[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Proposed Rules]
[Pages 67637-67640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28441]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[SATS No. WV-118-FOR; Docket ID OSM-2011-0009]


West Virginia Regulatory Program

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

ACTION: Proposed rule with public comment period and opportunity for 
public hearing on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia permanent regulatory program under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). On May 2, 2011, the 
West Virginia Department of Environmental Protection (WVDEP) submitted 
a program amendment to OSM that includes both statutory and regulatory 
revisions. That portion of the amendment dealing with changes to West 
Virginia's Surface Mining Reclamation Regulations is the subject of 
this notice.

DATES: We will accept written comments on this amendment until

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4 p.m. EDT, on December 2, 2011. If requested, we will hold a public 
hearing on the amendment on November 28, 2011. We will accept requests 
to speak until 4 p.m. EDT, on November 17, 2011.

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-2011-0009. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to http://www.regulations.gov and follow the instructions.
     Mail/hand Delivery: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 
25301.
    Please include the rule identifier (WV-118-FOR) with your written 
comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2011-0009) 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 proposed rule and any comments that are submitted may 
be viewed over the internet at http://www.regulations.gov. Look for 
Docket ID OSM-2011-0009. 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, West Virginia 25301, Telephone: (304) 347-7158, Email: 
[email protected].
West Virginia Department of Environmental Protection, 601 57th Street, 
SE., Charleston, West Virginia 25304, Telephone: (304) 926-0490.

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

Morgantown Area Office, Office of Surface Mining Reclamation and 
Enforcement, 604 Cheat Road, Suite 150, Morgantown, West Virginia 
26508, Telephone: (304) 291-4004. (By Appointment Only).
Beckley Area Office, Office of Surface Mining Reclamation and 
Enforcement, 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. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description of the Amendment
III. Description of West Virginia's Proposed Action
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. Description and Submission of the Amendment

    By letter dated April 25, 2011, and received by OSM on May 2, 2011 
(Administrative Record Number WV-1561), the WVDEP submitted an 
amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). The 
proposed amendment consists of both statutory and regulatory revisions. 
However, this notice only addresses that portion of the amendment that 
concerns revisions to West Virginia's Surface Mining Reclamation 
Regulations at Code of State Regulations (CSR) Title 38, Series 2.
    Enrolled Committee Substitute for Senate Bill No. 121 (SB 121) 
passed the West Virginia Legislature on March 18, 2011, and was signed 
by the Governor on March 30, 2011. SB 121 authorized WVDEP to 
promulgate several revisions to its Surface Mining Reclamation 
Regulations. SB 121 authorizes regulatory revisions which codifies an 
Emergency Rule filed on December 2009 which relates to trust funds and 
annuities; clarifies the format and information necessary for complete 
application submittal and clarification on the renewal process to take 
into account WVDEP's electronic permit filing processes; modifies the 
provision that an approved person must be capable and maintain the 
capability of submitting maps, plans and all other technical data in an 
electronic format proscribed by the Secretary; modifies the provision 
that pre-subsidence surveys shall be confidential and only used for 
evaluating damage relating to subsidence; clarifies that bonding for a 
permit in inactive status shall remain in effect for the life of the 
operation; and modifies the provision that the Secretary shall provide 
email notice of the issuance of a show cause order to members of the 
public who have subscribed to the Secretary's email notification 
service and otherwise provide notice to any person whose citizen 
complaint has resulted in the issuance of any violation that led to the 
issuance of a show cause order.

III. Description of West Virginia's Proposed Action

1. Permit Application Requirements--CSR 38-2-3.1.c.4

    The State proposes adding the words ``if available'' before ``MSHA 
number'' to require the submission of the MSHA number by the applicant 
if it is available. This proposed State revision falls under the 
Federal provisions at 30 CFR 778.12(c) and sections 507, 508, 510, and 
515 of SMCRA.

2. Permit Application Requirements--CSR 38-2-3.1.d

    The State is proposing to add the language ``either in the 
application or in an electronic database accessible to the agency which 
has been updated within three months of submittal'' after the word 
``List'' to indicate the kinds of ownership or control information that 
is to be included in the permit application. This proposed State 
revision falls under the Federal provisions at 30 CFR 778.12 and 
sections 507, 508, 510, and 515 of SMCRA.

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3. Permit Application Requirements--CSR 38-2-3.1.k

    The State is proposing to add the language ``either in the 
application or in an electronic database accessible to the agency which 
has been updated within three months of submittal'' after ``List'' to 
indicate the kinds of violation information that is to be included in 
the permit application. This proposed State revision falls under the 
Federal provisions at 30 CFR 778.12 and 778.14 and sections 507, 508, 
510, and 515 of SMCRA.

4. Advertisement of Permit--CSR 38-2-3.2.a

    The State is proposing to add the word ``technically'' and removing 
the word ``administratively'' before ``complete'' to indicate that a 
permit application must be technically complete, not administratively 
complete, to begin the advertisement. This proposed State revision 
falls under the Federal provisions at 30 CFR 773.6 and sections 506, 
507, and 513 of SMCRA.

5. Maps for Permit--CSR 38-2-3.4.b

    The State is proposing to add the language ``in a format proscribed 
by the Secretary and either be'' on paper 30 by 42 inches after the 
word ``submitted'' and ``or, if electronic, be capable of being printed 
on paper of this size.'' after the word ``less'' to allow for the 
submission of paper or electronic maps in a format prescribed by the 
Secretary. This proposed State revision falls under the Federal 
provisions at 30 CFR 779.24 and 783.24 and sections 506 and 507 of 
SMCRA.

6. Subsidence Control Plan--CSR 38-2-3.12.a.2.B

    The State is proposing to add new language in this subsection that 
will provide ``All surveys'' of the condition of all non-commercial 
buildings or residential dwellings and structures related thereto 
``shall be confidential and only used for evaluating damage relating to 
subsidence. The Secretary shall develop a procedure for assuring 
surveys shall remain confidential.'' This proposed State revision falls 
under the Federal provisions at 30 CFR 784.20 and sections 507(a), 
508(a), 510(b), 515(b), and 516 of SMCRA.

7. Certifications by Professional Surveyors--CSR 38-2-3.15.a; 3.15.b.1; 
4.2.a.7; 4.10.a.1; 4.12; 5.4.d.2; 5.4.d.3; 5.4.e.1; 5.4.e.3; 7.5.b.11; 
7.5.g.1.A; 7.5.g.2.A

    Throughout the regulations the words ``licensed land'' have been 
deleted and the word ``professional'' added before ``surveyor'' to 
clarify that surveyors certified and licensed in West Virginia are 
considered to be professional surveyors. The proposed State revisions 
fall under the Federal provisions at 30 CFR 780.14(c), 780.25, 780.37, 
784.23, 784.16, 784.24, 816/817.46(b), 816/817.49(a)(11), and 816/
817.151 and sections 507(b)(14) and 515(b)(10)(B)(ii) of SMCRA.

8. Approved Persons--CSR 38-2-3.15.b.3

    The State is proposing to add new language at the end of the 
paragraph to read: ``Furthermore, any person seeking an approval must 
be capable and maintain the capability of submitting maps, plans and 
all other technical data in an electronic format proscribed by the 
Secretary.'' Although there are no specific Federal requirements 
governing approved persons, these proposed revisions fall under the 
provisions at 30 CFR 780.14(c) and sections 507(b)(14) and 
515(b)(10)(B)(ii) of SMCRA.

9. Bonding: Trust Fund or Annuity--CSR 38-2-11.3.f

    All of subsection 11.3.f is new and can be viewed in its entirety 
at http://www.regulations.gov. Under the proposed rule, a permittee, 
with the approval of the Secretary, may establish a trust fund, annuity 
or both to guarantee treatment of long-term postmining pollutional 
discharges in lieu of posting a bond. The trust fund or annuity will be 
subject to certain conditions. The proposed revisions fall under the 
Federal provisions at 30 CFR 800.4, 800.11, 800.13, 800.14, 800.16, and 
800.17, and sections 509 and 519 of SMCRA.

10. Inactive Status Procedures--CSR 38-2-14.11.h

    Under the proposed rule, the Secretary may grant inactive status 
for a term longer than those set forth currently in (e), (f), and now 
(g). This will allow the Secretary to grant inactive status for coal 
refuse sites to exceed a period of 10 years. New language is also being 
added to provide that ``Bonding in this manner shall remain in effect 
for the life of the operation.'' This will require the permittee of an 
operation that receives inactive status approval to furnish and 
maintain a full-cost reclamation bond for the life of the operation. 
These proposed revisions fall under the Federal provisions at 30 CFR 
816 and 817.131 and sections 509, 510, and 515 of SMCRA.

11. Show Cause Orders--CSR 38-2-20.4.a

    The State is proposing to add new language to provide that ``The 
Secretary shall provide email notice of the issuance of a show cause 
order to members of the public who have subscribed to the Secretary's 
email notification service and otherwise provide notice to any person 
whose citizen's complaint has resulted in the issuance of any violation 
that led to the issuance of the show cause order.'' This is to ensure 
that citizens who subscribe to the Secretary's email notification 
system get notified of all show cause orders, and any citizen whose 
complaint resulted in an enforcement action that led to a show cause 
notice is also notified. These proposed revisions fall under the 
Federal provisions at 30 CFR 843.14 and sections 521, 525, and 526 of 
SMCRA.

IV. 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 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the West Virginia program.

Written Comments

    Send your written comments to OSM at one of the addresses given 
above. Your written 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, email 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. (local time), on 
November 17, 2011. If you are disabled and need special accommodations 
to attend a

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

Public Meeting

    If there is limited interest in participation 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 Administrative 
Record.

V. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSM for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 27, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2011-28441 Filed 11-1-11; 8:45 am]
BILLING CODE 4310-05-P