West Virginia Regulatory Program, 70972-70975 [2020-23214]

Agencies

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

[Federal Register Volume 85, Number 216 (Friday, November 6, 2020)]
[Rules and Regulations]
[Pages 70972-70975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23214]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-119-FOR (Interim) OSM 2012-0013; WV-121-FOR; OSM-2013-0010 S1D1S 
SS08011000 SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving 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 is 
submitting a proposed amendment to revise the West Virginia Surface 
Coal Mining and Reclamation Act (WVSCMRA) by creating a new section 
relating to the award of attorney fees and costs by the Surface Mine 
Board. On July 11, 2012, OSMRE on an interim basis, approved statutory 
amendments (WV-119) to the West Virginia regulatory program under 
SMCRA. West Virginia revised the WVSCMRA to effect changes concerning 
the special reclamation tax and apportionment of this tax.

DATE: The effective date is December 7, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Director, 
Charleston Field Office, Telephone: (412) 937-2827. Email: 
[email protected].


SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program
II. Submission of the Amendments
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

I. Background on the West Virginia Program

    Section 503(a) of the Act (30 U.S.C. 1253(a)) 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 State program includes, among other 
things, State laws and regulations that govern surface coal mining and 
reclamation operations in accordance with the Act and consistent with 
the Federal regulations. 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. Submission of the Amendments

    By letter dated and received by OSMRE on September 11, 2013 
(Administrative Record No. WV-1584), the West Virginia Department of 
Environmental Protection (WVDEP) submitted an amendment to revise 
WVSCMRA. Enrolled Senate Bill 497 created a new section in the West 
Virginia Code, designated as Sec.  22-3-33, relating to the award of 
attorney fees and costs by the Surface Mine Board (SMB), which replaced 
the Reclamation Board of Review (RBR), and Courts in appeals from 
actions taken by WVDEP under the approved State surface mining program.
    In 1994, the West Virginia Legislature adopted House Bill 4065 
(Administrative Record No. WV-933). This bill deleted the provisions 
dealing with the RBR and replaced them in another Chapter and Article 
of the West Virginia Code with provisions establishing the current SMB, 
which performs the same functions formerly performed by the RBR. OSMRE 
approved the provisions establishing the SMB on February 21, 1996, (61 
FR 6511) (Administrative Record No. WV-1022).
    On April 27, 2012, West Virginia submitted a program amendment, WV-
119-FOR, to revise its WVSCMRA to effect changes concerning the special 
reclamation tax and apportionment of this tax. This amendment was 
intended to increase and extend the special reclamation tax. Moreover, 
a specific portion of this tax was allocated to the Special Reclamation 
Water Trust Fund for the purpose of designing, constructing and 
maintaining water treatment systems on forfeited mine sites. We 
approved the reinstatement of the special reclamation tax, its increase 
to twenty-seven and nine-tenths cents per ton of clean coal mined, as 
well as fifteen cents of the amount collected allocated for deposit to 
the Special Reclamation Water Trust Fund on a temporary basis. OSRME's 
approval took effect upon publication of this interim rule in the 
Federal Register on July 11, 2012 (77 FR 40793) (Administrative Record 
No. WV-1583).

III. OSMRE's Findings

A. WV-121-FOR: WVSCMRA Sec.  22-3-33--Award of Attorney Fees, Costs, 
and Expenses.

    A new section is created in the West Virginia Code, designated as 
Sec.  22-3-33 to award attorney fees and costs by the SMB and courts of 
appeals from actions taken by the WVDEP under the approved State 
surface mining program. The SMB or the court may authorize an award to 
the petitioner the amount of cost and expenses, including attorney 
fees.
    This action is being taken due to the deletion of State statutory 
provisions from the approved State program which provided that any 
person involved in any administrative or judicial proceeding is 
entitled to reimbursement of all costs and expenses, including attorney 
fees, incurred by his participation in proceedings as determined by the 
SMB or State court.
    We find the proposed State statutory revisions, as amended, to be 
no less effective than the Federal requirements at 43 CFR 4.1295 and no 
less stringent than section 525(e) of SMCRA (30 U.S.C. 1275), which 
states that costs and expenses, including attorney fees that are 
reasonably incurred may be awarded, and can be approved.

B. WV-119-FOR: WVSCMRA Sec.  22-3-11(h)(1)--Special Reclamation Tax

    Subsection 22-3-11(h)(1) of the WVSCMRA is substantively amended by 
increasing the amount of the special reclamation tax to twenty-seven 
and nine-tenths cents per ton of clean coal mined. The former special 
reclamation tax, effective as of July 1, 2009, required remittance of 
fourteen and four-tenths cents per ton of clean coal mined; the

[[Page 70973]]

collection of this tax is eliminated and replaced with the 
aforementioned amount. Additionally, the amended language requires 
fifteen cents per ton of the collected twenty-seven and nine-tenths 
cents per ton, be deposited in the Special Reclamation Water Trust Fund 
(the Fund). Historically, although not codified, WVDEP allocated three 
cents per ton of clean coal mined to finance the Fund, resulting in a 
severely underfunded account at the time. It is forecasted that the 
imposition of the new rate enumerated in Senate Bill 579 will ease the 
strain placed on the Fund going forward.
    Formatting and style changes have been effectuated via Senate Bill 
579. Former paragraph (h)(1) is revised to add a caption entitled: 
Rate, deposits and review; additionally, the paragraph has been 
segregated to add four subparts that incorporate all the former 
language.
    This amendment, was approved on a temporary basis in the Federal 
Register on July 11, 2012 (77 FR 40793) with an effective date of July 
11, 2012. As amended, we find the proposed bonding revisions to be 
consistent with and no less effective than the Federal provisions at 30 
CFR 800.11(e) and 800.14, and no less stringent than sections 509 and 
519 of SMCRA (30 U.S.C. 1259 and 1269), and therefore, they can be 
approved on a permanent basis.

IV. Summary and Disposition of Comments

WV-121-FOR--Award of Attorney Fees, Costs and Expenses

Public Comments
    We asked for public comments on the amendment, but none were 
received.
Federal Agency Comments
    In accordance with 30 CFR 732.17(h)(11)(i) and (ii) and section 
503(b) of SMCRA (30 U.S.C. 1253(b)), on May 27, 2014, OSMRE requested 
comments on the State's program amendment dated September 11, 2013, 
from those agencies with an actual or potential interest in the West 
Virginia program (Administrative Record No. WV-1586).
    By letter received by OSMRE dated June 27, 2014 (Administrative 
Record No. WV-1590), the Mine Safety and Health Administration (MSHA) 
responded that it had no comments on the proposed changes to the 
State's statutes as written.
    By letter received by OSMRE dated June 20, 2014 (Administrative 
Record No. WV-1594), the Natural Resources Conservation Service (NRCS) 
responded that it had no comments on the amendment. It stated that, 
while the surface coal mining industry needed to be accountable to the 
principles of the WVSCMCA, the industry should not be harassed with 
claims brought in bad faith.

WV-119-FOR --Bond Forfeiture Special Reclamation Tax

    By letter dated July 7, 2011 (Administrative Record No. 1564), the 
NRCS responded that it had no comments regarding the proposed changes 
to the bonding requirements in this amendment.
    By letter received on August 19, 2011 (Administrative Record No. 
1565), the Army Corp of Engineers (COE) responded to our request for 
comments. The COE responded that they have no comments regarding the 
proposed changes to the bonding requirements at this time.
Environmental Protection Agency (EPA) Comments and Concurrence
    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we 
are required to solicit comments and get a written concurrence from EPA 
for those provisions of the program amendment that relate to air or 
water quality standards issued under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.) OSMRE has determined that none of the State revisions pertained 
to air or water quality standards; therefore, EPA's concurrence was not 
requested on this amendment. By letter received by OSMRE dated July 24, 
2014 (Administrative Record No. 1595), the EPA acknowledged that it had 
no comments on WV-121-FOR. EPA concurrence was not requested for WV-
119-FOR as it does not relate to air or water quality standards.
State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)
    Under Federal regulations at 30 CFR 732.17(h)(4), we are required 
to solicit comments from the SHPO and the ACHP on amendments that may 
have an effect on historic properties. Because OSMRE determined that 
none of the proposed State revisions pertained to historical 
preservation, the SHPO and the ACHP were not asked to comment on this 
amendment.

V. OSMRE's Decision

    We are approving the changes in the approved State program made by 
HB 4065 regarding the deletion of former West Virginia Code Chapter 22, 
Article 4 about the RBR and also approving SB 497 and its authorization 
to make changes in the approved State program about the award of 
attorney fees and costs by the SMB and courts in appeals from actions 
taken by WVDEP.
    Furthermore, as discussed above, we are approving, on a permanent 
basis, revisions to the increase in the State's special reclamation tax 
at WVSCMRA Sec.  22-3-11(h)(1) to complete land reclamation and water 
treatment activities at bond forfeiture sites.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 948, which codify decisions concerning the West Virginia 
program. In accordance with the Administrative Procedure Act, this rule 
will take effect 30 days after the date of publication. Section 503(a) 
of SMCRA (30 U.S.C. 1253(a)) 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. SMCRA requires 
consistency of State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule does not effect a taking of private property or otherwise 
have taking implications that would result in public property being 
taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of state program amendments is exempt from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    State program amendments are not regulatory actions under Executive 
Order 13771 because they are exempt from review under Executive Order 
12866.

[[Page 70974]]

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3 of Executive Order 12988. The Department has determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
Order did not extend to the language of the state regulatory program or 
to the program amendment that the State of West Virginia drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
Section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. West Virginia, through its approved 
regulatory program, implements and administers SMCRA and its 
implementing regulations at the state level. This rule approves an 
amendment to the West Virginia program submitted and drafted by the 
State, and thus is consistent with the direction to provide maximum 
administrative discretion to States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the West Virginia program that does not include Tribal 
lands or regulation of activities on Tribal lands. Tribal lands are 
regulated independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to OMB under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

    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 corresponding 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 corresponding 
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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

[[Page 70975]]

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director North Atlantic--Appalachian Region.

    For the reasons set out in the preamble, the Office of Surface 
Mining Reclamation and Enforcement amends 30 CFR part 948 as follows:

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. In Sec.  948.15 amend the table by adding in chronological order by 
``Date of publication of final rule'' entries for ``W.Va. Code 22-3-33, 
Attorney fees and costs'' and ``W.Va. Code 22-3-11(h)(1), Increase in 
Special Reclamation Tax'' to read as follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
 Original amendment submission    publication of    Citation/description
             date                   final rule
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                              * * * * * * *
September 11, 2013............  November 6, 2020.  W.Va. Code 22-3-33,
                                                    Attorney fees and
                                                    costs.
April 25, 2011................  November 6, 2020.  W.Va. Code 22-3-
                                                    11(h)(1), Increase
                                                    in Special
                                                    Reclamation Tax.
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[FR Doc. 2020-23214 Filed 11-5-20; 8:45 am]
BILLING CODE 4310-05-P