[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Proposed Rules]
[Pages 67455-67457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31613]



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

[[Page 67455]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-094-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; opening of public comment period and opportunity 
for public hearing on an amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM) are announcing the opening of a public comment period and an 
opportunity for public hearing or meeting on the effectiveness of a 
recently approved amendment to the West Virginia surface mining 
regulatory program (the West Virginia program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act) to satisfy the 
Federal requirements regarding an alternative bonding system (ABS). We 
announced approval of an amendment to the West Virginia program 
concerning the State's ABS in a final rule document that appears 
elsewhere in this Federal Register issue. The amendment consisted of 
changes to the Code of West Virginia (W. Va. Code) as contained in 
Enrolled Senate Bill 5003, and: established the Special Reclamation 
Fund Advisory Council; increased the special reclamation tax rate to 
provide additional revenue for the reclamation of bond forfeiture 
sites; and deleted language that limited expenditures from the State's 
ABS for water treatment.
    We are opening this comment period to provide all interested 
parties additional time to review the relevant materials and to submit 
comments on whether the State amendment, as submitted on September 24, 
2001, and approved by OSM elsewhere in this Federal Register issue 
fully resolves all ABS deficiencies and satisfies the required program 
amendment codified at 30 CFR 948.16(lll). That requirement provides 
that the State must eliminate the deficit in its ABS and ensure that 
sufficient money will be available in the future to complete 
reclamation, including the treatment of polluted water, at all existing 
and future bond forfeiture sites. We are seeking comment on whether the 
State's amendment provides a permanent, long-term solution to the 
State's ABS problems.
    Comments previously submitted in response to our October 24, 2001 
(66 FR 53749), Federal Register notice on the State's amendment need 
not be resubmitted.
    This document gives the times and locations that the State's 
amendment and other relevant documents are available for your 
inspection, the comment period during which you may submit written 
comments on whether the amendment fully satisfies all outstanding 
requirements concerning West Virginia's ABS, and the procedures that we 
will follow for the public hearing or meeting, if one is requested.

DATES: We will accept written comments until 4:30 p.m. (local time), on 
March 28, 2002. If requested, we will hold a public hearing or meeting 
on the amendment on March 25, 2002. We will accept requests to speak at 
the hearing until 4:30 p.m. (local time), on March 18, 2002.

ADDRESSES: You may mail or hand-deliver written comments and requests 
to speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston 
Field Office at the address listed below.
    You may review copies of the West Virginia program, the recently 
approved amendment, a listing of any scheduled public hearings, and all 
written comments received in response to both this document and the 
recently approved amendment at the addresses below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the State's amendment, our Federal Register 
notice approving the amendment, our Financial Analysis on the 
amendment, and comments submitted in response to the State's amendment 
by contacting OSM's Charleston Field Office.
    Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301, Telephone: (304) 347-7158.
    West Virginia Department of Environmental Protection, 10 McJunkin 
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510. The 
approved amendment is posted at the Division of Mining and 
Reclamation's Internet Web page: http://www.dep.state.wv.us/mr.
    In addition, you may review copies of the approved amendment, our 
Federal Register notice approving the amendment, our Financial Analysis 
on the amendment, and comments submitted in response to the State's 
amendment during regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West 
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 
25801,Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office; Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:   

I. Background on the West Virginia Program
II. Background on West Virginia's Alternative Bonding System
III. Description of the Issues Being Considered
IV. Public Comment Procedures
V. 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)

    You can find background information on West Virginia's ABS in 
Section II of the final rule document that appears elsewhere in this 
Federal Register issue.

III. Description of the Amendment and Issues Being Considered

    By letter dated September 24, 2001 (Administrative Record Number 
WV-1238), the WVDEP sent us a proposed amendment to its program under 
SMCRA. The amendment was submitted in response to our 30 CFR part 733

[[Page 67456]]

notification of June 29, 2001 (Administrative Record Number WV-1218). 
The program amendment added new W. Va. Code section 22-1-17 which 
established the Special Reclamation Fund Advisory Council (Advisory 
Council). The amendment also revised the provisions of W. Va. Code 
sections 22-3-11 by increasing the special reclamation tax rate from 3 
cents to 14 cents per ton of clean coal mined for 39 months and 
reducing it to 7 cents thereafter, and modified section 22-3-12 by 
deleting certain site-specific bonding provisions.
    We announced receipt of the amendment on October 24, 2001 (66 FR 
53749), and we approved the amendment in the final rule document that 
appears elsewhere in this Federal Register issue.

Why We Are Asking For Your Comments Now

    In our approval of the State's amendment elsewhere in this Federal 
Register issue, we announced that we were deferring our decision 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. We need the additional time to fully evaluate the long-
term solvency of the State's ABS. This is a complex issue requiring not 
only a review of known reclamation costs at existing bond forfeiture 
sites, but also a projection of future reclamation costs associated 
with perpetual water treatment and additional forfeitures. It also 
requires an evaluation of ABS revenue estimates, given the increased 
special reclamation tax rate, and of whether the new rate is sufficient 
to meet existing and future bond forfeiture reclamation demands.
    As provided by State law, the Advisory Council is required to study 
and recommend to the Legislature alternative approaches to the current 
funding scheme of the ABS. In addition, the Advisory Council must study 
the effectiveness, efficiency and financial stability of the ABS with 
an emphasis on the development of a financial system that ensures the 
long-term stability of the State's special reclamation program. We are 
interested in receiving public comments on whether the State's current 
ABS, with its reliance on a coal production tax and a monitoring board, 
will fully satisfy the Federal requirement at 30 CFR 948.16(lll), which 
provides that the State must eliminate the deficit in its ABS and 
ensure that sufficient money will be available in the future to 
complete reclamation, including the treatment of polluted water, at all 
existing and future bond forfeiture sites.
    Other related issues that must be considered and for which we are 
seeking public comment include, but are not limited to: accuracy of 
bond forfeiture rates; accuracy of land reclamation and water treatment 
cost estimates; accuracy of State and Federal bond forfeiture acid mine 
drainage (AMD) inventories; accuracy of coal production projections; 
compliance with reclamation plans; timeliness of bond forfeiture 
reclamation and bond forfeiture collections; adequacy of the increased 
special reclamation tax rate; and adequacy and effectiveness of bond 
forfeiture reclamation.
    Additional time is also needed by all interested parties, including 
OSM, to complete a comprehensive review of all documents that have been 
generated as a result of this amendment and submitted in response to 
our earlier request for public comments. These comments, together with 
any additional comments that we may receive in response to this notice, 
will help us determine if the State's ABS amendment fully satisfies the 
outstanding required amendment at 30 CFR 948.16(lll), or if additional 
measures are needed by the State to ensure consistency with Federal ABS 
requirements.

IV. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the State's September 24, 2001, amendment that we 
have approved and appears elsewhere in this Federal Register issue 
renders the West Virginia ABS sufficient and fully satisfies the 
requirements of 30 CFR 948.16(lll). We are interested in receiving 
additional comments on those bonding related issues identified above in 
Section III to assist us in determining whether or not the State's 
amendment fully satisfies the outstanding required amendment at 30 CFR 
948.16(lll). Comments previously submitted in response to our October 
24, 2001 (66 FR 53749), Federal Register notice on the State's 
amendment need not be resubmitted.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendation(s). In the final rulemaking, we will not 
necessarily consider or include in the administrative record any 
comments received after the time indicated under DATES or at locations 
other than the Charleston Field Office.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during our normal business 
hours. We will not consider anonymous comments. If individual 
respondents request confidentiality, we will honor their request to the 
extent allowable by law. Individual respondents who wish to withhold 
their names or address from public review, except for the city or town, 
must state this prominently at the beginning of their comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:30 p.m. (local time), 
on March 18, 2002. We will arrange the location and time of the hearing 
with those persons requesting the hearing. If no one requests an 
opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.
    If you are disabled and need special accommodation to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of the 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the Administrative Record.

[[Page 67457]]

V. 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 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget (OMB) 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, to the 
extent allowable 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 because 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 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. 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 affect 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the OMB under the Paperwork Reduction Act (44 
U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulation.

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, geographic regions or Federal, State, or local government 
agencies; 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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 13, 2001.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-31613 Filed 12-27-01; 8:45 am]
BILLING CODE 4310-05-P