[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Rules and Regulations]
[Pages 33884-33888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13456]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-114-FOR; OSM-2008-0010]


West Virginia Regulatory Program

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

ACTION: Interim rule with request for comments.

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[[Page 33885]]

SUMMARY: We are approving, on an interim basis, an amendment to the 
West Virginia regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
West Virginia revised its Surface Coal Mining and Reclamation Act to 
effect changes concerning the special reclamation tax and other issues. 
The tax provisions of the amendment are intended to increase and extend 
the special reclamation tax, and create the Special Reclamation Water 
Trust Fund for the purpose of designing, constructing and maintaining 
water treatment systems on forfeited sites.
    We are approving the reinstatement of the seven cents per ton 
special reclamation tax, its increase to seven and four-tenths cents 
per ton, as well as the creation of the Special Reclamation Water Trust 
Fund, on an interim basis, with our approval becoming effective upon 
publication of this interim rule.

DATES: Effective Date: This rule is effective June 16, 2008. Comment 
Date: We will accept written comments until 4 p.m., local time July 16, 
2008. If requested, we will hold a public hearing on July 11, 2008. We 
will accept requests to speak until 4 p.m., local time on July 1, 2008.

ADDRESSES: You may submit comments by any of the following two methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule has been assigned Docket ID: OSM-2008-0010. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to http://www.regulations.gov and do the following. Click on the 
``Advanced Docket Search'' button on the right side of the screen. Type 
in the Docket ID OSM-2008-0010 and click the ``Submit'' button at the 
bottom of the page. The next screen will display the Docket Search 
Results for the rulemaking. If you click on OSM-2008-0010, you can view 
the proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.
     Mail/Hand Delivery: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, WV 25301. Please 
include the rule identifier (WV-114-FOR) with your written comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2008-0010) for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see ``IV. Public Comment Procedures'' in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: The interim rule and any comments that are submitted may be 
viewed over the Internet at http://www.regulations.gov. Look for Docket 
ID OSM-2008-0010. In addition, you may review copies of the West 
Virginia program, this amendment, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document at the addresses listed below during normal business hours, 
Monday through Friday, excluding holidays. You may also receive one 
free copy of this amendment by contacting OSM's Charleston Field Office 
listed below.

Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, WV 25301, Telephone: (304) 347-7158. E-mail: 
[email protected].
West Virginia Department of Environmental Protection, 601 57th Street, 
SE., Charleston, WV 25304, Telephone: (304) 926-0490.

    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 26508, 
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. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program
II. Description and Submission of the Amendment
III. OSM's Findings
IV. Public Comment Procedures
V. OSM's Decision
VI. 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 and Submission of the Amendment

    By letter dated April 8, 2008, and received electronically on April 
17, 2008 (Administrative Record Number WV-1503), the West Virginia 
Department of Environmental Protection (WVDEP) submitted an amendment 
to its program under SMCRA (30 U.S.C. 1201 et seq.). The amendment 
includes changes to the West Virginia Code of State Regulations (CSR) 
and West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as 
contained in Committee Substitutes for Senate Bills 373 and 751 
concerning a variety of topics including new language regarding 
technical completeness, sediment control, storm water runoff, blasting, 
excess spoil fills, bonding programs, special reclamation tax, water 
quality, seismograph records, and definitions. OSM is publishing, under 
a separate Federal Register notice, the proposed rule and request for 
comments on changes in the amendment that are not specifically 
addressed by this action.
    Committee Substitute for Senate Bill 751 amended Section 22-3-11 of 
the WVSCMRA. As stated in the April 8, 2008, letter transmitting the 
amendment, the revisions contained in Senate Bill 751 related ``* * * 
generally to the special reclamation tax by establishing the Special 
Reclamation Water Trust Fund; continuing and reimposing a tax on clean 
coal mined for deposit into both funds; requiring the Secretary to look 
at alternative programs; and authorizing the Secretary to promulgate 
legislative rules implementing the alternative programs.''

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    Specifically, the amended language relating to the special 
reclamation tax and the Special Reclamation Water Trust Fund reads as 
follows:

Sec.  22-3-11. Bonds; amount and method of bonding; bonding 
requirements; special reclamation tax and funds; prohibited acts; 
period of bond liability.

    (g) The Special Reclamation Fund previously created is 
continued. The Special Reclamation Water Trust Fund is created 
within the State Treasury into and from which moneys shall be paid 
for the purpose of assuring a reliable source of capital to reclaim 
and restore water treatment systems on forfeited sites. The moneys 
accrued in both funds, any interest earned thereon and yield from 
investments by the State Treasurer or West Virginia Investment 
Management Board are reserved solely and exclusively for the 
purposes set forth in this section and section seventeen, article 
one of this chapter. The funds shall be administered by the 
secretary who is authorized to expend the moneys in both funds for 
the reclamation and rehabilitation of lands which were subjected to 
permitted surface mining operations and abandoned after the third 
day of August, one thousand nine hundred seventy-seven, where the 
amount of the bond posted and forfeited on the land is less than the 
actual cost of reclamation, and where the land is not eligible for 
abandoned mine land reclamation funds under article two of this 
chapter. The secretary shall develop a long-range planning process 
for selection and prioritization of sites to be reclaimed so as to 
avoid inordinate short-term obligations of the assets in both funds 
of such magnitude that the solvency of either is jeopardized. The 
secretary may use both funds for the purpose of designing, 
constructing and maintaining water treatment systems when they are 
required for a complete reclamation of the affected lands described 
in this subsection. The secretary may also expend an amount not to 
exceed ten percent of the total annual assets in both funds to 
implement and administer the provisions of this article and, as they 
apply to the Surface Mine Board, articles one and four, chapter 
twenty-two-b of this code.
    (h)(1) For tax periods commencing on and after the first day of 
July, two thousand eight, every person conducting coal surface 
mining shall remit a special reclamation tax as follows: (A) For the 
initial period of twelve months, ending the thirtieth day of June, 
two thousand nine, seven and four-tenths cents per ton of clean coal 
mined, the proceeds of which shall be allocated by the secretary for 
deposit in the Special Reclamation Fund and the Special Reclamation 
Water Trust Fund; (B) an additional seven cents per ton of clean 
coal mined, the proceeds of which shall be deposited in the Special 
Reclamation Fund. The tax shall be levied upon each ton of clean 
coal severed or clean coal obtained from refuse pile and slurry pond 
recovery or clean coal from other mining methods extracting a 
combination of coal and waste material as part of a fuel supply. The 
additional seven-cent tax shall be reviewed and, if necessary, 
adjusted annually by the Legislature upon recommendation of the 
council pursuant to the provisions of section seventeen, article one 
of this chapter: Provided, That the tax may not be reduced until the 
Special Reclamation Fund and Special Reclamation Water Trust Fund 
have sufficient moneys to meet the reclamation responsibilities of 
the state established in this section.

III. OSM's Findings

    Effective upon publication of this interim rule, we are approving 
the revisions to section 22-3-11(g) and (h)(1) of the WVSCMRA, which 
reinstate and increase the Special Reclamation Tax and create the 
Special Reclamation Water Trust Fund on an interim basis. Since these 
revisions increase revenues into the State's alternative bonding system 
and establish a Special Reclamation Water Trust Fund to be used to 
design, construct and maintain water treatment systems on forfeited 
sites, we find that they are no less effective than the Federal 
regulations at 30 CFR 800.11(e). Because our approval of these 
revisions is interim in nature, and in order to satisfy the public 
participation requirements for approval or disapproval of State program 
amendments we will accept comments on the reinstatement of and increase 
in the Special Reclamation Tax and on the creation of the Special 
Reclamation Water Trust Fund in accordance with section IV of this 
Federal Register notice. Following our review of the comments received, 
we will issue a final rule announcing the Director's final decision on 
the revisions to section 22-3-11(g) and (h)(1) of the WVSCMRA that are 
the subject of this interim rule.
    Pursuant to the Administrative Procedure Act at 5 U.S.C. Sec.  
553(b)(3)(B), we find that good cause exists to approve the revisions 
to section 22-3-11(g) and (h)(1) of the WVSCMRA on an interim basis 
without notice and opportunity for comment, because to require notice 
and opportunity for comment now would be contrary to the public 
interest in that it would delay the start of the collection of the 
increased Special Reclamation Tax. Enrolled Committee Substitute for 
Senate Bill 751 becomes effective under State law on July 1, 2008, and 
the public interest in the accomplishment of prompt and thorough 
reclamation of bond forfeiture sites, including water treatment of 
discharges therefrom, will be adversely affected if the 7.4 cent per 
ton Special Reclamation Tax cannot be collected on and after that 
effective date. In any event, as explained above, the public will have 
an opportunity to comment on the reinstatement of and increase in the 
Special Reclamation Tax, and on the creation of the Special Reclamation 
Water Trust Fund, before we make a final decision.

IV. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether these amendments satisfy the applicable program 
approval criteria of 30 CFR 732.15. If we approve these revisions, they 
will become part of the West Virginia program.

Written Comments

    Send your written comments to OSM at one of the addresses given 
above. Your comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We may not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES) or sent to an address other than those 
listed above (see ADDRESSES).

Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (Eastern time), 
on July 1, 2008. If you are disabled and need reasonable accommodation 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. 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 a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the 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

[[Page 33887]]

everyone scheduled to speak and others present in the audience who wish 
to speak, have been heard.

Public Meeting

    If there is only limited interest in participating in a public 
hearing, 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 will be open to the public and, if possible, 
we will post notices of meetings at the locations listed under 
ADDRESSES. We will make a written summary of each meeting a part of the 
Docket for this rulemaking.

V. OSM's Decision

    Based on the above findings, we are approving on an interim basis, 
the specific revisions outlined above to the West Virginia program as 
provided to us on April 17, 2008. To implement this decision, we are 
amending the Federal regulations at 30 CFR Part 948, which codify 
decisions concerning the West Virginia program. We find that good cause 
exists under 5 U.S.C. 553(d)(3) to make this interim rule effective 
immediately. Section 503(a) of SMCRA requires that the State's program 
demonstrate that the State has the capability of carrying out the 
provisions of the Act and meeting its purposes. Making this rule 
effective immediately will expedite that process. SMCRA requires 
consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on an analysis of the State submission.

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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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 previously had a special reclamation tax of $0.07 per ton of 
clean coal mined which expired on September 1, 2006. The tax was used 
to reclaim bond forfeiture sites in the State. On March 27, 2008, the 
Governor signed into law a bill that reinstated and increased the 
special reclamation tax to $0.074 per ton for the period July 1, 2008, 
through June 30, 2009 and created the Special Reclamation Water Trust 
Fund for the purpose of designing, constructing and maintaining water 
treatment systems at bond forfeiture sites. Mined coal would also be 
subject to an additional tax of $0.07 or a total tax of $0.144 per ton. 
The combined tax rate of $0.144 will yield approximately $10.7 million 
in additional revenue for bond forfeiture reclamation, including water 
treatment, during this 12-month period. The tax is payalabe by all coal 
operators mining coal in West Virginia, regardless of size.

Small Business Regulatory Enforcement Fairness Act

    Based upon the above analysis and discussion, we have determined 
that 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,

[[Page 33888]]

productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. This determination is based 
upon the analysis performed under various laws and executive orders for 
the counterpart Federal regulations.

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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 22, 2008.
Thomas D. Shope,
Regional Director, Applachian Region.

0
For the reasons set out in the preamble, 30 CFR part 948 is amended as 
set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for part 948 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 948.15 is amended by adding a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of        Citation/description
 Original amendment submission    publication of        of approved
             date                   final rule           provisions
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                              * * * * * * *
April 17, 2008................  June 16, 2008....  W. Va. Code 22-3-
                                                    11(g)
                                                   (interim approval),
                                                    11(h)(1)
                                                   (interim approval).
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[FR Doc. E8-13456 Filed 6-13-08; 8:45 am]
BILLING CODE 4310-05-P