[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Proposed Rules]
[Pages 53972-53979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25314]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-116-FOR; OSM-2009-0008]


West Virginia Regulatory Program

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

ACTION: Proposed rule; 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 regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) 
that includes both statutory and regulatory revisions.
    West Virginia submitted a proposed amendment authorized by 
Committee Substitute for Senate Bill 153 to revise the West Virginia 
Code of State Regulations (CSR) concerning the continued oversight by 
the Secretary of ``approved persons'' who prepare, sign, or certify 
mining permit applications and related materials; regarding incidental 
boundary revisions (IBR) to existing permits, by clarifying that 
certain types of collateral activities are part of the primary mining 
operations and therefore subject to the same acreage limitations, while 
providing more relevant and exacting criteria for the Secretary to 
consider in evaluating an application for revision; deleting the 
bonding matrix forms; changing term ``Bio-oil'' to ``Bio fuel''; and 
clarifying standards in subsection 9.3.f that pertain to areas 
developed for hayland or pasture use. West Virginia submitted proposed 
changes as contained in Senate Bill 436 which amends WV Code 22-3-8 by 
changing references regarding ``the commissioner of the Bureau of 
Employment Programs'' and ``the executive director of the workers' 
compensation commissioner'' which are considered non-substantive.
    West Virginia also submitted proposed changes as contained in 
Committee Substitute for Senate Bill 600 regarding the Special 
Reclamation Fund. This bill amends the State's alternative bonding 
requirements by eliminating the 7 cents per ton additional tax and 
increasing and extending the special reclamation tax from 7.4 to 14.4 
cents per ton of clean coal mined. It also requires the special 
reclamation tax to be reviewed biannually by the Legislature. This 
amendment (WV-115-FOR) was announced earlier in the July 22, 2009, 
Federal Register (74 FR 36113-36116) as an interim rule and approved on 
a temporary basis.
    West Virginia also submitted proposed changes as contained in 
Senate Bill 1011 which amends the WV Code by requiring surface mine 
reclamation plans to comport with approved master land use plans and 
authorizing surface mine reclamation plans to contain alternative 
postmining land uses. Senate Bill 1011 was passed by the Legislature on 
June 2, 2009, during the 1st extraordinary 2009 session, and approved 
by the Governor on June 17, 2009.

[[Page 53973]]


DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on November 20, 2009. If requested, we will hold a public 
hearing on the amendment on November 16, 2009. We will accept requests 
to speak at a hearing until 4 p.m. (local time), on November 5, 2009.

ADDRESSES: You may submit comments by any of the following two methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule has been assigned Docket ID OSM-2009-0008. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to http://www.regulations.gov.
    <bullet> 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-116-FOR) with your 
written comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2009-0008) for this rulemaking.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Comment 
Procedures'' in the SUPPLEMENTARY INFORMATION section of this document. 
You may also request to speak at a public hearing 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-2009-0008. 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: 
<a href="/cdn-cgi/l/email-protection#086b606e6748677b657a6d266f677e"><span class="__cf_email__" data-cfemail="afccc7c9c0efc0dcc2ddca81c8c0d9">[email protected]</span></a>.
West Virginia Department of Environmental Protection, 601 57th Street, 
SE., Charleston, WV 25304, Telephone: (304) 926-0490.

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

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 26508, 
Telephone: (304) 291-4004 (By Appointment Only).
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 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: 
<a href="/cdn-cgi/l/email-protection#5e3d3638311e312d332c3b70393128"><span class="__cf_email__" data-cfemail="b5d6ddd3daf5dac6d8c7d09bd2dac3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 of the Proposed Amendment

    By letter dated May 11, 2009 (Administrative Record Number WV-
1522), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its permanent regulatory program under SMCRA 
(30 U.S.C. 1201 et seq.) and a copy of Committee Substitute for Senate 
Bill 153. Committee Substitute for Senate Bill 153 modified the West 
Virginia Code of State Regulations (CSR) concerning the continued 
oversight of ``approved-persons'' who prepare, sign, or certify mining 
permit applications and related materials. This bill also proposes to 
modify incidental boundary revision (IBR) requirements for existing 
permits by clarifying that certain types of collateral activities are 
part of the primary mining operations and therefore subject to the same 
acreage limitations, while providing more relevant and exacting 
criteria for the Secretary to consider in evaluating an application for 
revision; deleting the bonding matrix forms; changing the term from 
``bio-oil'' to ``bio-fuel''; and clarifying standards for hayland and 
pasture use. The changes regarding the term ``Bio-oil'' to ``Bio-fuel'' 
in the program amendments are non-substantive in nature.
    Committee Substitute for Senate Bill 153 authorized revisions to 
the State's Surface Mining Reclamation Regulations at 38 CSR 2. 
Committee Substitute for Senate Bill 153 was adopted by the Legislature 
on April 8, 2009, and signed into law by the Governor on April 30, 
2009. West Virginia Code at paragraph 64-3-1 (e) authorized WVDEP to 
promulgate the revisions to its rules as legislative rules.
    By letter date May 22, 2009 (Administrative Record Number WV-1521), 
the WVDEP submitted copies of Senate Bill 436 and Committee Substitute 
for Senate Bill 600. Senate Bill 436 was adopted by the West Virginia 
Legislature on April 3, 2009, and it was approved by the Governor on 
April 11, 2009. Committee Substitute for Senate Bill 600, which 
authorized changes to the State's alternative bonding system, was 
passed by the Legislature on April 10, 2009, and it was approved by the 
Governor on May 4, 2009, with an effective date of July 1, 2009.
    Senate Bill 436 amends WV Code 22-3-8 by changing references to 
``the commissioner of the Bureau of Employment Programs'' to 
``executive director of the Workforce West Virginia'' and ``the 
executive director of the workers' compensation commissioner'' to 
``Insurance Commissioner.'' The revisions authorized by Senate Bill 436 
are considered non-substantive changes by the State, and it requests 
that they not be included in the amendment. Given the nature of the 
changes, OSM concurs with the State's assessment and finds them to be 
essentially non-substantive changes. Therefore, we are not soliciting 
comments on these revisions. However, though perhaps non-substantive, 
the revisions proposed would amend a statutory provision of the State's 
approved program. Therefore, we will seek comments on these revisions; 
if, after the comment

[[Page 53974]]

period, we determine that the changes are indeed non-substantive, we 
will approve them without specific findings.
    Committee Substitute for Senate Bill 600 amended Section 22-3-11 of 
the West Virginia Surface Mining Control and Reclamation Act (WVSCMRA). 
As stated in the State's May 22, 2009, letter transmitting the 
amendment, Committee Substitute for Senate Bill 600 ``amends Chapter 
22-3-11 of the Code of West Virginia to implement actuarial 
recommendations relating to the continuing fiscal viability of the 
Special Reclamation Fund. The legislation consolidates what has been 
known as ``the 7-and-7.4 tax'' (the 7.4 [cents] portion of which is 
currently subject to annual renewal) into a 14.4 cent[s] tax per ton of 
clean coal mined, reviewable every two years by the Legislature''.
    By letter dated July 6, 2009 (Administrative Record Number WV 
1523), WVDEP submitted a copy of Senate Bill 1011. Senate Bill 1011 
amends the WV Code by requiring surface mine reclamation plans to 
comport with approved master land use plans and authorizing surface 
mine reclamation plans to contain alternative postmining land uses. 
Senate Bill 1011 was passed by the Legislature on June 2, 2009, during 
the 1st extraordinary 2009 session, and approved by the Governor on 
June 17, 2009.
    The amendment is intended to improve the effectiveness of the West 
Virginia program and to render the West Virginia program no less 
effective than the Federal regulations. Throughout this proposed 
amendment, nonsubstantive changes from ``Bio-oil'' to ``Bio-fuel'' are 
made but not listed in this Proposed Rule Notice.
    West Virginia proposes the following amendments to its regulations 
as authorized by Committee Substitute for Senate Bill 153:

1. CSR 38-2-3.15. Permit Applications: Approved Persons

    This amendment proposes to add language regarding persons approved 
to prepare, sign, or certify permit applications.
    Subdivision a is amended by adding (C) after 13(b)(10) to clarify 
when an approved person has to be a registered professional engineer or 
licensed land surveyor.
    Subdivision 3.15.b is amended by adding ``and subject to be renewed 
on an annual basis.'' after writing, ``and'' is deleted and ``Approvals 
and renewals'' is added before ``shall.''
    As amended, subdivision 3.15 reads as follows:

    3.15.a. Any person approved by the Secretary, unless otherwise 
provided in the Act and this rule, may prepare, sign, or certify 
permit application, maps, plans, and design specification or other 
similar materials necessary to complete an application; provided, 
however, that for purposes of Sections 9(a)(13) and 13(b)(10)(C) of 
the Act an approved person shall be a registered professional 
engineer or licensed land surveyor.
    3.15.b. The Secretary's approval shall be in writing and subject 
to be renewed on an annual basis. Approvals and renewals shall be 
granted on the basis of the following:

    Although there are no specific Federal requirements governing 
approved persons, these proposed revisions fall under the provisions of 
30 CFR 777.11, 777.13, and 780.14(c) and sections 507(b)(14) and 
515(b)(10)(B)(ii) of SMCRA.

2. CSR 38-2-3.15.b.3 Permit Applications: Approved Persons

    This amendment proposes to add a new subparagraph, 3.15.b.3, 
regarding obtaining a digital signature approved by the Secretary for 
an approved person to prepare, sign, or certify permit applications.
    As amended, 3.15.b.3 reads as follows:

    3.15.b.3. Any person seeking an approval must obtain a digital 
signature approved by the Secretary and maintain the capability of 
submitting documents bearing digital signatures to the Secretary. A 
digital signature shall have the same effect when affixed to 
documents submitted to the Secretary as a signature affixed by other 
means.

    Although there are no specific Federal requirements governing 
approved persons, these proposed revisions fall under the provisions of 
30 CFR 777.11, 777.13, and 780.14(c) and sections 507(b)(14) and 
515(b)(10)(B)(ii) of SMCRA.

3. CSR 38-2-3.15.e Permit Applications: Disciplinary Action and 
Procedures

    This amendment proposes to add a new subdivision, 3.15.e, regarding 
disciplinary action and procedures for people approved to prepare, 
sign, or certify permit applications.
    As amended, 3.15.e reads as follows:

    3.15.e. Disciplinary action and Procedures.
    3.15.e.1. The Secretary may:
    3.15.e.1.A. Revoke an approved person authorization;
    3.15.e.1.B. Suspend an approved person authorization for a 
period of time, not exceeding two years, subject to such conditions 
as the Secretary may specify or
    3.15.e.1.C. Make the continuation of a person's approved person 
status subject to such conditions as the Secretary may specify.
    3.15.e.2. The Secretary may suspend or revoke a person's 
approved person status, or refuse to approve, restore, or renew any 
continuation of a person's approved person status, or impose 
conditions upon approval, restoration, or renewal, or may reprimand 
any approved person who has:
    3.15.e.2.A. Engaged or has caused others to engage in fraud or 
deceit in obtaining or renewing his or her approved person status;
    3.15.e.2.B. Been negligent, incompetent or committed an act of 
misconduct as an approved person;
    3.15.e.2.C. Failed to comply with any of the provisions of 
Chapter 22 Article 3 of the Code of West Virginia or any of the 
rules promulgated thereunder;
    3.15.e.2.D. Been disciplined by a professional or occupational 
licensing body, or by any State or Federal agency;
    3.15.e.2.E. Made false statements or signed false statements, 
certificates or affidavits; or
    3.15.e.2.F. Aided or assisted another person in violating any 
provision of Chapter 22 Article 3 of the Code of West Virginia or 
any of the rules promulgated thereunder;

    Although there are no specific Federal requirements governing 
approved persons, these proposed revisions fall under the provisions of 
30 CFR 777.11, 777.13, and 780.14(c) and sections 507(b)(14) and 
515(b)(10)(B)(ii) of SMCRA.

4. CSR 38-2-3.15.f Permit Applications: Imposition of Conditions, 
Suspension and Revocation

    This amendment proposes to add a new subdivision, 3.15.f, regarding 
the imposition of conditions, suspension and revocation of disciplinary 
action and procedures for people approved to prepare, sign, or certify 
permit applications.
    As amended, 3.15.f reads as follows:

    3.15.f. Imposition of Conditions, Suspension and Revocation.
    3.15.f.1. If the Secretary takes one or more of the actions 
specified in subsection 3.15.e., the person adversely affected shall 
be notified.
    3.15.f.2. Such notice shall inform the person of the conditions 
or provisions violated and his or her right to request a hearing for 
the purpose of showing cause why his or her approved person status 
should not be revoked, suspended, made subject to conditions, or 
otherwise abridged.
    3.15.f.3. Upon request made in writing within fifteen days of 
service of the notice, the person shall be granted a hearing before 
the Secretary to show cause why his or her approved person status 
should not be suspended, revoked, made subject to conditions, or 
otherwise abridged.
    3.15.f.4. If the approved person requests a hearing, a hearing 
shall be held within thirty (30) days. Within sixty (60) days 
following the hearing, the Secretary shall determine whether cause 
exists, and furnish to the approved person a written decision or 
order setting forth the reasons therefor.

    Although there are no specific Federal requirements governing 
approved persons, these proposed revisions fall under the provisions of 
30 CFR 777.11,

[[Page 53975]]

777.13, and 780.14(c) and sections 507(b)(14) and 515(b)(10)(B)(ii) of 
SMCRA.

5. CSR 38-2-3.28.b.1 Permit Revision

    This amendment proposes to add the references ``subdivisions 
3.2.b., 3.2.c., and 3.2.d. of this rule:'' for additional clarification 
of the public notice requirements for a significant permit revision. As 
amended, subparagraph 3.28.b.1 reads as follows:

    3.28.b.1. Where the permit revision constitutes a significant 
departure from the terms and conditions of the existing permit which 
may result in a significant impact in any of the following areas, it 
shall be deemed to be a significant revision and be subject to the 
public notice requirements of subdivisions 3.2.a, 3.2.b., 3.2.c. and 
3.2.d. of this rule:

    These proposed revisions fall under the provisions of 30 CFR 774.13 
and section 511(a)(2) of SMCRA.

6. CSR 38-2-3.29.a Incidental Boundary Revisions

    This amendment proposes to delete language regarding incidental 
boundary revisions (IBRs) that involve the abatement of a violation 
where encroachment goes beyond the permit boundary, unless an equal 
amount of acreage covered under the IBR for encroachment is deleted 
from the permitted area and transferred to the encroachment area. As 
amended, subdivision 3.29.a reads as follows:

    3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to 
minor shifts or extensions of the permit boundary into non-coal 
areas or areas where any coal extraction is incidental to or of only 
secondary consideration to the intended purpose of the IBR. IBRs 
shall also include the deletion of bonded acreage which is 
overbonded by another valid permit and for which full liability is 
assumed in writing by the successive permittee. Incidental Boundary 
Revisions shall not be granted for any prospecting operations.

    These proposed revisions fall under the provisions of 30 CFR 774.13 
and section 511(a)(3) of SMCRA.

7. CSR 38-2-3.29.b.2 Incidental Boundary Revisions--Acreage Limitation

    This amendment proposes to add language regarding the acreage 
limitation for underground mining and other related mining operations. 
Under the proposed revision, the State proposes to apply its 
underground mining acreage limit and waiver provisions to loadout 
operations, coal refuse disposal operations, and coal preparation 
operations. As amended, subparagraph 3.29.b.2 reads as follows:

    3.29.b.2. For purposes of surface mining operations, the maximum 
total acreage to be permitted under one or more IBR(s) shall not 
exceed twenty (20) percent of the original permitted acreage or a 
maximum of fifty (50) acres, whichever is less, throughout the life 
of the permit. Acreage limitation for IBR(s) on underground mining 
operations and other mining operations including but not limited to 
loadout operations, coal refuse disposal operations and coal 
preparation operations shall be limited to one hundred fifty (150) 
percent of the original permitted acreage or a maximum of fifty (50) 
acres, whichever is less, throughout the life of the permit; 
Provided, That the Secretary may grant a waiver specifying larger 
acre limits where the applicant demonstrates that the nature and 
complexity of the operation clearly requires more than fifty (50) 
acres for additional facilities to include but not be limited to 
site development, air shafts, fan ways, vent holes, roads, staging 
areas, etc.

    These proposed revisions fall under the provisions of 30 CFR 774.13 
and section 511(a)(3) of SMCRA.

8. CSR 38-2-3.29.d Incidental Boundary Revisions

    This amendment proposes to delete language regarding the findings 
the Secretary must make prior to approving IBRs. Currently, the 
Secretary must make six required findings prior to approving an IBR. As 
proposed, the State intends to delete language requiring the Secretary 
to find that the IBR does not constitute a change in postmining land 
use; will only involve lands for which the approved PHC is applicable; 
does not constitute a change in the mining method; and will not result 
in adverse environmental impacts of a larger scope or different nature 
from those described in the approved permit. Due to the proposed 
deletion of these four IBR findings, the State proposes to renumber 
3.29.d.5 and 3.29.d.6 as 3.29.d.1 and 3.29.d.2, respectively. As 
amended, subparagraph 3.29.d now only has two required findings and 
reads as follows:

    3.29.d. The Secretary shall make the following findings prior to 
approval of an IBR:
    3.29.d.1 The IBR will facilitate the orderly and continuous 
conduct of mining and reclamation operations.
    3.29.d.2 Except for underground operations, an area permitted 
under an IBR must be contiguous to the original permitted area.

    These proposed revisions fall under the provisions of 30 CFR 774.13 
and section 511(a)(3) of SMCRA.

9. CSR 38-2-3.29.e Incidental Boundary Revisions--Hydrologic--
Consequences/Assessment--Significant or Non-significant

    This amendment proposes to delete language which gives the 
Secretary the authority to require IBR applications to be advertised 
and to provide for a 10-day public comment period. The amendment also 
proposes to add new language regarding the review of applications for 
IBR's to determine if an updated probable hydrologic consequences 
determination or cumulative hydrologic impact assessment is required. 
The State also added language setting forth the basis by which an IBR 
is determined to be significant or non-significant. As amended, 
subparagraph 3.29.e reads as follows:

    3.29.e. Each application for an IBR shall be subject to review 
and approval by the Secretary. Each application shall be reviewed by 
the Secretary to determine if an updated probable hydrologic 
consequences determination or cumulative hydrologic impact 
assessment is required. The Secretary shall make a determination, on 
the basis of information provided in the IBR application, whether 
the IBR is of a significant or non-significant nature. The following 
criteria shall provide guidance for making such a determination.
    3.29.e.1. Where the IBR constitutes a significant departure from 
the terms and conditions of the existing permit which may result in 
a significant impact in any of the following areas, it shall be 
deemed to be significant and be subject to the public notice 
requirements of subdivisions 3.2.a., 3.2.b., 3.2.c. and 3.2.d. of 
this rule:
    3.29.e.1.A. The health, safety, or welfare of the public;
    3.29.e.1.B. The hydrologic balance in the area of operation;
    3.29.e.1.C. The postmining land use;
    3.29.e.1.D. The method of mining;
    3.29.e.1.E. Adverse environmental impacts of a larger scope or 
different nature from those described in the approved permit;
    3.29.e.1.F. Areas prohibited from mining pursuant to the 
provisions of subsection (d) section 22 of the Act; and
    3.29.e.1.G. An individual's legal right to receive notice, as 
prescribed by the provisions of this rule.
    3.29.e.2. Where the IBR constitutes only an insignificant 
departure from the terms and conditions of the approved existing 
permit, it shall be deemed to be non-significant, requiring no 
public notice.

    These proposed revisions fall under the provisions of 30 CFR 774.13 
and section 511(a)(2) of SMCRA.

10. CSR 38-2-9.3.f Revegetation Success Standards

    This amendment proposes to delete ``Where the postmining land use 
requires legumes and perennial grasses,'' and add ``For areas to be

[[Page 53976]]

developed for hayland or pasture use,'' As amended, subparagraph 9.3.f 
reads as follows:

    9.3.f. For areas to be developed for hayland or pasture use, the 
operator shall achieve at least a ninety (90) percent ground cover 
and a productivity level as set forth by the Secretary during any 
two years of the responsibility period except for the first year. 
Substandard areas shall not exceed one-fourth (\1/4\) acre in size 
nor total more than ten (10) percent of the area seeded. Exceptions 
to this standard may be authorized by the Secretary based on the 
following:

    These proposed revisions fall under the provisions of 30 CFR 
816.116(b)(1) and 817.116(b)(1).

11. Site Specific Bonding Tables

    This amendment is proposing to delete the Coal Bonding Calculations 
Tables 1, 2, 3, and 4 in subsection 11.5. In addition, subdivisions 
11.5.c, 11.5.d, 11.5.e, and 11.5.f propose to delete language referring 
to the Bonding Calculations Tables. The criterion for calculating site 
specific bonds remains the same in the existing regulations.
    Although there are no specific Federal requirements governing 
bonding calculations, these proposed revisions fall under the 
provisions of 30 CFR 800.14.

12. Section 5B-2A-3: Definitions

    This amendment is proposing to add the following definitions to the 
West Virginia Code 5B-2A-3.
    (2) ``Master land use plan'' means a plan as defined in 145 CSR 8;
    (3) Is renumbered (4) and the following definition for ``Operator'' 
is added: ``Operator'' means the definition in section three, article 
three, chapter twenty-two of this code;
    (4) Is renumbered (5) and the following definition for ``Renewable 
and alternative energy'' is added: ``Renewable and alternative energy'' 
means energy produced or generated from natural or replenishable 
resources other than traditional fossil fuels or nuclear resources and 
includes, without limitation, solar energy, wind power, hydropower, 
geothermal energy, biomass energy, biologically derived fuels, energy 
produced with advanced coal technologies, coalbed methane, fuel 
produced by a coal gasification or liquefaction facility, synthetic 
gas, waste coal, tire-derived fuel, pumped storage hydroelectric power 
or similar energy sources.
    As amended, West Virginia Code 5B-2A-3 reads as follows:

    (a) For the purpose of this article, the following terms have 
the meanings ascribed to them:
    (2) ``Master land use plan'' means a plan as defined in 145 CSR 
8;
    (4) ``Operator'' means the definition in section three, article 
three, chapter twenty-two of this code;
    (5) ``Renewable and alternative energy'' means energy produced 
or generated from natural or replenishable resources other than 
traditional fossil fuels or nuclear resources and includes, without 
limitation, solar energy, wind power, hydropower, geothermal energy, 
biomass energy, biologically derived fuels, energy produced with 
advanced coal technologies, coalbed methane, fuel produced by a coal 
gasification or liquefaction facility, synthetic gas, waste coal, 
tire-derived fuel, pumped storage hydroelectric power or similar 
energy sources.

    Although there are no specific Federal requirements governing 
master land use plans, these proposed revisions fall under the 
provisions of SMCRA 507, 508, and 515(b), (c), (d) and (e) and 30 CFR 
780.23, 784.15, 784.16, 816/817.133 and 824.

13. Section 5B-2A-5: Powers and Duties

    This amendment proposes to add ``shall'' after ``assistance'' in 
West Virginia Code 5B-2A-5(8). As amended, West Virginia Code 5B-2A-
5(8) reads as follows:

    (8) On its own initiative or at the request of a community in 
close proximity to a mining operation, offer assistance to 
facilitate the development of economic or community assets. Such 
assistance shall include the preparation of a master land use plan 
pursuant to the provisions of section nine of this article.

    Although there are no specific Federal requirements governing 
master land use plans, these proposed revisions fall under the 
provisions of SMCRA 508 and 30 CFR 780.23.

14. Section 5B-2A-6: Community Impact Statement

    This amendment proposes to replace at West Virginia Code 5B-2A-6 
(2) ``division's'' with ``department's''; add ``county'' after 
``local''; delete ``economic'' after ``regional'' and add ``or 
redevelopment'' after ``development''. This amendment proposes to add 
new language at (9) regarding a master land use plan; and at (9)(d) 
regarding receipt of a community impact statement. The old (d) is 
relettered to (e) and in (e)(1), ``the effective date of this article'' 
is deleted and ``June 11, 1999'' is added.
    As amended, West Virginia Code 5B-2A-6 reads as follows:

    (a)(2) The operator shall provide copies of the community impact 
statement to the division's department's office of mining 
reclamation and office of explosives and blasting and to the county 
commissions, county clerks' offices and local, county or regional 
economic development or redevelopment authorities of the areas to be 
affected by the surface mining operations.
    (b) The community impact statement, where practicable, shall not 
be a highly technical or legalistic document, but shall be written 
in a clear and concise manner understandable to all citizens. The 
community impact statement shall include the following:
    (9) An acknowledgment of the recommendations of any approved 
master land use plan that pertains to the land proposed to be mined, 
including an acknowledgment of the infrastructure components needed 
to accomplish the designated post-mine land use required by the 
plan.
    (d) Within thirty days of receipt of a community impact 
statement pursuant to subdivision (2), subsection (a) of this 
section or a revised community impact statement pursuant to 
subsection (c) of this section, the local, county or regional 
development or redevelopment authorities of the areas to be affected 
by the surface mining operations shall provide a written 
acknowledgment of the receipt of this community impact statement or 
revised community impact statement to the department's Division of 
Mining Reclamation, to the county commission or county commissions 
and to the office.
    (e) The provisions of this section shall apply as follows:
    (1) To all surface mining permits granted after June 11, 1999; 
and
    (2) At the first renewal date of all previously issued permits: 
Provided, That the permittee shall be afforded ninety days from said 
date to comply with the provisions of this section.

    Although there are no specific Federal requirements governing 
master land use plans, these proposed revisions fall under the 
provisions of SMCRA 507, 508, and 515(b), (c), (d) and (e) and 30 CFR 
780.23, 784.15, 784.16, 816/817.133 and 824.

15. Section 5B-2A-9: Securing Developable Land and Infrastructure

    This amendment proposes to delete from (f) ``Participation in a 
master land use plan is voluntary.'' At (f)(1) delete ``State, local, 
county or regional development or redevelopment authorities may'' and 
add ``The county commission or other governing body for each county in 
which there are surface mining operations that are subject to this 
article shall'' after ``may''; delete ``that include'' after ``needs'' 
and add ``, including, but not limited to, renewable and alternative 
energy uses, residential uses, highway uses,''; add new language at the 
end of (f)(1) regarding designation of development or redevelopment 
authority and adoption of a master land use plan. (f)(2) is deleted and 
new language is added to (f)(2), (3)(A), (3)(B), (3)(C), and (3)(D) 
regarding master land

[[Page 53977]]

plan use; (3) is renumbered to (4) and ``subdivision (1) of this 
subsection'' is deleted and ``a master land use plan'' is added; 
``relevant State, local,'' is deleted after ``the''; ``regional'' is 
deleted after ``or''; and ``its designated'' is added after ``or''; 
``State, local,'' is deleted after ``respective'' and ``regional'' is 
deleted after ``or''; ``State, local,'' is added after ``relevant'' in 
(4)(ii); ``or other county governing body'' is added after 
``commissions''; and (4) is renumbered to (5).
    As amended, West Virginia Code 5B-2A-9(f) reads as follows:

    (f) The office may secure developable land and infrastructure 
for a development office or county through the preparation of a 
master land use plan for inclusion into a reclamation plan prepared 
pursuant to the provisions of section ten, article three, chapter 
twenty-two of this code. No provision of this section may be 
construed to modify requirements of article three of said chapter.
    (1) The county commission or other governing body for each 
county in which there are surface mining operations that are subject 
to this article shall determine land and infrastructure needs within 
their jurisdictions through the development of a master land use 
plan which incorporates post-mining land use needs, including, but 
not limited to, renewable and alternative energy uses, residential 
uses, highway uses, industrial uses, commercial uses, agricultural 
uses, public facility uses or recreational facility uses. A county 
commission or other governing body of a county may designate a 
local, county, or regional development or redevelopment authority to 
assist in the preparation of a master land use plan. A county 
commission or other governing body of a county may adopt a master 
land use plan developed after July 1, 2009, only after a reasonable 
public comment period;
    (2) Upon the request of a county or designated development or 
redevelopment authority, the office shall assist the county or 
development or redevelopment authority with the development of a 
master land use plan;
    (3)(A) The Department of Environmental Protection and the Office 
of Coalfield Community Development shall review master land use 
plans existing as of July 1, 2009. If the office determines that a 
master land use plan complies with the requirements of this article 
and the rules promulgated pursuant to this article, the office shall 
approve the plan on or before July 1, 2010;
    (B) Master land use plans developed after July 1, 2009, shall be 
submitted to the department and the office for review. The office 
shall determine whether to approve a master land use plan submitted 
pursuant to this subdivision within three months of submission. The 
office shall approve the plan if it complies with the requirements 
of this article and the rules promulgated pursuant to this article;
    (C) The office shall review a master land use plan approved 
under this section every three years. No later than six months 
before the review of a master land use plan, the county or 
designated development or redevelopment authority shall submit an 
updated master land use plan to the department and the office for 
review. The county may submit its updated master land use plan only 
after a reasonable public comment period. The office shall approve 
the master land use plan if the updated plan complies with the 
requirements of this article and the rules promulgated pursuant to 
this article;
    (D) If the office does not approve a master land use plan, the 
county or designated development or redevelopment authority shall 
submit a supplemental master land use plan to the office for 
approval;
    (4) The required infrastructure component standards needed to 
accomplish the designated post-mining land uses identified in a 
master land use plan shall be developed by the county or its 
designated development or redevelopment authority. These standards 
must be in place before the respective county or development or 
redevelopment authority can accept ownership of property donated 
pursuant to a master land use plan. Acceptance of ownership of such 
property by a county or development or redevelopment authority may 
not occur unless it is determined that: (i) The property use is 
compatible with adjacent land uses; (ii) the use satisfies the 
relevant county or development or redevelopment authority's 
anticipated need and market use; (iii) the property has in place 
necessary infrastructure components needed to achieve the 
anticipated use; (iv) the use is supported by all other appropriate 
public agencies; (v) the property is eligible for bond release in 
accordance with section twenty-three, article three, chapter twenty-
two of this code; and (vi) the use is feasible. Required 
infrastructure component standards require approval of the relevant 
county commission, commissions or other county governing body before 
such standards are accepted. County commission or other county 
governing body approval may be rendered only after a reasonable 
public comment period;

    Although there are no specific Federal requirements governing 
master land use plans, these proposed revisions fall under the 
provisions of SMCRA 507, 508, and 515(b), (c), (d) and (e) and 30 CFR 
780.23, 784.15, 784.16, 816/817.133 and 824.

16. Section 22-3-10: Reclamation Plan Requirements

    This amendment proposes to add new language to West Virginia Code 
22-3-10(a)(3) regarding a variety of alternative uses; delete language 
regarding master plan for postmining land use; add new language 
regarding postmining land use; delete language regarding surface permit 
application and add language regarding master land use plan. This 
amendment also proposes to add new language at the end regarding the 
effective date of these amendments.
    As amended, West Virginia Code 22-3-10(a)(3) will read as follows:

    Each reclamation plan * * * shall include * * * a statement of:
    (3) The use which is proposed to be made of the land following 
reclamation, including a discussion of the utility and capacity of 
the reclaimed land to support a variety of alternative uses, 
including, but not limited to, renewable and alternative energy 
uses, residential uses, highway uses, industrial uses, commercial 
uses, agricultural uses, public facility uses or recreational 
facility uses, and the relationship of the use to existing land use 
policies and plans and the comments of any owner of the surface, 
other State agencies and local governments which would have to 
initiate, implement, approve or authorize the proposed use of the 
land following reclamation;
    (A) The post-mining land use proposed in any reclamation plan 
for lands proposed to be mined by surface mining methods shall 
comport with the land use that is specified in the approved master 
land use plan for the area as provided in section nine, article two-
a, chapter five-b of this code: Provided, That the secretary may 
approve an alternative post-mining land use where the applicant 
demonstrates that:
    (i) The proposed post-mining land use is a higher and better use 
than the land use specified in the approved master land use plan;
    (ii) Site-specific conditions make attainment of a post-mining 
land use which comports with the land use that is specified in the 
approved master land use plan for the area impractical; or
    (iii) The post-mining land use specified in the approved master 
land use plan would substantially interfere with the future 
extraction of mineable coal, as that term is defined in 110 CSR 1 or 
a successor rule, from the land to be mined.
    (B) Existing permits with approved reclamation plans may be 
modified by the operator through an appropriate permit revision to 
include a post-mining land use which comports with the land use that 
is specified in the approved master land use plan for the area as 
provided in section nine, article two-a, chapter five-b of this 
code;
    (C) By complying with a master land use plan that has been 
approved in accordance with article two-a, chapter five-b of this 
code, a post-mining land use satisfies the requirements for an 
alternative post-mining land use and satisfies the variance 
requirements set forth in subsection (c), section thirteen, article 
three, chapter twenty- two of this code if applicable to the 
proposed use;
    (b) A reclamation plan pending approval as of the effective date 
of this section may be amended by the operator to provide for a 
post-mining land use that comports with a master land use plan that 
has been approved in accordance with article two-a, chapter five-b 
of this code.
    (d) The amendments to this section by the first extraordinary 
session of the Legislature in 2009 are effective upon the approval 
of the corresponding amendments to West Virginia's State program, as 
that term is defined in the Federal Surface Mining Control and 
Reclamation Act of 1977, 30 U.S.C. 1291, by the Federal Office of 
Surface Mining Reclamation and Enforcement.


[[Page 53978]]


    Although there are no specific Federal requirements governing 
master land use plans, these proposed revisions fall under the 
provisions of SMCRA 507, 508, and 515(b), (c), (d) and (e) and 30 CFR 
780.23, 784.15, 784.16, 816/817.133 and 824.

17. Section 22-3-11 Bonds

    Subsection 22-3-11(h)(1) of the WVSCMRA is amended by deleting the 
year 2008, and adding language to provide that, ``For tax periods 
commencing on and after July 1, 2009, every person conducting coal 
surface mining shall remit a special reclamation tax * * *'' Former 
subparagraph (A) is revised by deleting language which provides that 
the special reclamation tax be remitted for the initial period of 
twelve months, ending June 30, 2009, and the word ``seven'' is deleted. 
As modified, the special reclamation tax is increased from seven and 
four-tenths to fourteen and four-tenths cents per ton of clean coal 
mined.
    Former subparagraph (B) is amended by deleting language which 
provides that ``[A]n additional seven cents per ton of clean coal 
mined, the proceeds of which shall be deposited in the Special 
Reclamation Fund.'' This revision eliminates the additional seven cents 
tax which previously funded the Special Reclamation Fund.
    Furthermore, language is deleted which provides that the additional 
seven cents tax shall be reviewed and, if necessary, adjusted annually 
by the Legislature upon the recommendation of the council pursuant to 
the provisions of section seventeen, article one of this chapter. This 
provision is modified to provide that, ``Beginning with the tax period 
commencing on July 1, 2009, and every two years thereafter, the special 
reclamation tax shall be reviewed by the Legislature to determine 
whether the tax should be continued:''
    As amended, West Virginia Code 22-3-11(h)(1) reads as follows:

    (h)(1) For tax periods commencing on and after July 1, 2009, 
every person conducting coal surface mining shall remit a special 
reclamation tax of fourteen and four-tenths cents per ton of clean 
coal mined, the proceeds of which shall be allocated by the 
secretary for deposit in the Special Reclamation Fund and the 
Special Reclamation Water Trust Fund. The tax shall be levied upon 
each ton of clean coal severed or clean coal obtained from refuse 
pile and slurry pond recovery, or clean coal from other mining 
methods extracting a combination of coal and waste material as part 
of a fuel supply. Beginning with the tax period commencing on July 
1, 2009, and every two years thereafter, the special reclamation tax 
shall be reviewed by the Legislature to determine whether the tax 
should be continued: Provided That the tax may not be reduced until 
the Special Reclamation Fund and Special Reclamation Water Trust 
Fund have sufficient moneys to meet the reclamation responsibilities 
of the State established in this section.

    This proposed amendment was announced earlier in the July 22, 2009, 
Federal Register (74 FR 36113-36226) as an interim rule (WV-115-FOR) 
and approved on a temporary basis.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether these amendments satisfy the applicable program 
approval criteria of 30 CFR 732.15. If we approve these revisions, they 
will become part of the West Virginia program.

Written Comments

    Send your written comments to OSM at one of the addresses given 
above. Your 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 until 4 p.m. (local time), 
on November 5, 2009. 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 only one person requests an opportunity to speak, 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.

IV. 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.

[[Page 53979]]

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: August 8, 2009.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E9-25314 Filed 10-20-09; 8:45 am]
BILLING CODE 4310-05-P


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