[Federal Register Volume 68, Number 42 (Tuesday, March 4, 2003)]
[Rules and Regulations]
[Pages 10178-10179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4969]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-088-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We are correcting our decision on an amendment submitted by 
the State of West Virginia as a modification to its permanent 
regulatory program under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). On May 1, 2002, we published our decision 
on the provisions submitted by West Virginia. We are correcting our 
decisions on four of the State's responses that were intended to 
satisfy required program amendments. The decisions being corrected 
concern the use of an unjust hardship criterion in support of granting 
temporary relief of an order, economic feasibility related to appeals 
to the Environmental Quality Board concerning the West Virginia Surface 
Coal Mining and Reclamation Act (WVSCMRA) and, water supply replacement 
waivers, and coal removal incidental to development. This correction is 
intended to comply with the decision of the United States District 
Court for the Southern District of West Virginia.

EFFECTIVE DATE: March 4, 2003.

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

SUPPLEMENTARY INFORMATION:

Background

    By letter dated November 30, 2000 (Administrative Record Number WV-
1189), the West Virginia Department of Environmental Protection (WVDEP) 
sent us an amendment to its program, under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment included numerous attachments and was submitted in 
response to several required program amendments codified in the Federal 
regulations at 30 CFR 948.16.
    We announced receipt of the proposed amendment in the January 3, 
2001, Federal Register (66 FR 335-340), and provided for public comment 
until February 28, 2001.

[[Page 10179]]

    By letter dated February 26, 2002, WVDEP sent us a status report 
regarding the required program amendments codified at 30 CFR 948.16 
(Administrative Record Number WV-1276). The report included 14 
attachments, and outlined actions taken in an attempt to satisfy the 
required program amendments. The actions include proposed policies, 
rules and laws, form changes, and referrals to legal staff. In 
addition, WVDEP stated that law and rule changes that would satisfy 
some of the required amendments would be proposed during the 2002 
regular legislative session, and that none of the proposed revisions 
would be implemented without OSM approval. In the end, the State failed 
to pass legislation on the required program amendments codified at 30 
CFR 948.16(nnn) concerning the use of an unjust hardship criterion in 
support of granting temporary relief of an order, (ooo) concerning 
economic feasibility related to appeals to the Environmental Quality 
Board concerning the WVSCMRA, and (oooo) concerning coal removal 
incidental to development.
    By letter dated March 8, 2002, WVDEP sent us revisions to two of 
the attachments it had sent us in its February 26 letter 
(Administrative Record Number WV-1280). The March 8, 2002, letter also 
included one new attachment intended to address the required amendment 
at 30 CFR 948.16(sss) relating to water supply replacement waivers.
    In the March 25, 2002, Federal Register (67 FR 13577-13585), we 
reopened the comment period to provide the public an opportunity to 
review and comment on the topics discussed in the January 15, 2002, 
meeting; WVDEP's February 26 and March 8, 2002, submittals; and related 
information that we provided to WVDEP (Administrative Record Number WV-
1285). The comment period closed on April 9, 2002.
    In our May 1, 2002, decision (67 FR 21904) on these amendments, we 
removed all of the required amendments, including the required 
amendments at 30 CFR 948.16(nnn), (ooo), and (oooo) where the State 
failed to take legislative action, and the required amendment at 30 CFR 
948.16(sss) where the State committed to implementing its program 
consistent with the Federal law and regulations despite the existing 
State language being inconsistent with Federal provisions.

Need for the Correction

    On January 9, 2003, the United States District Court for the 
Southern District of West Virginia in West Virginia Highlands 
Conservancy v. Norton, Civil Action No. 2:00-1062 (S.D. W.Va. Jan.9, 
2003), vacated OSM's decisions to remove the required program 
amendments codified in the Federal regulations at 30 CFR 948.16(nnn), 
(ooo), (sss), and (oooo).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR 948.16 to reinstate the required program amendments at (nnn), 
(ooo), (sss), and (oooo) that we deleted in the May 1, 2002, Federal 
Register. We are requiring that within 60 days of publication of this 
notice, West Virginia must submit either proposed amendments or 
descriptions of amendments together with timetables for enactment that 
will satisfy these required amendments.

Administrative Procedure Act

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

    Dated: January 28, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 948 is amended 
as set forth below:

PART 948--WEST VIRGINIA

    1. The authority citation for Part 948 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.
    2. Section 948.16 is amended by adding paragraphs (nnn), (ooo), 
(sss), and (oooo) to read as follows:


Sec.  948.16  Required regulatory program amendments.

* * * * *
    (nnn) By May 5, 2003, 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 Sec.  22B-1-7(d) to remove 
unjust hardship as a criterion to support the granting of temporary 
relief from an order or other decision issued under Chapter 22, Article 
3, of the West Virginia Code.
    (ooo) By May 5, 2003, 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 Sec.  22B-1-7(h) by removing 
reference to Article 3, Chapter 22.
* * * * *
    (sss) By May 5, 2003, 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 Sec.  38-2-14.5(h) and 
Sec.  22-3-24(b) to clarify that the replacement of water supply can 
only be waived under the conditions set forth in the definition of 
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
* * * * *
    (oooo) By May 5, 2003, West Virginia must submit either a proposed 
amendment or a description of an amendment to be proposed, together 
with a timetable for adoption, to remove CSR Sec.  38-2-23.
* * * * *

[FR Doc. 03-4969 Filed 3-3-03; 8:45 am]
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