[Federal Register Volume 67, Number 87 (Monday, May 6, 2002)]
[Proposed Rules]
[Pages 30336-30338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11247]


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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; reopening of public comment period.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are reopening the public comment period 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 are reopening the comment period to provide an opportunity to 
review and comment on a proposed regulatory change by the State. The 
proposed amendment concerns water quality enhancement, and deletes 
regulatory language that limits expenditures from the State's Fund for 
water quality enhancement projects to 25 percent of the Fund's gross 
annual revenue. The amendment is intended to satisfy the required 
program amendment codified in the Federal regulations at 30 CFR 
948.16(jjj). The proposed amendment is part of the State's efforts to 
fully resolve all ABS deficiencies and to satisfy the required program 
amendment at 30 CFR 948.16(lll).
    This document gives the times and locations that the amendment is 
available for your inspection, and the comment period during which you 
may submit written comments.

DATES: We will accept written comments until 4:30 p.m. (local time), on 
May 21, 2002.

ADDRESSES: You may mail or hand-deliver written comments to Mr. Roger 
W. Calhoun, Director, Charleston Field Office at the address listed 
below.
    You may review copies of the West Virginia program, this amendment, 
all written comments received in response to this document at the 
addresses below during normal business hours, Monday through Friday, 
excluding holidays. You may receive one free copy of the 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. E-mail: 
[email protected].
    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 amendment and all written 
comments received in response to this document 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. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, `` * * * 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. Description of the Proposed Amendment

    By letter dated April 9, 2002 (Administrative Record Number WV-
1296A), West Virginia sent us a proposed amendment to its program under 
SMCRA. The amendment that we are seeking comment on concerns the water 
quality enhancement provisions at Code of State Regulations (CSR) 38-2-
12.5. The amendment to CSR 38-2-12.5. was submitted as part of a larger 
program amendment authorized by Enrolled Committee Substitute for House 
Bill 4163 that was passed by the Legislature on March 9, 2002, and 
signed into law by the Governor on April 3, 2002 (Administrative Record 
Number WV-1293).
    We are seeking your comments on the deletion, at CSR 38-2-12.5.d., 
of the 25-percent limitation on expenditures from the Fund for water 
quality enhancement projects. The specific language that the State 
proposed to delete at subsection 12.5.d. is as follows:

    Expenditures from the special reclamation fund for water quality 
enhancement projects shall not exceed twenty-five percent (25%) of 
the funds gross annual revenue as provided in subsection g, section 
11 of the [West Virginia] Act.



[[Page 30337]]


    After the deletion, CSR 38-2-12.5.d. reads as follows:

    12.5.d. In selecting such sites for water quality improvement 
projects, the Secretary shall determine the appropriate treatment 
techniques to be applied to the site. The selection process shall 
take into consideration the relative benefits and costs of the 
projects.

Related Information

    This proposed amendment is part of the State's efforts to fully 
resolve all ABS deficiencies and to satisfy the required program 
amendment codified at 30 CFR 948.16(lll). On December 28, 2001, we 
approved an amendment to the West Virginia program concerning the ABS. 
The amendment was submitted in response to our 30 CFR part 733 
notification of June 29, 2001 (Administrative Record Number WV-1218). 
The amendment consisted of changes to the Code of West Virginia (W. Va. 
Code) as contained in Enrolled Senate Bill 5003. It established the 
Special Reclamation Fund Advisory Council to ensure the effective, 
efficient and financially stable operation of the Fund; provided for a 
contract with a qualified actuary to determine the Fund's soundness on 
a four-year basis; increased the special reclamation tax rate to 
provide additional revenue for the reclamation of bond forfeiture 
sites; and deleted language in the statute that limited expenditures 
from the State's ABS for water treatment.
    In our December 28, 2001 (66 FR 67446), approval, we deferred 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 also revised the required program 
amendment codified at 30 CFR 948.16(jjj) to require, in part, the 
removal of the 25-percent limitation on the expenditure of funds for 
water treatment at CSR 38-2-12.5.d. The State had previously removed 
the 25-percent limitation on the expenditure of funds for water 
treatment from its statute, but had failed to remove the 25-percent 
limitation in its rules.
    On December 28, 2001, we opened a comment period to allow more time 
to consider and provide additional comment on the question of whether 
the State has fully satisfied the requirement at 30 CFR 948.16(lll) 
concerning the adequacy of the State's ABS. That comment period closed 
on March 28, 2002.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
amendment approval criteria of 30 CFR 732.15. If we approve the 
amendment, it will become part of the State program.

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.

Electronic Comments

    Please submit Internet comments as ASCII or Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn: SPATS No. WV-094-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Charleston Field 
Office at (304) 347-7158.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during 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.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal 
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.

[[Page 30338]]

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: April 24, 2002.
George J. Rieger,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-11247 Filed 5-3-02; 8:45 am]
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