[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Rules and Regulations]
[Pages 67446-67454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31612]



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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 948



West Virginia Regulatory Program; Final Rule and Proposed Rule

  Federal Register / Vol. 66 , No. 249 / Friday, December 28, 2001 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-093-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving a proposed amendment to the West Virginia surface 
coal mining regulatory program (the West Virginia program) authorized 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). The program amendment consists of changes to the Code of West 
Virginia (W. Va. Code) as contained in Enrolled Senate Bill 5003. The 
amendment creates a Special Reclamation Fund Advisory Council and 
increases the special reclamation tax rate on coal to provide 
additional revenues for the West Virginia Special Reclamation Fund.

EFFECTIVE DATE: December 28, 2001.

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:
I. Background on the West Virginia Program
II. Background on West Virginia's Alternative Bonding System
III. Submission of the Amendment
IV. OSM's Findings
V. Summary and Disposition of Comments
VI. OSM's Decision
VII. 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, ``* * * a 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. Background on West Virginia's Alternative Bonding System (ABS)

    On January 21, 1981, the Secretary conditionally approved West 
Virginia's ABS. The ABS has two basic components: the site-specific or 
incremental bond posted by the permittee and the Special Reclamation 
Fund (the Fund), comprised of a special reclamation tax, civil penalty 
assessments, and interest earned on the revenues, which is intended to 
cover any reclamation costs in excess of the site-specific or 
incremental bond.
    At the time of approval, the Secretary required that the State 
provide an actuarial study of the Fund demonstrating that the amount of 
money going into the Fund would cover the demands to be placed on it, 
along with any program changes needed to redress any deficiencies 
identified by the actuarial study (46 FR 5956).
    The State submitted an actuarial study on October 29, 1982 
(Administrative Record No. WV-456). The study concluded that the Fund 
was solvent, in part because it contained a funding mechanism (the 
special reclamation tax) to provide for the cost of future reclamation. 
On March 1, 1983 (41 FR 8447), we subsequently found that the State's 
alternative bonding provisions were in accordance with section 509(c) 
of SMCRA and the Federal criteria for approval of alternative bonding 
systems at 30 CFR 806.11(b), which has since been recodified as 30 CFR 
800.11(e). Consequently, we removed the condition (25) relating to our 
approval of the State's ABS.
    By 1988-89, our oversight evaluations indicated that the Fund 
lacked sufficient revenue to reclaim all outstanding bond forfeiture 
sites. In addition, the cash balance in the Fund ceased earning 
interest because of losses suffered by the State's Consolidated 
Investment Fund. On October 1, 1991, we notified the State, pursuant to 
30 CFR 732.17(c) and (e), that a program amendment was necessary 
because the Fund no longer met the requirements of 30 CFR 800.11(e).
    In a series of amendments beginning in 1993, West Virginia revised 
portions of its program in an attempt to resolve some of our concerns. 
For example, the State increased its special reclamation tax from one 
cent to three cents per ton of coal mined and adopted site-specific 
bonding regulations. In addition, Deloitte and Touche, an accounting 
and consulting company, completed an actuarial study of the Fund in 
March 1993. The study concluded that the Fund had an accrual deficit 
position as of June 30, 1992, but that the Fund would realize gradual 
improvement over the next five years.
    On October 4, 1995 (60 FR 51900), we announced our partial approval 
of the State's amendments. However, as specified in 30 CFR 948.16 
(jjj), (kkk), and (lll), we also required the State to amend certain 
statutory provisions to fully eliminate the deficit in the Special 
Reclamation Fund and to provide for treatment of pollutional discharges 
from bond forfeiture sites.
    OSM and the State conducted additional studies that were completed 
in September 1997 and June 1999 to assess the financial condition of 
the Fund. The studies found that the Fund could eventually be solvent 
if its responsibilities were limited to land reclamation. However, the 
studies also determined that treatment of pollutional discharges from 
forfeited sites required additional revenue.
    By letter dated September 29, 2000, we informed the West Virginia 
Department of Environmental Protection (WVDEP) that Federal corrective 
action would be taken, unless the Legislature adopted the necessary 
changes to the Fund to resolve the identified deficiencies 
(Administrative Record No. WV-1181). However, the Legislature adjourned 
without enacting the proposed changes.
    On April 18, 2001, WVDEP requested additional time to develop and 
obtain approval of statutory and regulatory changes to the State's 
bonding provisions (Administrative Record No. WV-1206). In addition, 
WVDEP requested that we conduct an informal review of a report entitled 
``The Mountain State Clean Water Trust Fund.'' Under a plan that was 
based on the report, WVDEP intended to bifurcate the Fund into two 
distinct accounts, one for land reclamation and one for water 
treatment.
    In a letter dated June 29, 2001, we initiated corrective action 
under 30 CFR 733.12(b). In that letter, which is known as a Part 733 
notification, we notified the State that it must initiate certain

[[Page 67447]]

remedial measures by July 27, 2001, to satisfy the outstanding required 
amendments at 30 CFR 948.16 (kkk), (jjj), and (lll) and that it must 
submit the necessary, fully-enacted and adopted statutory and 
regulatory revisions no later than 45 days after the end of the 2002 
regular session of the Legislature (Administrative Record No. WV-1218). 
As stated in the letter, if West Virginia failed to take these 
measures, we intended to recommend that the Secretary partially 
withdraw approval of the State program and implement a partial Federal 
regulatory program.
    On July 27, 2001, WVDEP submitted draft statutory and regulatory 
revisions in response to our Part 733 notification (Administrative 
Record No. WV-1231). The draft changes are commonly referred to as the 
20/20 Plan.
    By e-mail message dated August 8, 2001, WVDEP provided us with 
additional draft legislative changes for informal review 
(Administrative Record No. WV-1233A). The proposed revisions are 
commonly called the 7-Up Plan.
    On August 9 and August 28, 2001, we provided WVDEP our informal 
review of the proposed statutory revisions that were submitted on 
August 8 (Administrative Record Nos. WV-1233 and WV-1235). Under the 
draft legislation, the special reclamation tax would be increased from 
3 cents to 14 cents per ton of clean coal mined for 39 months and 
reduced to 7 cents thereafter with biennial review by an advisory 
council.
    By letter dated August 13, 2001, WVDEP provided us with a schedule 
for submitting statutory and regulatory revisions to the Legislature in 
response to our Part 733 notification (Administrative Record No. WV-
1234). The letter specified that the State would formally submit the 
program amendment to us by April 30, 2002. The letter also indicated 
that the statutory changes could be presented to a special session of 
the Legislature before that date.
    We released our financial analysis of the State's draft legislation 
on September 7, 2001 (Administrative Record No. WV-1236). In that 
report, we concluded that the proposal would generate sufficient 
revenues for about 9 years, but future adjustments would have to be 
made to meet long-term needs of the Fund.
    On September 15, 2001, a special session of the West Virginia 
Legislature passed Senate Bill 5003, which is intended to eliminate the 
deficit in the Fund and provide for water treatment at bond forfeiture 
sites. The Governor of West Virginia (Governor) signed Enrolled Senate 
Bill 5003 on October 4, 2001. The effective date of the bill is October 
4, 2001, but none of the provisions could be implemented without OSM 
approval. WVDEP submitted the legislation as a program amendment on 
September 24, 2001 (Administrative Record No. WV-1238).

III. Submission of the Amendment

    By letter dated September 17, 2001 (Administrative Record Number 
WV-1237), the WVDEP notified us of the legislation that was approved 
during a special session of the West Virginia Legislature. By letter 
dated September 24, 2001 (Administrative Record Number WV-1238), the 
WVDEP formally submitted the legislation as a proposed program 
amendment.
    As discussed in Section II of this preamble, the amendment, 
consisting of statutory revisions, was submitted in response to our 
Part 733 notification of June 29, 2001, and certain outstanding 
required program amendments. In accordance with our Part 733 
notification, the State informed us on November 30, 2001, that it is 
developing regulatory changes that will be submitted to the Legislature 
during the upcoming regular legislative session that begins on January 
9, 2002 (Administrative Record Number WV-1253).
    The amendment being considered today consists only of changes to 
the W.Va. Code, as amended by Enrolled Senate Bill 5003. The amendment 
adds W.Va. Code section 22-1-17, which establishes the Special 
Reclamation Fund Advisory Council (Advisory Council). The amendment 
also revises W.Va. Code 22-3-11 by increasing the special reclamation 
tax rate and revises W.Va. Code 22-3-12 by deleting certain site-
specific bonding provisions.
    We announced receipt of the proposed amendment on October 24, 2001 
(66 FR 53749). In the same document, we opened the public comment 
period and provided an opportunity for a public hearing or meeting on 
the adequacy of the amendment (Administrative Record Number WV-1243). 
While the amendment consists of Enrolled Senate Bill 5003, we also made 
Engrossed Senate Bill 5003 available for public review and comment. 
With a few exceptions, Engrossed Senate Bill 5003 is substantively 
identical to Enrolled Senate Bill 5003. However, the engrossed bill 
clearly shows, via underscoring and strikethroughs, most of the 
statutory language that has been added to or deleted from the W.Va. 
Code as a result of the enactment of Senate Bill 5003. We quoted the 
new and revised provisions in their entirety in the October 24, 2001, 
Federal Register notice in which we asked for public comment on the 
amendment. We did not hold a public hearing or meeting on the amendment 
because no one requested one. The public comment period closed on 
November 23, 2001.
    We received comments on this amendment from the U.S. Department of 
Labor, Mine Safety and Health Administration, and the U.S. 
Environmental Protection Agency. In addition, we received comments from 
the West Virginia Highlands Conservancy (WVHC); Morgan Worldwide Mining 
Consultants, Inc., consultant for the WVHC; and the West Virginia Coal 
Association, Inc.
    On November 6, the WVHC requested that the comment period on the 
amendment be extended through December 14, 2001 (Administrative Record 
No. WV-1245). On November 9, 2001, we denied the request 
(Administrative Record Number WV-1245). See Section V., ``Public 
Comments'' Item 4, ``Alleged abuse of discretion by failing to grant an 
extension to the comment period,'' below.

IV. OSM's Findings

    This section contains our findings on the amendment.
    As stated above in Section II, we notified the State in accordance 
with 30 CFR 733.12(b) that it must submit fully-enacted and adopted 
statutory and regulatory revisions to fix its ABS within 45 days after 
the close of the 2002 regular legislative session. We estimate this 
deadline will occur about April 23, 2002. This rule announces our 
decision to approve the amendment, based on the findings in this 
section of the preamble. However, because of the complexity of the 
issues concerning the long-term solvency of the ABS, we are deferring 
decision on the broader issue of whether the State has fully fixed its 
ABS. We will use the time remaining between now and the deadline 
mentioned above to conduct further analysis and to allow all interested 
parties the necessary time to complete a comprehensive review. We will 
publish a separate notice in the Federal Register soliciting further 
comments on the effect these amendments have on the ABS and whether 
additional measures are needed to restore full consistency with Federal 
ABS requirements.
    Under 30 CFR 732.17(h)(10), we must use the applicable criteria in 
30 CFR 732.15 in approving or disapproving State program amendments. 
Because this amendment pertains only to performance bonds, the 
applicable

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criteria are those in 30 CFR 732.15(b)(6). That paragraph provides that 
the State regulatory authority must have the authority under State laws 
and regulations--and the State program must include provisions--to 
``[i]mplement, administer and enforce a system of performance bonds and 
liability insurance, or other equivalent guarantees, consistent with 
the requirements of subchapter J of [30 CFR Chapter VII].'' As 
discussed in Section II of this preamble, the Secretary made the 
finding required by 30 CFR 732.15(b)(6) when he conditionally approved 
the West Virginia ABS on January 21, 1981, with full approval following 
on March 1, 1983.
    The relevant provisions of subchapter J are those in 30 CFR 
800.11(e), which establishes criteria for approval of an ABS as part of 
a State or Federal program. Therefore, our findings focus on those 
provisions of the amendment relevant to the criteria in 30 CFR 
800.11(e). We do not necessarily discuss changes that are not pertinent 
to those criteria.
    OSM Directive STP-1 interprets the requirements of 30 CFR 800.11(e) 
as they pertain to State program amendment approval. Appendix 12 of 
Directive STP-1 specifies that, once the Secretary approves an ABS, we 
may approve subsequent revisions to the ABS through the State program 
amendment process as long as those revisions do not adversely impact 
previous findings. The directive further states that, when a proposed 
amendment concerns an ABS that no longer meets the criteria in 30 CFR 
800.11(e), we may approve the amendment even if it does not fully 
remedy all deficiencies, provided we find that the amendment does not 
adversely affect the solvency of the ABS. Based upon this rationale, we 
may approve any amendment that improves the ABS, even as we defer on 
the question of whether the amendment fully restores solvency or 
compliance with the other requirements of 30 CFR 800.11(e).
    We find that this amendment will improve the solvency of the ABS by 
adding approximately $1.9 million per month to the Special Reclamation 
Fund, beginning January 1, 2002. However, because this tax rate 
increase cannot take effect without our approval, we believe that 
delaying a decision on these funding enhancements until we decide the 
broader question of whether the amendment fully satisfies 30 CFR 
948.16(lll), as a commenter advocates, would be counterproductive. Our 
findings do not attempt to determine whether the ABS as revised by this 
amendment would be fully consistent with the criteria in 30 CFR 
800.11(e). Instead, we conclude that the amendment improves the ability 
of the ABS to comply with those criteria. As discussed above, we will 
separately determine, after opportunity for further comment, whether 
this amendment has satisfied all outstanding requirements or whether 
additional measures are needed.
    See Section II above, for a review of the history of our approval 
of West Virginia's ABS and the circumstances that preceded the State's 
submittal of this amendment.

1. W.Va. Code 22-1-17 Special Reclamation Fund Advisory Council

    This new section creates the Advisory Council.
Purpose and Operation of the Advisory Council
    Senate Bill 5003 creates the Advisory Council to ensure ``the 
effective, efficient and financially stable operation of the special 
reclamation fund.'' As required by W.Va. Code 22-1-17, the Advisory 
Council must ``study the effectiveness, efficiency, and financial 
stability of the special reclamation fund with an emphasis on 
development of a financial process that ensures the long-term stability 
of the special reclamation program.'' The Advisory Council must submit 
an annual report to the West Virginia Legislature and the Governor on 
the adequacy of the special reclamation tax (see Finding 2) and the 
fiscal condition of the Fund. The report must include recommendations 
as to whether any adjustments to the special reclamation tax should be 
made, considering the cost, timeliness and adequacy of bond forfeiture 
reclamation, including water treatment.
    The Advisory Council will consist of eight members, including the 
Secretary of the WVDEP (or designee), the Treasurer of the State of 
West Virginia (or designee), and the Director of the National Mine Land 
Reclamation Center at West Virginia University. In addition, the 
Governor will appoint five members: four representing the interests of 
the coal industry, environmental protection organizations, coal miners, 
and the general public; and one who, by training and profession, is an 
actuary or economist.
    The Federal regulations at 30 CFR 800.11(e)(1) require that an ABS 
ensure that the regulatory authority has sufficient money to complete 
the reclamation plan for any areas which may be in default at any time. 
We find that the Advisory Council, which has a statutory mandate to 
study the effectiveness, efficiency, and financial stability of the 
Fund, should prove useful in helping the ABS comply with 30 CFR 
800.11(e). Therefore, we are approving the addition of W.Va. Code 22-1-
17 to the West Virginia program.

2. W.Va. Code 22-3-11 Bonds; Amount and Method of Bonding; Bonding 
Requirements; Special Reclamation Tax and Fund; Prohibited Acts; Period 
of Liability

a. Incremental Bonding--Bond Amount
    In W.Va. Code 22-3-11(a), the State has increased the amount of the 
penal bond from one thousand dollars per acre to not less than one 
thousand dollars nor more than five thousand dollars for each acre or 
fraction thereof. This revision clarifies that incremental bonding is 
subject to the same per-acre bonding rate range as found in W.Va. Code 
22-3-12(b)(1), which pertains to site-specific bonding of an entire 
permit area.
    We find that this change would improve the ability of the West 
Virginia ABS to comply with 30 CFR 800.11(e). Therefore, we are 
approving it.
b. Use of Funds
    As amended, W.Va. Code 22-3-11(g) provides that moneys accrued in 
the Fund are reserved for the purposes set forth in W.Va. Code 22-3-11, 
which concerns bonds, and W.Va. Code 22-1-17, which concerns the 
Advisory Council. The Legislature also added language to prohibit the 
expenditure of moneys from the Fund to reclaim lands that are 
``eligible for abandoned mine land (AML) reclamation funds under 
article two of this chapter.''
    The latter change is apparently related to section 402(g)(4)(B) of 
SMCRA. As enacted on November 5, 1990, that provision authorizes use of 
AML reclamation funds to perform land reclamation on, and treat 
pollutional discharges of water from, (1) unreclaimed sites that were 
mined after August 4, 1977, under a program other than a permanent 
regulatory program approved by the Secretary, and (2) permanent program 
bond forfeiture sites with surety bonds for which the surety became 
insolvent on or before November 5, 1990. In both cases, SMCRA 
authorizes use of AML reclamation funds only if funds available from 
the bond or other form of financial guarantee or from any other source 
are not sufficient to provide adequate reclamation or abatement.
    West Virginia revised its Abandoned Mine Lands and Reclamation Act 
and its AML Plan in response to the addition of section 402(g)(4)(B) to 
SMCRA.

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However, as discussed in the March 26, 1993, Federal Register (58 FR 
16353, 16354), we deferred a decision on the State's proposed revisions 
because they were not fully consistent with the Federal provisions.
    Because of our deferral, addition of the phrase ``where the land is 
not eligible for abandoned mine land reclamation funds under article 
two of this chapter'' to W.Va. Code 22-3-11(g) does not preclude use of 
moneys from the Fund to reclaim any site for which a bond is required 
under 30 CFR Part 800 and section 509 of SMCRA. Therefore, we find that 
this revision to W.Va. Code 22-3-11(g) is not inconsistent with the 
bonding requirements of 30 CFR Part 800 and section 509 of SMCRA, and 
we are approving it.
c. Water Treatment Expenditures
    The State has deleted a provision in W.Va. Code 22-3-11(g) that 
limited spending from the Fund for water treatment systems to 25 
percent of the annual amount of the fees collected. This provision 
restricted expenditures for water treatment purposes, without regard to 
the amount needed to adequately treat such sites and ensure compliance 
with applicable effluent limitations and water quality standards. The 
deletion of this provision is necessary to provide for the complete 
abatement or treatment of pollutional discharges of water from bond 
forfeiture sites.
    The deletion of the 25 percent limitation partially satisfies the 
requirement codified at 30 CFR 948.16(jjj). However, to fully satisfy 
this requirement, the State must also delete the 25-percent limitation 
in its regulations at Code of State Regulations (CSR) 38-2-12.5(d). 
Under 30 CFR 948.16(jjj) the State must revise W.Va. Code 22-3-11(g) 
and CSR 38-2-12.5(d) to remove the limitation on the expenditure of 
funds for water treatment or to otherwise provide for the treatment of 
polluted water discharged from all bond forfeiture sites. As mentioned 
above, WVDEP is in the process of further revising its regulations. The 
State has said that it plans to delete the 25-percent limitation in its 
regulations at CSR 38-2-12.5(d) during the upcoming regular legislative 
session.
    In addition, revised subsection 22-3-11(g) states that the 
Secretary ``may,'' rather than ``shall,'' ``use the special reclamation 
fund for the purpose of designing, constructing and maintaining water 
treatment systems when they are required for a complete reclamation of 
the affected lands * * *.'' Ordinarily, the use of the word ``may'' 
implies discretion. However, the West Virginia Supreme Court of Appeals 
has determined that the WVDEP has a mandatory duty to use bond moneys 
for acid mine drainage treatment. State ex rel. Laurel Mountain v. 
Callaghan, 418 S.E.2d 580 (1990). Moreover, in a subsequent decision, 
the Court held that W.Va. Code 22A-3-11(g), now codified as 22-3-11(g), 
imposes upon the WVDEP ``a mandatory, nondiscretionary duty to utilize 
moneys from the SRF [Special Reclamation Fund] * * *, to treat AMD 
[acid mine drainage] at bond forfeiture sites when the proceeds of the 
forfeited bonds are less than the actual cost of reclamation.'' State 
ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia DEP, 
447 S.E.2d 920, 925 (1994).
    Nevertheless, we have previously found that the word ``may,'' in 
subsection (g), could not be approved because it provides the WVDEP 
with the discretion not to use Fund moneys for water treatment. (60 FR 
at 51902, October 4, 1995.) Therefore, we are requiring that the State 
amend its program to specify that moneys from the Fund must be used, 
where needed, to pay for water treatment on bond forfeiture sites. 
Otherwise, we find that these amendments would improve the ability of 
the West Virginia ABS to comply with 30 CFR 800.11(e) and that they are 
not inconsistent with that regulatory provision. As such, we are 
approving them. For the reasons discussed above, we are revising 30 CFR 
948.16(jjj) to reflect the statutory changes and to require the State 
to amend its program to specify that the Fund must be used, where 
needed, to pay for water treatment on bond forfeiture sites.
d. Administrative Expenses
    In W. Va. Code 22-3-11(g), the State deleted a reference to 
Articles 2 and 4 of W. Va. Code Chapter 22. The revised provision now 
only allows the WVDEP to expend up to 10 percent of the total annual 
assets in the Fund to implement and administer the provisions of W. Va. 
Code 22-3 and, to the extent that they apply to the Surface Mine Board, 
W. Va. Code 22B-1 and 4. This revision is intended to prohibit the 
expenditure of special reclamation funds for administrative activities 
under Article 2, Abandoned Mine Lands Reclamation Act, and Article 4, 
Surface Mining and Reclamation of Minerals Other Than Coal.
    Given the current deficit in the Fund, we encouraged the State to 
modify this language to limit expenditures from the Fund for 
administrative expenses relating only to the special reclamation 
program. Furthermore, as discussed in the March 20, 1986, Federal 
Register and codified at former 30 CFR 948.15(i), before making any 
withdrawals to cover administrative expenses unrelated to bond 
forfeitures, West Virginia must request and receive OSM concurrence for 
such withdrawals (54 FR 9649). To assist in restoring and maintaining 
the financial solvency of the Fund, this requirement will continue to 
apply to any withdrawals that are not related to bond forfeiture 
reclamation administrative expenses.
    For the reasons discussed above, we find that these revisions to W. 
Va. Code 22-3-11(g) would improve the ability of the West Virginia ABS 
to comply with 30 CFR 800.11(e). Therefore, we are approving them.
e. Special Reclamation Tax Rates/Financial Analysis
    New W. Va. Code 22-3-11(h) increases the permanent special 
reclamation tax rate from 3 cents per ton of clean coal mined to 7 
cents per ton of clean coal mined. This subsection also levies an 
additional tax of 7 cents per ton of clean coal mined for a period not 
to exceed 39 months. Collection of both taxes will begin on or after 
January 1, 2002. Coal refuse reprocessing operations that require a 
surface mining permit must pay the tax on the clean coal obtained by 
these mining methods.
    Subsection 22-3-11(h) provides that the 7-cent permanent tax rate 
may not be reduced until the Fund has sufficient moneys to meet the 
State's reclamation responsibilities under W. Va. Code 22-3-11. 
Furthermore, this tax rate will be reviewed and, if necessary, adjusted 
annually by the Legislature upon recommendation of the Advisory Council 
(see Finding 1 above).
    The increased per-ton tax assessments are intended to eliminate the 
existing Fund deficit and assure that the Fund will have sufficient 
moneys to meet the State's long-term water treatment responsibilities 
and complete the reclamation plans of existing and future bond 
forfeiture sites.
    On September 7, 2001, we completed a financial analysis of a draft 
version of a legislative submission that would have increased the 
special reclamation tax rate (Administrative Record Number WV-1236). At 
that time, we informed the State that based on our analysis, it 
appeared that a proposed tax rate of 14 cents for up to 39 months and 7 
cents thereafter would allow the WVDEP to eliminate the current Fund 
deficit and meet land reclamation and water treatment needs for several 
years. Our projections also indicated that, following the period of 
surplus, the

[[Page 67450]]

liabilities of the Fund would exceed its assets in about nine years and 
that future adjustments of the special reclamation tax rate would be 
necessary to maintain a positive balance to meet future land 
reclamation and water treatment needs.
    However, as amended, the W. Va. Code provides several mechanisms 
intended to prevent the Fund from deteriorating to a point where its 
liabilities exceed its assets. First, W. Va. Code 22-3-11(h) provides 
that the 7-cent permanent special reclamation tax rate may not be 
reduced until the Fund has sufficient moneys to meet the State's 
reclamation responsibilities established by law. Second, W. Va. Code 
22-1-17 establishes the Advisory Council to ``ensure the effective, 
efficient and financially stable operation of the Fund.'' If the 
Advisory Council fulfills its obligations, the West Virginia 
Legislature and the Governor will have the information and data they 
need to make sound decisions and effective adjustments to the special 
reclamation tax rate so that the Fund will maintain a positive balance 
to meet existing and future land and water reclamation obligations.
    In addition, W. Va. Code 22-1-17(f)(6) provides that the Advisory 
Council must ``[s]tudy and recommend to the Legislature alternative 
approaches to the current funding scheme of the special reclamation 
fund, considering revisions which will assure future proper reclamation 
of all mine sites and continued financial viability of the state's coal 
industry.'' Because reclamation of mine sites includes meeting water 
treatment obligations, and because subsection 22-1-17(f)(6) provides a 
mechanism that, if properly implemented, could help assure proper 
future reclamation, we believe this provision will greatly assist in 
ensuring that the State is able to adequately address the Fund's long-
term bond forfeiture reclamation obligations.
    For the reasons discussed above, we find that the addition of W. 
Va. Code 22-3-11(h) would improve the ability of the West Virginia ABS 
to comply with 30 CFR 800.11(e). Therefore, we are approving it.
    However, we are not deciding today whether the amendments satisfy 
the outstanding required amendment pertaining to the financial adequacy 
of the State's ABS at 30 CFR 948.16(lll). 30 CFR 948.16(lll) requires 
that the State eliminate the deficit in the ABS and ensure that 
sufficient money will be available to complete reclamation, including 
the treatment of polluted water, at all existing and future bond 
forfeiture sites. Commenters on the proposed amendments have expressed 
concern that the Fund, as currently financed by these amendments, may 
not maintain a positive cash balance to meet existing and future land 
reclamation and water treatment needs. Commenters provided information 
that we wish to more fully consider in our decision as to whether the 
amendment fully satisfies the requirements of 30 CFR 948.16(lll). 
Therefore, we will publish separately a new notice in the Federal 
Register, soliciting further comments on this issue.
f. Funding Mechanism
    In W. Va. Code 22-3-11(k), the State eliminated language providing 
that the special reclamation tax must be collected whenever the 
reclamation liabilities of the State exceed the accrued amount in the 
Fund. This provision, in effect, allowed the accrued monies in the Fund 
to sink below the level of its reclamation and water treatment 
obligations. The deletion of this provision, in concert with the 
addition of the new provision at subsection 22-3-11(h) that prohibits 
the special reclamation tax rate from being reduced until the Fund has 
a positive balance, together with the creation of the Advisory Council 
at section 22-1-17, is designed to help assure that the Fund maintains 
a positive balance to meet the State's land reclamation and water 
treatment responsibilities.
    The deletion of this language from W. Va. Code 22-3-11(k) satisfies 
the requirement codified at 30 CFR 948.16(kkk) which provides that the 
State must remove the provision at (former) W. Va. Code 22-3-11(g) that 
allows collection of the special reclamation tax only when the Fund's 
liabilities exceed its assets. For the reasons discussed above, we are 
approving the deletion of the language and we are removing 30 CFR 
948.16(kkk).
g. Implementation of Amendments
    New W. Va. Code 22-3-11(n) provides that the modifications to W. 
Va. Code 22-3-11 will become effective upon approval by the appropriate 
Federal agency or official. This provision is consistent with the 
Federal regulations at 30 CFR 732.17(g), which provide that no changes 
to State laws or regulations may take effect for purposes of the State 
program until approved as an amendment. Therefore, we are approving 
this subsection.

3. W. Va. Code 22-3-12 Site-specific Bonding

    This amendment deletes W. Va. Code 22-3-12(b), which contained 
provisions requiring the formulation of legislative rules to implement 
site-specific bonding requirements on an interim basis. West Virginia 
subsequently developed and adopted those rules in November 1992. Those 
rules remained in effect until April 1993, at which time the State 
adopted final legislative rules. Therefore, W. Va. Code 22-3-12(b) is 
no longer relevant.
    This amendment also deletes W. Va. Code 22-3-12(f), which required 
the WVDEP to report every 90 days on the progress in developing and 
implementing the site-specific bonding requirements of W. Va. Code 22-
3-12. Final legislative rules, which are codified at CSR 38-2-11.6, 
were adopted by the Legislature in 1993 and subsequently approved by 
OSM in 1995.
    Neither of the deleted subsections has a Federal counterpart. We 
find that their deletion will not have an adverse impact on the ability 
of the West Virginia ABS to meet the criteria in 30 CFR 800.11(e). 
Therefore, we are approving their removal from the West Virginia 
program.

V. Summary and Disposition of Comments

Public Comments

    In response to our request for comments from the public on the 
proposed amendment (see Section III of this document), we received 
comments from the WVHC; Morgan Worldwide Mining Consultants, Inc., a 
consultant for the WVHC; and the West Virginia Coal Association, Inc. 
(WVCA). Our summary and disposition of those comments appears below.
1. Criteria for Approving State Program Amendments
    a. The WVHC alleged that we have no authority to approve the 
amendment because the amendment does not fully satisfy all outstanding 
requirements concerning the ABS. In particular, the WVHC argued against 
use of the rationale that the amendment would incrementally improve the 
effectiveness of the bonding system as a basis for approval of the 
amendment. According to the WVHC, approval of the amendment on that 
basis would be illegal because the ABS would remain in noncompliance 
with federal law. The WVHC argued that use of this rationale ``would 
eviscerate the requirements for an adequate alternative bonding system 
in 30 CFR 800.11(e) and 30 CFR 948.16(lll), and would allow incremental 
improvements over a long period of time that never achieved those 
requirements.'' The WVHC further stated that deferral of an analysis of

[[Page 67451]]

whether the ABS as revised by the amendment would satisfy the 
requirements of 30 CFR 948.16(lll) would cause an unreasonable delay in 
remedying the inadequacies of the ABS.
    Neither SMCRA nor the Federal regulations prohibit us from 
approving a proposed amendment that improves a deficient State program. 
It would be counterproductive for us to do otherwise. As discussed in 
Finding 2 above, we believe the amendment will greatly assist in 
ensuring that the West Virginia ABS is able to comply with the Federal 
ABS requirements at 30 CFR 800.11(e). Therefore, we are approving it.
    However, we are deferring our decision as to whether these changes 
allow us to remove the language at 30 CFR 948.16(lll), which requires 
that West Virginia submit an amendment to eliminate the ABS deficit and 
``to ensure that sufficient money will be available to complete 
reclamation, including the treatment of polluted water, at all existing 
and future bond forfeiture sites.'' As also discussed in Finding 2, we 
will open a new comment period to provide all interested parties with 
the opportunity to fully assess and comment on the impact that the 
amendment will have on the State's ABS and comment on whether the 
amendment is sufficient to justify removal of the required amendment at 
30 CFR 948.16(lll). When that comment period closes, we will address 
all comments received in response to that comment period as well as all 
comments received in response to the comment period for this amendment 
that we have not responded to in this preamble.
    b. The WVCA alleged that the amendment is inconsistent with Federal 
law and regulations because ``SMCRA neither addresses the need to bond 
for potential discharges of polluting water, nor does it create a 
special fund to supplement site specific bonds to aid in that 
reclamation.'' However, the WVCA argued that we must nonetheless 
approve the amendment because ``[t]he provisions of Sec. 505(b) of 
SMCRA expressly provide that a State law that imposes requirements not 
found in SMCRA, or ones more stringent than those required by the 
federal program are not legally defective by reason of that 
inconsistency.''
    We disagree with the commenter on both points. As discussed in 
Finding A.1.b. in the October 4, 1995, Federal Register (60 FR 51900, 
51901-02), which concerns a different West Virginia ABS amendment, both 
SMCRA and the Federal regulations effectively require that the bond 
cover the cost of completing the reclamation plan in the event of 
forfeiture, including the expense of treating any postmining 
pollutional discharges that develop. And section 509(c) of SMCRA 
expressly provides for the development of alternative bonding systems 
such as the one in place in West Virginia. Each ABS must meet the 
criteria established in 30 CFR 800.11(e).
    With respect to the commenter's second argument, section 505(a) of 
SMCRA prohibits us from superseding a State law or regulation ``except 
insofar as such State law or regulation is inconsistent with the 
provisions of this Act.'' Section 505(b) provides that we may not 
construe State laws or regulations that provide for more stringent land 
use and environmental controls as inconsistent with SMCRA. It also 
provides that any provision of State law or regulation ``for which no 
provision is contained in this Act shall not be construed to be 
inconsistent with this Act.'' In other words, section 505 precludes us 
from superseding a State statutory or regulatory provision merely 
because the State provision is more stringent or has no Federal 
equivalent. However, contrary to the commenter's assertion, section 505 
places no affirmative duty on us to approve the pertinent provision as 
part of the State program. Furthermore, we would not approve a State 
provision that has no direct SMCRA counterpart if we determined that 
the State provision would conflict with a SMCRA-related requirement.
2. Reclamation Cost Estimates
    The WVHC stated that we misled the public and State Legislature by 
claiming that the amendment would solve the State's decades-long ABS 
deficit. Specifically, the WVHC stated that our September 7, 2001, 
financial analysis of the draft version of this amendment grossly 
misrepresents the ability of the amendment to raise sufficient revenues 
to make the fund solvent, and provide an adequate reserve to promptly 
reclaim future forfeiture sites. We disagree.
    We note that the commenters on the amendment widely disagree on the 
effectiveness of the amendment to solve the financial problems of the 
ABS. However, our September 7, 2001, financial analysis represents our 
best estimate of the effect that the draft version of the amendment 
would have on the ABS, given the information available to us at the 
time. By giving commenters and ourselves more time, during the new 
comment period referenced above, to study the potential impacts of the 
proposed changes, we will assure a well reasoned decision as to whether 
the amendment fully rectifies the long-term financial problems of the 
ABS.
3. Requirement to Bond for Treatment of Pollutional Discharges
    The WVCA stated that SMCRA does not address the need to bond for 
potential discharges of polluting water and that our authority to 
impose that requirement at 30 CFR 948.16(lll) remains in question. The 
WVCA noted that the National Mining Association has filed suit in 
Federal court in Tennessee to have a similar program requirement there 
declared illegal. For these reasons, the WVCA asserted, our reference 
to 30 CFR 948.16(lll) is inappropriate.
    The litigation referred to by WVCA (National Mining Association v. 
Norton, Civil Action No. :00-0549, E.D. Tenn.) has no current impact on 
the validity of the mandate imposed by OSM at 30 CFR 948.16(lll). 
Indeed, the court in that litigation has not yet decided whether SMCRA 
requires operators to post bonds to cover the costs of pollutional 
discharge treatment. Moreover, for the reasons stated in that 
litigation, and in our response to comments in this rulemaking in Item 
1.b. above, we believe that SMCRA clearly does require operators to 
treat pollutional discharges during and after mining and reclamation 
until all applicable effluent limitations and water quality standards 
are met, and that, therefore, bonds must be posted to cover the costs 
of such treatment. We have stated this principle in several documents, 
including our decision on a prior West Virginia amendment as announced 
in the October 4, 1995, Federal Register (60 FR 51900, 51902), and our 
March 31, 1997, ``Policy Goals and Objectives on Correcting, Preventing 
and Controlling Acid/Toxic Mine Drainage.'' For these reasons, we 
disagree with WVCA's assertion that the requirement in 30 CFR 
948.16(lll) is inappropriate.
4. Alleged Abuse of Discretion by Failing to Grant an Extension to the 
Comment Period
    In a letter dated November 6, 2001 (Administrative Record Number 
WV-1245), the WVHC requested an extension of the public comment period 
on the State program amendment. By letter dated November 9, 2001 
(Administrative Record Number WV-1246), we denied the request. WVHC 
stated in its comments to this amendment that we abused our discretion 
by denying its request.
    We declined to reopen the comment period for two reasons. One, an 
extension would delay our decision on

[[Page 67452]]

the amendment, which could result in a loss of badly needed revenues, 
possibly $1.9 million per month, to the Fund. Two, we agree with WVHC 
that, because of the complexity and the volume of material related to 
questions about how the amendment will affect the West Virginia 
program, additional time is needed by all interested parties to assess 
the effect of the amendment. Consequently, we have decided to open a 
new comment period on the broader question of whether the amendment 
fully satisfies the requirement at 30 CFR 948.16(lll) concerning the 
adequacy of the State's ABS. The new comment period will allow WVHC and 
all interested parties, including OSM, valuable additional time needed 
to thoroughly review those materials and assess whether the changes 
fully correct the deficiencies in the State's ABS.
    Comments submitted in response to the comment solicitation for the 
amendment that we are approving today need not be resubmitted. All 
comments submitted on the current amendment that we have not addressed 
in this preamble will be addressed in full following the closure of the 
new comment period.
5. Other WVHC Comments
    The WVHC stated that the proposed amendment satisfies 30 CFR 
948.16(kkk), but not 30 CFR 948.16(jjj) nor (lll). We agree that the 
amendment satisfies 30 CFR 948.16(kkk). See Finding 2.f. However, as we 
state in Finding 2.c., the amendment partially satisfies 30 CFR 
948.16(jjj). To fully satisfy 30 CFR 948.16(jjj), the State must also 
delete the 25-percent limitation for water treatment in its regulations 
at CSR 38-2-12.5(d).
    As we state in Finding 2.e., we are deferring our decision as to 
whether the amendment satisfies 30 CFR 948.16(lll) regarding the 
adequacy of the ABS. We will open a comment period in the near future 
to solicit comments on whether the amendment satisfies 30 CFR 
948.16(lll).
6. Morgan Worldwide Mining Consultants, Inc. Comments
    All of the comments submitted by this commenter pertain to our 
September 7, 2001, financial analysis of the draft version of the 
amendment submitted by the State. As we discussed above, we will 
address all comments relating to our September 7, 2001, financial 
analysis at a later date. We will open a new comment period to ask for 
comments relating to 30 CFR 948.16(lll).
7. Other WVCA Comments
    This WVCA expressed support for the amendment and urged us to 
approve the amendments. As noted above in the findings, we are 
approving the amendments.
    The WVCA complimented the WVDEP and the State Legislature for 
developing comprehensive legislation that, it said, will address the 
question of proper funding for bond forfeiture sites. In response, we 
note that although we are approving the amendments, we are not deciding 
today the broader question of whether the amendment satisfies 30 CFR 
948.16(lll), regarding the adequacy of the ABS. We will open a new 
comment period to ask for comments relating to 30 CFR 948.16(lll).
    The remaining comments submitted by this commenter pertain to our 
September 7, 2001, financial analysis of the draft version of the 
amendment submitted by the State. We will address all comments relating 
to our September 7, 2001, financial analysis in a decision we will 
ultimately render on the broader issue of whether the amendment 
satisfies the requirements of 30 CFR 948.16(lll).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the West Virginia program 
(Administrative Record Number WV-1239). The U. S. Department of Labor, 
Mine Safety and Health Administration (MSHA) responded and stated that 
it finds no issues or impact upon miner's health and safety with the 
State amendment (Administrative Record Number WV-1248).

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a 
written concurrence from EPA for those provisions of the program 
amendment that relate to air or water quality standards issued 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.). None of the revisions that West 
Virginia made in this amendment pertain to air or water quality 
standards. Therefore, we did not ask EPA for its concurrence on this 
amendment.
    Under 30 CFR 732.17(h)(11)(i), by letter dated September 28, 
2001(Administrative Record No. WV-1239), we requested comments from EPA 
on this amendment (Administrative Record Number WV-1238). The EPA 
responded by letter dated November 13, 2001 (Administrative Record 
Number WV-1247). The EPA commended the State for eliminating the 25-
percent expenditure limitation for water treatment. As we noted in 
Finding 2.c. above, the deletion of the 25-percent limitation only 
partially satisfies the required program amendment codified at 30 CFR 
948.16(jjj). The State still needs to revise its regulations to conform 
with the statutory changes.
    The EPA also recommended eliminating the 39-month limit on the 
temporary tax. According to the EPA, this restriction could result in 
insufficient funds for possible future acid mine drainage treatment 
needs. The EPA stated that the State Legislature would always have the 
option on an annual basis to adjust the tax rate downward when the Fund 
is determined to have sufficient resources.
    As discussed in Finding 2.e. above, the legislation provides that 
the permanent 7-cent tax rate ``may not be reduced until the special 
reclamation fund has sufficient moneys to meet the reclamation 
responsibilities. * * *''
    In addition, as noted in that finding, the amendment provides an 
appropriate mechanism, via the Advisory Council, to effectively manage 
and monitor the financial condition of the Fund and the adequacy of the 
special reclamation tax. Therefore, we are approving the amendment. 
However, we plan to solicit further comments to determine if the 
State's ABS provides for the amount of financial resources and kinds of 
assurances that EPA feels is necessary if the State is to meet long-
term water treatment needs at bond forfeiture sites.

VI. OSM's Decision

    Based on the above findings, we are approving the amendment 
submitted by West Virginia on September 24, 2001. In addition, we are 
removing the required program amendment at 30 CFR 948.16(kkk).
    We are also revising 30 CFR 948.16(jjj) to reflect the statutory 
changes and to require the State to amend its program to specify that 
moneys from the Fund must be used, where needed, to pay for water 
treatment on bond forfeiture sites. We are also taking this opportunity 
to update obsolete information at 30 CFR 948.10 and 948.20. The changes 
to 30 CFR 948.10 and 948.20 are technical revisions that do not require 
public comment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 948, which codify decisions concerning the West Virginia 
program. Our regulations at 30 CFR 732.17(h)(12)

[[Page 67453]]

specify that all decisions approving or disapproving amendments will be 
published in the Federal Register and that they will be effective upon 
publication, unless the notice specifies a different date. We are 
making this final rule effective immediately to expedite the State 
program amendment process and to assist the State in making its program 
conform with the Federal standards as required by the Act.

VII. 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 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 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 fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

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 fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 13, 2001.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR 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 948.10 is revised to read as follows:


Sec. 948.10  State regulatory program approval.

    The West Virginia program, as submitted on March 3, 1980, as 
clarified on July 16, 1980, and as resubmitted on December 19, 1980, is 
conditionally approved, effective January 21, 1981. Beginning on that 
date and continuing until July 11, 1985, the Department of Natural 
Resources was deemed the regulatory authority in West Virginia for all 
surface coal mining and reclamation operations and all exploration 
operations on non-Federal and non-Indian lands. Beginning on July 11, 
1985, the Department of Energy was deemed the regulatory authority

[[Page 67454]]

pursuant to the program transfer provisions of Enrolled Committee 
Substitute for House Bill 1850, as signed by the Governor of West 
Virginia on May 3, 1985. Beginning on October 16, 1991, the Division of 
Environmental Protection was deemed the regulatory authority pursuant 
to Enrolled Committee Substitute for House Bill 217 that was signed by 
the Governor on October 25, 1991. On December 3, 1991, OSM found that 
it was not necessary to amend the State program to effect the 
redesignation of the regulatory authority from the Division of Energy 
to the Division of Environmental Protection (58 FR 42904, August 12, 
1993). Beginning on April 14, 2001, the Department of Environmental 
Protection was deemed the regulatory authority pursuant to Enrolled 
Committee Substitute for House Bill 2218. The bill, which was signed by 
the Governor on April 30, 2001, transferred programs and redesignated 
the Division of Environmental Protection as the Department of 
Environmental Protection within the executive branch. Copies of the 
conditionally approved program, as amended, are available at:
    (a) Office of Surface Mining, Charleston Field Office, 1027 
Virginia Street East, Charleston, West Virginia 25301-2816. Telephone: 
(304) 347-7158.
    (b) West Virginia Department of Environmental Protection, Division 
of Mining and Reclamation, 10 McJunkin Road, Nitro, West Virginia 
25143-2506. Telephone: (304) 759-0510.

    3. Section 948.15 is amended by adding a new entry to the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                     Date of publication of
Original amendment  submission date         final rule           Citation/description of approved provisions
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
September 24, 2001.................  December 28, 2001.....  W. Va. Code 22-1-17; 22-3-11(a), (c), (d), (g)
                                                              through (n); 22-3-12(a) through (f).
----------------------------------------------------------------------------------------------------------------


    4. Section 948.16 is amended by removing and reserving paragraph 
(kkk) and revising paragraph (jjj) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (jjj) By March 28, 2002, 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 CSR 38-2-12.5(d) to 
remove the 25-percent limitation on the expenditure of funds for water 
treatment or to otherwise provide for the treatment of polluted water 
discharged from all bond forfeiture sites. In addition, the State must 
amend its program to specify that moneys from the Special Reclamation 
Fund must be used, where needed, to pay for water treatment on bond 
forfeiture sites.
* * * * *

    5. Section 948.20 is revised to read as follows:


Sec. 948.20  Approval of State abandoned mine land reclamation plan.

    The West Virginia Abandoned Mine Reclamation Plan as submitted on 
October 29, 1980, and as amended on December 12, 1980, is approved 
effective February 23, 1981. Copies of the approved plan are available 
at the following locations:
    (a) Office of Surface Mining, Charleston Field Office, 1027 
Virginia Street East, Charleston, West Virginia 25301-2816. Telephone: 
(304) 347-7158.
    (b) West Virginia Department of Environmental Protection, Abandoned 
Mine Lands and Reclamation, 10 McJunkin Road, Nitro, West Virginia 
25143-2506. Telephone: (304) 759-0521.

[FR Doc. 01-31612 Filed 12-27-01; 8:45 am]
BILLING CODE 4310-05-P