[Federal Register Volume 64, Number 218 (Friday, November 12, 1999)]
[Rules and Regulations]
[Pages 61506-61507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29581]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-074-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; correction.
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SUMMARY: This notice corrects OSM's decision on an amendment submitted
by the State of West Virginia as a modification to its permanent
regulatory program under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). OSM published its decision on the provision in the
October 4, 1995, Federal Register (60 FR 51900). The decision being
corrected concerns bond forfeiture, and specifically concerns the
liability for reclamation costs that are in excess of the amount of
bond forfeited. This correction is intended to comply with the decision
of the United States District Court for the Southern District of West
Virginia in Cat Run Coal Co. v. Babbitt, No. 2: 95-1063 (S.D. W.Va.
Aug. 8, 1996).
EFFECTIVE DATE: November 12, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
Background
In a series of three letters dated June 28, 1993, and July 30, 1993
(Administrative Record Numbers WV-888, WV-889, and WV-893), the West
Virginia Division of Environmental Protection (WVDEP) submitted an
amendment to its approved permanent regulatory program. The amendment
included numerous revisions to the West Virginia Surface Coal Mining
and Reclamation Act, and the West Virginia Surface Mining Reclamation
Regulations (CSR 38-2-1 et seq.). OSM grouped the proposed revisions
that concern reclamation bonding into one amendment that was approved,
with exceptions, in the October 4, 1995, Federal Register (60 FR
51900). In that notice, OSM approved an amendment to CSR 38-2-12.4.e.
concerning the forfeiture of reclamation bonds. Specifically,
subsection 12.4.e. concerns the liability for reclamation costs that
are in excess of the amount of bond forfeited. The provision that OSM
approved provided, in part, that ``[t]he operator, permittee, or other
responsible party shall be liable for all costs in excess of the amount
forfeited.''
Need for Correction
On August 8, 1996, the Court in Cat Run Coal Co. v. Babbitt vacated
OSM's decision to approve CSR 38-2-12.4.e. Specifically, the Court
vacated OSM's approval of the phrase ``other responsible party,''
because it determined that the approval violated the notice and comment
requirements of the Administrative Procedure Act (APA), 5 U.S.C. 500 et
seq., as well as the APA requirement to ``adopt a concise general
statement of * * * [the rule's] basis and purpose.'' Cat Run, Slip op.
at 9 through 15. The Court also found that OSM failed to ascertain the
precise meaning and scope of the term ``other responsible parties,''
and that, as a result, could not reach a reasoned and informed
conclusion as to whether the proposal was consistent with SMCRA. Slip
op. at 12 through 14. Finally, the Court found that CSR 38-2.12.4.e.
was inconsistent with SMCRA's objective of internalizing the liability
for reclamation of surface coal mining operations, because it purported
to hold parties other than surface coal mining permittees and operators
liable for reclamation costs in excess of site specific reclamation
performance bond
[[Page 61507]]
amounts. Slip op. at 15 through 20. Consequently, we are amending our
approval of CSR 38-2-12.4.e. to show that the phrase ``other
responsible party'' is not approved. In addition, we are requiring that
CSR 38-2-12.4.e. be amended to delete the phrase ``other responsible
party.''
The Federal regulations at 30 CFR 948.15 codifying decisions
concerning the West Virginia program are being amended to implement
this revised decision. After the October 4, 1995, publication of the
final rule notice containing our approval of CSR 38-2-12.4.e., the
format of the codification section at 30 CFR 948.15 was changed from
individual paragraphs to a summary table. Therefore, the correction
will have the following effect in the summary table at 30 CFR 948.15.
In the table at 30 CFR 948.15, for the ``Original amendment submission
date'' of June 28, 1993, and ``date of final publication'' of October
4, 1995 and February 21, 1996, the ``Citation/description'' section of
the approved provisions will be revised to exclude from the approval of
CSR 38-2-12.4.e. the phrase ``other responsible party.''
Administrative Procedure Act
The Administrative Procedure Act provides exceptions to its notice
and public comment procedures when an agency finds that there is good
cause for dispensing with such procedures on the basis that they are
impracticable, unnecessary, or contrary to the public interest. We have
determined that, under 5 U.S.C. 553(b)(B), good cause exists for
dispensing with the notice and public comment procedures in this case.
Good cause exists because this rule merely removes regulations already
declared void by the Court. Therefore, opportunity for prior comment is
unnecessary and we are issuing this regulation as a final rule.
In addition, under 5 U.S.C. 553(d)(3), we find good cause for
dispensing with the 30-day delay in the effective date of this final
rule because we are merely removing a provision already declared void
by the court.
Dated: October 22, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 948 is amended
as set forth below:
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by revising the entry
with the ``Date of Final Publication'' of October 4, 1995, February 21,
1996, to read as follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
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* * * *
* * *
June 28, 1993................. October 4, 1995, WV Code 22-1-4
February 21, through -8; 22-2; 22-
1996. 3-3, -5, -7, -8, -9,
a, -11(a), (g), -12,
-13, -15, -17, -18,
19, -22, -26, -28, -
40; 22B-1-4 through
12; 22B-3-4; 22B-4;
CSR 38-2-1.2, -2, -
3.1(o), .4, .6, .7,
.8, .12, .14, .15,
.16, .25, .26,
.27(a), .28, .29,
.30, .31(a), .32,
.33, .34, -4, .1(a),
.2 through .12, -
5.2, .4, .5, -6,
.3(b), .6, .8, -8.1,-
9, -11.1 through .7,
-12.2, .3, .4(a),
(2)(B), (c) through
(e) except the words
``other responsible
party'' at (e) are
not approved, .5, -
13, -14.5, .8, .11,
.12, .14, .15, .17,
.18, .19, -15.2, -
16.2, -17, -18.3, -
20.1, .2, .4 through
.7, -22; 38-2C-4, -
5, -8.2, -10.1, -
11.1; 38-2D-4.4(b),
6.3(a), -8.7(a).
* * * *
* * *
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3. Section 948.16 is amended by adding new paragraph (jjjj), to
read as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(jjjj) By January 11, 2000, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to remove the words ``other
responsible party'' at CSR 38-2-12.4.e.
[FR Doc. 99-29581 Filed 11-10-99; 8:45 am]
BILLING CODE 4310-05-P
