2011-16261. 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.

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: http://www.regulations.gov. The rule has been assigned Docket ID OSM-2011-0006. 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.

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 http://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: [phone], E-mail: [e-mail].

West Virginia Department of Environmental Protection, 601 57th Street, SE., Charleston, West Virginia 25304, Telephone: [phone].

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: [phone]. (By Appointment Only)

Beckley Area Office, Office of Surface Mining Reclamation and Enforcement, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, Telephone: [phone].

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director, Charleston Field Office, Telephone: [phone]. E-mail: [e-mail].

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 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 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 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

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 by adding a new entry to the table in chronological order by “Date of publication of final rule” to read as follows:

§ 948.15

Approval of West Virginia regulatory program amendments.

* * * * *

Original amendment submission date	Date of publication of final rule	Citation/description of approved 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).