[Federal Register Volume 64, Number 218 (Friday, November 12, 1999)]
[Rules and Regulations]
[Pages 61506-61507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29581]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-074-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; correction.

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SUMMARY: This notice corrects OSM's decision on an amendment submitted 
by the State of West Virginia as a modification to its permanent 
regulatory program under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). OSM published its decision on the provision in the 
October 4, 1995, Federal Register (60 FR 51900). The decision being 
corrected concerns bond forfeiture, and specifically concerns the 
liability for reclamation costs that are in excess of the amount of 
bond forfeited. This correction is intended to comply with the decision 
of the United States District Court for the Southern District of West 
Virginia in Cat Run Coal Co. v. Babbitt, No. 2: 95-1063 (S.D. W.Va. 
Aug. 8, 1996).

EFFECTIVE DATE: November 12, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

Background

    In a series of three letters dated June 28, 1993, and July 30, 1993 
(Administrative Record Numbers WV-888, WV-889, and WV-893), the West 
Virginia Division of Environmental Protection (WVDEP) submitted an 
amendment to its approved permanent regulatory program. The amendment 
included numerous revisions to the West Virginia Surface Coal Mining 
and Reclamation Act, and the West Virginia Surface Mining Reclamation 
Regulations (CSR 38-2-1 et seq.). OSM grouped the proposed revisions 
that concern reclamation bonding into one amendment that was approved, 
with exceptions, in the October 4, 1995, Federal Register (60 FR 
51900). In that notice, OSM approved an amendment to CSR 38-2-12.4.e. 
concerning the forfeiture of reclamation bonds. Specifically, 
subsection 12.4.e. concerns the liability for reclamation costs that 
are in excess of the amount of bond forfeited. The provision that OSM 
approved provided, in part, that ``[t]he operator, permittee, or other 
responsible party shall be liable for all costs in excess of the amount 
forfeited.''

Need for Correction

    On August 8, 1996, the Court in Cat Run Coal Co. v. Babbitt vacated 
OSM's decision to approve CSR 38-2-12.4.e. Specifically, the Court 
vacated OSM's approval of the phrase ``other responsible party,'' 
because it determined that the approval violated the notice and comment 
requirements of the Administrative Procedure Act (APA), 5 U.S.C. 500 et 
seq., as well as the APA requirement to ``adopt a concise general 
statement of * * * [the rule's] basis and purpose.'' Cat Run, Slip op. 
at 9 through 15. The Court also found that OSM failed to ascertain the 
precise meaning and scope of the term ``other responsible parties,'' 
and that, as a result, could not reach a reasoned and informed 
conclusion as to whether the proposal was consistent with SMCRA. Slip 
op. at 12 through 14. Finally, the Court found that CSR 38-2.12.4.e. 
was inconsistent with SMCRA's objective of internalizing the liability 
for reclamation of surface coal mining operations, because it purported 
to hold parties other than surface coal mining permittees and operators 
liable for reclamation costs in excess of site specific reclamation 
performance bond

[[Page 61507]]

amounts. Slip op. at 15 through 20. Consequently, we are amending our 
approval of CSR 38-2-12.4.e. to show that the phrase ``other 
responsible party'' is not approved. In addition, we are requiring that 
CSR 38-2-12.4.e. be amended to delete the phrase ``other responsible 
party.''
    The Federal regulations at 30 CFR 948.15 codifying decisions 
concerning the West Virginia program are being amended to implement 
this revised decision. After the October 4, 1995, publication of the 
final rule notice containing our approval of CSR 38-2-12.4.e., the 
format of the codification section at 30 CFR 948.15 was changed from 
individual paragraphs to a summary table. Therefore, the correction 
will have the following effect in the summary table at 30 CFR 948.15. 
In the table at 30 CFR 948.15, for the ``Original amendment submission 
date'' of June 28, 1993, and ``date of final publication'' of October 
4, 1995 and February 21, 1996, the ``Citation/description'' section of 
the approved provisions will be revised to exclude from the approval of 
CSR 38-2-12.4.e. the phrase ``other responsible party.''

Administrative Procedure Act

    The Administrative Procedure Act provides exceptions to its notice 
and public comment procedures when an agency finds that there is good 
cause for dispensing with such procedures on the basis that they are 
impracticable, unnecessary, or contrary to the public interest. We have 
determined that, under 5 U.S.C. 553(b)(B), good cause exists for 
dispensing with the notice and public comment procedures in this case. 
Good cause exists because this rule merely removes regulations already 
declared void by the Court. Therefore, opportunity for prior comment is 
unnecessary and we are issuing this regulation as a final rule.
    In addition, under 5 U.S.C. 553(d)(3), we find good cause for 
dispensing with the 30-day delay in the effective date of this final 
rule because we are merely removing a provision already declared void 
by the court.

    Dated: October 22, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 948 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 revising the entry 
with the ``Date of Final Publication'' of October 4, 1995, February 21, 
1996, to read as follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
June 28, 1993.................  October 4, 1995,   WV Code 22-1-4
                                 February 21,       through -8; 22-2; 22-
                                 1996.              3-3, -5, -7, -8, -9,
                                                    a, -11(a), (g), -12,
                                                    -13, -15, -17, -18,
                                                    19, -22, -26, -28, -
                                                    40; 22B-1-4 through
                                                    12; 22B-3-4; 22B-4;
                                                    CSR 38-2-1.2, -2, -
                                                    3.1(o), .4, .6, .7,
                                                    .8, .12, .14, .15,
                                                    .16, .25, .26,
                                                    .27(a), .28, .29,
                                                    .30, .31(a), .32,
                                                    .33, .34, -4, .1(a),
                                                    .2 through .12, -
                                                    5.2, .4, .5, -6,
                                                    .3(b), .6, .8, -8.1,-
                                                    9, -11.1 through .7,
                                                    -12.2, .3, .4(a),
                                                    (2)(B), (c) through
                                                    (e) except the words
                                                    ``other responsible
                                                    party'' at (e) are
                                                    not approved, .5, -
                                                    13, -14.5, .8, .11,
                                                    .12, .14, .15, .17,
                                                    .18, .19, -15.2, -
                                                    16.2, -17, -18.3, -
                                                    20.1, .2, .4 through
                                                    .7, -22; 38-2C-4, -
                                                    5, -8.2, -10.1, -
                                                    11.1; 38-2D-4.4(b),
                                                    6.3(a), -8.7(a).
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

    3. Section 948.16 is amended by adding new paragraph (jjjj), to 
read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (jjjj) By January 11, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to remove the words ``other 
responsible party'' at CSR 38-2-12.4.e.

[FR Doc. 99-29581 Filed 11-10-99; 8:45 am]
BILLING CODE 4310-05-P