesites for which the proceeds for forfeited performance
bonds are inadequate to achieve full reclamation.
To ensure an appropriate application of Sec. 22-3-8(6)(B) while
maintaining the consistency of the State surface mining program with
SMCRA, and in accordance with its June 7, 1995, policy, the WVDEP
interprets Sec. 22-3-8(6)(B) as:
(1) Prohibiting the issuance of both new permits and operator
approvals (known as operator reassignments in West Virginia) to those
applicants for which the Workers' Compensation Division advises have
not complied with Sec. 23-2-5;
(2) In cases involving permittees that utilize contractors,
enabling DEP to issue a notice of violation to a permittee for its
contractors' failure to comply with the workers' compensation
provisions of W. Va. Code Sec. 23-2-5, and allowing the permittee to
abate the violation either by demonstrating that the contractor has
returned a status of good standing with the Workers' Compensation
Division or by submitting the paperwork necessary to allow DEP to
rescind or terminate the operator approval (operator reassignment); and
(3) To the extent it imposes obligations on permittees and
operators to maintain compliance with W. Va. Code Sec. 23-2-5, it does
so only to the extent that the obligation to pay premiums, submit
reports, etc. first arose after the effective date of W. Va. Code
Sec. 22-3-8(6)(B).
The Director does not believe that the WVCA's comments are germane
to this rulemaking, since approval of Sec. 22-3-8(6)(A) and (B) was
previously announced in the February 21, 1996, Federal Register. 61 FR
6511. In his approval, the Director noted that ``as provided in
paragraph (h) [Sec. 22-3-8(6)], the State proposes to make compliance
with the Workers' Compensation Program a requirement of permit
approval.'' 61 FR at 6514. The basis for the Director's approval is not
changed in this rulemaking, since the substance of Sec. 22-3-8(6) is
not at issue here. The Director notes, however, that the effective date
of his approval of Sec. 22-3-8(6) is now changed to February 21, 1996.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). OSM
has determined that the proposed provision does not pertain to air and
water quality standards. Therefore, EPA concurrence is not required.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments from
the EPA on the proposed amendment. EPA did not provide any comments in
response to the request.
V. Director's Decision
Based on the findings above the Director is approving the
clarification of the three final rule decisions, the removal of the
required amendment, and the vacating of its February 21, 1996,
retroactive approval of
[[Page 37777]]
amendments to the West Virginia program.
The Federal regulations at 30 CFR 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision.
VI. 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 determination as to whether this rule would have a
significant economic impact, the Department relied upon the data for
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year or any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 28, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 948--WEST VIRGINIA
1. The authority citation for part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
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Original amendment submission Date of final Citation/
date publication description
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* * * * *
February 23, 1998............... July 14, 1998..... WV Code Sections
22B-1-7(d), 7(h);
22B-3-4. WV
Regulations CSR
38-2-1.2(c)(1).
Vacating of
retroactive
approval
published on
February 21,
1996.
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3. Section 948.16 is amended by removing and reserving paragraph
(ppp), and by revising paragraphs (nnn) and (ooo) to read as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(nnn) By September 14, 1998, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise Section 22B-1-7(d) to
remove unjust hardship as a criterion to support the granting of
temporary relief from an order or other decision issued under Chapter
22, Article 3 of the West Virginia Code.
(ooo) By September 14, 1998, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise Section 22B-1-7(h) by
removing reference to Article 3, Chapter 22.
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[FR Doc. 98-18738 Filed 7-13-98; 8:45 am]
BILLING CODE 4310-05-M