West Virginia Regulatory Program, 37996-38000 [2011-16261]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Rules and Regulations]
[Pages 37996-38000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16261]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-117-FOR; OSM-2011-0006]


West Virginia Regulatory Program

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

ACTION: Interim rule with public comment period and opportunity for 
public hearing.

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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. West Virginia submitted proposed permit fee revisions to the 
Code of West Virginia as authorized by House Bill 2955 that passed 
during the State's regular 2011 legislative session. In addition, West 
Virginia is amending its Code of State Regulations (CSR) to provide for 
the establishment of a minimum incremental bonding rate as authorized 
by Senate Bill 121. The changes, due to the passage of House Bill 2995, 
will increase the filing fee for the State's surface mining permit to 
$3,500 and establish various fees for other permitting actions. Senate 
Bill 121 authorizes regulatory revisions which includes, among other 
things, the establishment of a minimum incremental bonding rate of 
$10,000 per increment at CSR 38-2-11.4.a.2. Because these revisions 
have an effective date of June 16, 2011, we are approving the permit 
fees and the minimum incremental bonding rate on an interim basis, with 
our approval taking effect upon publication of this interim rule. This 
rule also requests public comments and provides an opportunity for a 
public hearing on the proposed statutory and regulatory revisions 
described herein. The other State regulatory revisions submitted by 
WVDEP with this amendment will be announced in another Federal Register 
notice and follow our normal program amendment procedures.

DATES: We will accept written comments on this amendment until 4 p.m. 
EDT, on July 29, 2011. If requested, we will hold a public hearing on 
the amendment on July 25, 2011. We will accept requests to speak until 
4 p.m. EDT, on July 14, 2011.

ADDRESSES: You may submit comments, identified by ``WV-117-FOR; Docket 
ID: OSM-2011-0006'' by any of the following two methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The rule has been assigned Docket ID OSM-2011-0006. If you would like 
to submit comments

[[Page 37997]]

through the Federal eRulemaking Portal, go to https://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.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2011-0006) 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 https://www.regulations.gov. 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, E-mail: 
chfo@osmre.gov.
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. E-mail: 
chfo@osmre.gov.

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 25, 2011, and received by OSM on May 2, 2011 
(Administrative Record Number WV-1557), 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.
    Enrolled Committee Substitute for House Bill No. 2955 (HB 2955) 
includes revisions to the West Virginia Surface Coal Mining and 
Reclamation Act (WVSCMRA). HB 2955 was adopted by the West Virginia 
Legislature on March 18, 2011, and approved by the Governor on April 5, 
2011. HB 2955 increased the filing fee for the State's surface mining 
permit to $3,500, the permit renewal fee to $3,000, and established a 
notice of intent to prospect fee of $2,000, a significant permit 
revision fee of $2,000, a permit amendment fee of $550, a permit 
transfer fee of $1,500, a permit assignment fee of $1,500, and an 
inactive status approval fee of $2,000. HB 2955 also proposes to change 
``director'' to ``secretary'' in accordance with a past reorganization 
of the WVDEP and make other non-substantive changes.
    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, among other 
things, provide for a minimum incremental bonding rate of $10,000 per 
increment at CSR 38-2-11.4.a.2. Section 22-3-11(a) of WVSCMRA currently 
requires mining operators to furnish a minimum bond of $10,000, 
regardless of acreage. Under the revised provision, an operator will 
have to post a minimum bond of $10,000 for each increment that is to be 
mined. Except for the regulatory revision at subdivision 11.4.a.2 that 
provides for a minimum incremental bonding rate, the other regulatory 
revisions will be acted upon following our normal program amendment 
procedures.
    Because these changes have an effective date of June 16, 2011, the 
WVDEP requested that these revisions be approved by OSM on an interim 
basis and take effect immediately upon publication of this interim rule 
in the Federal Register. OSM will publish, under a separate Federal 
Register notice, a proposed rule and request comments on those other 
regulatory changes in the proposed State amendment that are not 
specifically addressed by this action.
    The full text of the program amendment is available for you to read 
at the locations listed above under ADDRESSES.
    Specifically, West Virginia requests that the following statutory 
and regulatory revisions identified below be approved on an interim 
basis.
    1. WVSCMRA 22-3-7(b) Notice of Intent to Prospect. Notice of 
intention to prospect shall * * * be accompanied by * * * a filing fee 
of $2,000. This proposed State provision falls under the Federal 
provisions at section 512 of SMCRA and 30 CFR Part 772.
    2. WVSCMRA 22-3-8(a)(4) New Permit. Each application for a new 
surface mining permit * * * shall be accompanied by a fee of $3,500. 
The State's permit fee was increased from $1,000 to $3,500. This 
proposed State revision falls under the Federal provisions at section 
507(a) of SMCRA and 30 CFR 777.17.
    3. WVSCMRA 22-3-19(a)(4) Permit Renewal. Any renewal application 
for an active permit shall be * * * accompanied by a filing fee of 
$3,000. The State's permit renewal fee was

[[Page 37998]]

increased from $2,000 to $3,000. This proposed State revision falls 
under the Federal provisions at section 507(a) of SMCRA and 30 CFR 
777.17.
    4. WVSCMRA 22-3-19(b)(2) Significant Permit Revision. An 
application for a significant revision of a permit * * * shall be 
accompanied by a filing fee of $2,000. The significant permit revision 
fee is new and was added to the State's statutory provisions. This 
proposed State revision falls under the Federal provisions at section 
507(a) of SMCRA and 30 CFR 777.17.
    5. WVSCMRA Code 22-3-19(b)(3) Permit Amendment. An application for 
a new area is subject to all procedures and requirements applicable to 
applications for original permits * * * and a filing fee of $550. The 
permit amendment fee is new and was added to the State's statutory 
provisions. This proposed State revision falls under the Federal 
provisions at section 507(a) of SMCRA and 30 CFR 777.17.
    6. WVSCMRA Code 22-3-19(d) Permit Transfer or Assignment of Rights. 
No transfer, assignment or sale of the rights granted under any permit 
* * * may be made without the prior written approval of the secretary, 
application for which shall be accompanied by a filing fee of $1,500 
for transfer or $1,500 for assignment. The permit transfer and 
assignment of rights fees are new and were added to the State's 
statutory provisions. These proposed State revisions fall under the 
Federal provisions at section 507(a) of SMCRA and 30 CFR 777.17.
    7. WVSCMRA Code 22-3-19(e) Inactive Status Fee. Each request for 
inactive status shall be submitted on forms prescribed by the 
secretary, shall be accompanied by a filing fee of $2,000, and shall be 
granted in accordance with the procedure established in the Surface 
Mining and Reclamation Rule. The inactive status fee is new and was 
added to the State's statutory provisions. This proposed State revision 
falls under the provisions at section 507(a) of SMCRA and 30 CFR 
777.17.
    8. CSR 38-2-11.4.a.2 Incremental Bonding. If incrementally bonded, 
the minimum bond shall be $10,000 per increment. The proposed revision, 
which establishes a minimum incremental bonding rate, is new and was 
added to subdivision 11.4.a.2. This proposed State regulatory revision 
falls under the Federal bonding provisions at 30 CFR 800.14.

III. OSM's Findings

    Effective upon publication of this interim rule, we are approving, 
on an interim basis, the revisions to Subsections 22-3-7(b), 22-3-
8(a)(4), 22-3-19(a)(4), 22-3-19(b)(2), 22-3-19(b)(3), 22-3-19(d), and 
22-2-19(e) of the WVSCMRA, which increase the filing fee for the 
surface mining permit to $3,500, the permit renewal fee to $3,000, and 
which establish a notice of intent to prospect fee of $2,000, a 
significant permit revision fee of $2,000, a permit amendment fee of 
$550, a permit transfer fee of $1,500, a permit assignment fee of 
$1,500, and an inactive status approval fee of $2,000.
    Section 507(a) of SMCRA and 30 CFR 777.17 provide that a permit 
application must be accompanied by a fee that is determined by the 
regulatory authority. The fee cannot exceed the actual or anticipated 
cost of reviewing, administering, and enforcing the State permit, and 
it can be paid over the term of the permit. We find that the proposed 
fees for the various permitting actions mentioned above are in 
accordance with section 507(a) of SMCRA and do not render the West 
Virginia program less effective than the Federal requirements at 30 CFR 
777.17, and can be approved. Further, the notice of intention to 
prospect fee is in accordance with section 512 of SMCRA and no less 
effective than the Federal coal exploration requirements at 30 CFR Part 
772, and can be approved.
    In addition, we are approving, on an interim basis, the regulatory 
revision at CSR 38-2-11.4.a.2 which provides for a minimum incremental 
bonding rate of $10,000 per increment. We find that the State's 
proposed incremental bonding rate is no less effective than the Federal 
bonding requirements at 30 CFR 800.14, and can be approved.
    Because our approval of these revisions is on an interim basis, and 
in order to satisfy our state program amendment public participation 
requirements at 30 CFR 732.17(h), we will accept comments on these 
proposed fee changes and the minimum incremental bonding rate in 
accordance with Section IV of this Federal Register notice. Following 
our review of the comments received, we will issue a final rule 
announcing OSM's final decision on the statutory and regulatory 
revisions that are the subject of this interim rule.
    Pursuant to the Administrative Procedure Act at 5 U.S.C. 
553(b)(3)(B), we find that good cause exists to approve the statutory 
revisions at Subsections 22-3-7(b), 22-3-8(a)(4), 22-3-19(a)(4), 22-3-
19(b)(2), 22-3-19(b)(3), 22-3-19(d), and 22-3-19(e) of the WVSCMRA and 
the regulatory revision at CSR 38-2-11.4.a.2 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 the permit fees and the incremental bonding rate are 
due to take effect on June 16, 2011, and it would delay the start of 
the collection of the permit fees and the incremental bonding rate.
    State permit fees provide a source of revenue for the State to 
administer its permanent regulatory program. It is in the public's 
interest that these increased and new permit fees be implemented 
without further delay. Any delay in the implementation of these fees 
may require the State to fund the program with general revenue funds 
that may be needed for other public purposes. States are encouraged to 
make the funding of their regulatory programs self sufficient through 
the use of permit and other fees imposed on the mining industry.
    In addition, bonds are used by the State to perform bond forfeiture 
reclamation. Rather than posting the total bond amount for each 
operation, more operators are using incremental bonding to reduce the 
total amount of bonds that they are required to furnish. To ensure that 
the incremental bond will be sufficient to cover the full cost of 
reclamation in the event of forfeiture, the State is requiring 
operators to post a minimum bond of $10,000 per increment. It is in the 
public's interest that the minimum incremental bonding rate becomes 
effective immediately to ensure that the State will have sufficient 
revenue to cover the cost of any bond forfeiture reclamation that may 
be required under the State's alternative bonding system.
    As explained above, the public will still have an opportunity to 
comment on these proposed changes before we announce a final decision 
on them in the Federal Register at a later date. In addition, the other 
State program amendment revisions that are not specifically addressed 
by this action will be announced in a separate Federal Register notice.

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

[[Page 37999]]

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. (local time), on 
July 14, 2011. If you are disabled and need reasonable accommodations 
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 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. 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 May 2, 2011. 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. In addition, SMCRA 
requires consistency of State and Federal mining and reclamation 
standards.

VI. 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 regulation.

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

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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 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. 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 regulations.

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, Federal, State, or local government agencies, or geographic 
regions; 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 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 24, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.

    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
------------------------------------------------------------------------
 
                              * * * * * * *
May 2, 2011...................  June 29, 2011....  W. Va. Code 22-3-
                                                    7(b); 8(a)(4);
                                                    19(a)(4); 19(b)(2);
                                                    19(b)(3); 19(d); and
                                                    19(e) (interim
                                                    approvals).
                                                   CSR 38-2-11.4.a.2
                                                    (interim approval).
------------------------------------------------------------------------

[FR Doc. 2011-16261 Filed 6-28-11; 8:45 am]
BILLING CODE 4310-05-P