67446 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–093–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: We, the Office of Surface

Mining Reclamation and Enforcement

(OSM), are approving a proposed

amendment to the West Virginia surface

coal mining regulatory program (the

West Virginia program) authorized

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA or the

Act). The program amendment consists

of changes to the Code of West Virginia

(W. Va. Code) as contained in Enrolled

Senate Bill 5003. The amendment

creates a Special Reclamation Fund

Advisory Council and increases the

special reclamation tax rate on coal to

provide additional revenues for the

West Virginia Special Reclamation

Fund.

EFFECTIVE DATE: December 28, 2001.

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:

I. Background on the West Virginia

Program

II. Background on West Virginia’s

Alternative Bonding System

III. Submission of the Amendment

IV. OSM’s Findings

V. Summary and Disposition of

Comments

VI. OSM’s Decision

VII. 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. Background on West Virginia’s

Alternative Bonding System (ABS)

On January 21, 1981, the Secretary

conditionally approved West Virginia’s

ABS. The ABS has two basic

components: the site-specific or

incremental bond posted by the

permittee and the Special Reclamation

Fund (the Fund), comprised of a special

reclamation tax, civil penalty

assessments, and interest earned on the

revenues, which is intended to cover

any reclamation costs in excess of the

site-specific or incremental bond.

At the time of approval, the Secretary

required that the State provide an

actuarial study of the Fund

demonstrating that the amount of

money going into the Fund would cover

the demands to be placed on it, along

with any program changes needed to

redress any deficiencies identified by

the actuarial study (46 FR 5956).

The State submitted an actuarial

study on October 29, 1982

(Administrative Record No. WV–456).

The study concluded that the Fund was

solvent, in part because it contained a

funding mechanism (the special

reclamation tax) to provide for the cost

of future reclamation. On March 1, 1983

(41 FR 8447), we subsequently found

that the State’s alternative bonding

provisions were in accordance with

section 509(c) of SMCRA and the

Federal criteria for approval of

alternative bonding systems at 30 CFR

806.11(b), which has since been

recodified as 30 CFR 800.11(e).

Consequently, we removed the

condition (25) relating to our approval

of the State’s ABS.

By 1988–89, our oversight evaluations

indicated that the Fund lacked

sufficient revenue to reclaim all

outstanding bond forfeiture sites. In

addition, the cash balance in the Fund

ceased earning interest because of losses

suffered by the State’s Consolidated

Investment Fund. On October 1, 1991,

we notified the State, pursuant to 30

CFR 732.17(c) and (e), that a program

amendment was necessary because the

Fund no longer met the requirements of

30 CFR 800.11(e).

In a series of amendments beginning

in 1993, West Virginia revised portions

of its program in an attempt to resolve

some of our concerns. For example, the

State increased its special reclamation

tax from one cent to three cents per ton

of coal mined and adopted site-specific

bonding regulations. In addition,

Deloitte and Touche, an accounting and

consulting company, completed an

actuarial study of the Fund in March

1993. The study concluded that the

Fund had an accrual deficit position as

of June 30, 1992, but that the Fund

would realize gradual improvement

over the next five years.

On October 4, 1995 (60 FR 51900), we

announced our partial approval of the

State’s amendments. However, as

specified in 30 CFR 948.16 (jjj), (kkk),

and (lll), we also required the State to

amend certain statutory provisions to

fully eliminate the deficit in the Special

Reclamation Fund and to provide for

treatment of pollutional discharges from

bond forfeiture sites.

OSM and the State conducted

additional studies that were completed

in September 1997 and June 1999 to

assess the financial condition of the

Fund. The studies found that the Fund

could eventually be solvent if its

responsibilities were limited to land

reclamation. However, the studies also

determined that treatment of pollutional

discharges from forfeited sites required

additional revenue.

By letter dated September 29, 2000,

we informed the West Virginia

Department of Environmental Protection

(WVDEP) that Federal corrective action

would be taken, unless the Legislature

adopted the necessary changes to the

Fund to resolve the identified

deficiencies (Administrative Record No.

WV–1181). However, the Legislature

adjourned without enacting the

proposed changes.

On April 18, 2001, WVDEP requested

additional time to develop and obtain

approval of statutory and regulatory

changes to the State’s bonding

provisions (Administrative Record No.

WV–1206). In addition, WVDEP

requested that we conduct an informal

review of a report entitled ‘‘The

Mountain State Clean Water Trust

Fund.’’ Under a plan that was based on

the report, WVDEP intended to bifurcate

the Fund into two distinct accounts, one

for land reclamation and one for water

treatment.

In a letter dated June 29, 2001, we

initiated corrective action under 30 CFR

733.12(b). In that letter, which is known

as a Part 733 notification, we notified

the State that it must initiate certain

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67447

remedial measures by July 27, 2001, to

satisfy the outstanding required

amendments at 30 CFR 948.16 (kkk),

(jjj), and (lll) and that it must submit the

necessary, fully-enacted and adopted

statutory and regulatory revisions no

later than 45 days after the end of the

2002 regular session of the Legislature

(Administrative Record No. WV–1218).

As stated in the letter, if West Virginia

failed to take these measures, we

intended to recommend that the

Secretary partially withdraw approval of

the State program and implement a

partial Federal regulatory program.

On July 27, 2001, WVDEP submitted

draft statutory and regulatory revisions

in response to our Part 733 notification

(Administrative Record No. WV–1231).

The draft changes are commonly

referred to as the 20/20 Plan.

By e-mail message dated August 8,

2001, WVDEP provided us with

additional draft legislative changes for

informal review (Administrative Record

No. WV–1233A). The proposed

revisions are commonly called the 7–Up

Plan.

On August 9 and August 28, 2001, we

provided WVDEP our informal review

of the proposed statutory revisions that

were submitted on August 8

(Administrative Record Nos. WV–1233

and WV–1235). Under the draft

legislation, the special reclamation tax

would be increased from 3 cents to 14

cents per ton of clean coal mined for 39

months and reduced to 7 cents

thereafter with biennial review by an

advisory council.

By letter dated August 13, 2001,

WVDEP provided us with a schedule for

submitting statutory and regulatory

revisions to the Legislature in response

to our Part 733 notification

(Administrative Record No. WV–1234).

The letter specified that the State would

formally submit the program

amendment to us by April 30, 2002. The

letter also indicated that the statutory

changes could be presented to a special

session of the Legislature before that

date.

We released our financial analysis of

the State’s draft legislation on

September 7, 2001 (Administrative

Record No. WV–1236). In that report,

we concluded that the proposal would

generate sufficient revenues for about 9

years, but future adjustments would

have to be made to meet long-term

needs of the Fund.

On September 15, 2001, a special

session of the West Virginia Legislature

passed Senate Bill 5003, which is

intended to eliminate the deficit in the

Fund and provide for water treatment at

bond forfeiture sites. The Governor of

West Virginia (Governor) signed

Enrolled Senate Bill 5003 on October 4,

2001. The effective date of the bill is

October 4, 2001, but none of the

provisions could be implemented

without OSM approval. WVDEP

submitted the legislation as a program

amendment on September 24, 2001

(Administrative Record No. WV–1238).

III. Submission of the Amendment

By letter dated September 17, 2001

(Administrative Record Number WV–

1237), the WVDEP notified us of the

legislation that was approved during a

special session of the West Virginia

Legislature. By letter dated September

24, 2001 (Administrative Record

Number WV–1238), the WVDEP

formally submitted the legislation as a

proposed program amendment.

As discussed in Section II of this

preamble, the amendment, consisting of

statutory revisions, was submitted in

response to our Part 733 notification of

June 29, 2001, and certain outstanding

required program amendments. In

accordance with our Part 733

notification, the State informed us on

November 30, 2001, that it is developing

regulatory changes that will be

submitted to the Legislature during the

upcoming regular legislative session

that begins on January 9, 2002

(Administrative Record Number WV–

1253).

The amendment being considered

today consists only of changes to the

W.Va. Code, as amended by Enrolled

Senate Bill 5003. The amendment adds

W.Va. Code section 22–1–17, which

establishes the Special Reclamation

Fund Advisory Council (Advisory

Council). The amendment also revises

W.Va. Code 22–3–11 by increasing the

special reclamation tax rate and revises

W.Va. Code 22–3–12 by deleting certain

site-specific bonding provisions.

We announced receipt of the

proposed amendment on October 24,

2001 (66 FR 53749). In the same

document, we opened the public

comment period and provided an

opportunity for a public hearing or

meeting on the adequacy of the

amendment (Administrative Record

Number WV–1243). While the

amendment consists of Enrolled Senate

Bill 5003, we also made Engrossed

Senate Bill 5003 available for public

review and comment. With a few

exceptions, Engrossed Senate Bill 5003

is substantively identical to Enrolled

Senate Bill 5003. However, the

engrossed bill clearly shows, via

underscoring and strikethroughs, most

of the statutory language that has been

added to or deleted from the W.Va.

Code as a result of the enactment of

Senate Bill 5003. We quoted the new

and revised provisions in their entirety

in the October 24, 2001, Federal

Register notice in which we asked for

public comment on the amendment. We

did not hold a public hearing or meeting

on the amendment because no one

requested one. The public comment

period closed on November 23, 2001.

We received comments on this

amendment from the U.S. Department of

Labor, Mine Safety and Health

Administration, and the U.S.

Environmental Protection Agency. In

addition, we received comments from

the West Virginia Highlands

Conservancy (WVHC); Morgan

Worldwide Mining Consultants, Inc.,

consultant for the WVHC; and the West

Virginia Coal Association, Inc.

On November 6, the WVHC requested

that the comment period on the

amendment be extended through

December 14, 2001 (Administrative

Record No. WV–1245). On November 9,

2001, we denied the request

(Administrative Record Number WV–

1245). See Section V., ‘‘Public

Comments’’ Item 4, ‘‘Alleged abuse of

discretion by failing to grant an

extension to the comment period,’’

below.

IV. OSM’s Findings

This section contains our findings on

the amendment.

As stated above in Section II, we

notified the State in accordance with 30

CFR 733.12(b) that it must submit fullyenacted and adopted statutory and

regulatory revisions to fix its ABS

within 45 days after the close of the

2002 regular legislative session. We

estimate this deadline will occur about

April 23, 2002. This rule announces our

decision to approve the amendment,

based on the findings in this section of

the preamble. However, because of the

complexity of the issues concerning the

long-term solvency of the ABS, we are

deferring decision on the broader issue

of whether the State has fully fixed its

ABS. We will use the time remaining

between now and the deadline

mentioned above to conduct further

analysis and to allow all interested

parties the necessary time to complete a

comprehensive review. We will publish

a separate notice in the Federal Register

soliciting further comments on the effect

these amendments have on the ABS and

whether additional measures are needed

to restore full consistency with Federal

ABS requirements.

Under 30 CFR 732.17(h)(10), we must

use the applicable criteria in 30 CFR

732.15 in approving or disapproving

State program amendments. Because

this amendment pertains only to

performance bonds, the applicable

67448 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

criteria are those in 30 CFR 732.15(b)(6).

That paragraph provides that the State

regulatory authority must have the

authority under State laws and

regulations—and the State program

must include provisions—to

‘‘[i]mplement, administer and enforce a

system of performance bonds and

liability insurance, or other equivalent

guarantees, consistent with the

requirements of subchapter J of [30 CFR

Chapter VII].’’ As discussed in Section

II of this preamble, the Secretary made

the finding required by 30 CFR

732.15(b)(6) when he conditionally

approved the West Virginia ABS on

January 21, 1981, with full approval

following on March 1, 1983.

The relevant provisions of subchapter

J are those in 30 CFR 800.11(e), which

establishes criteria for approval of an

ABS as part of a State or Federal

program. Therefore, our findings focus

on those provisions of the amendment

relevant to the criteria in 30 CFR

800.11(e). We do not necessarily discuss

changes that are not pertinent to those

criteria.

OSM Directive STP–1 interprets the

requirements of 30 CFR 800.11(e) as

they pertain to State program

amendment approval. Appendix 12 of

Directive STP–1 specifies that, once the

Secretary approves an ABS, we may

approve subsequent revisions to the

ABS through the State program

amendment process as long as those

revisions do not adversely impact

previous findings. The directive further

states that, when a proposed

amendment concerns an ABS that no

longer meets the criteria in 30 CFR

800.11(e), we may approve the

amendment even if it does not fully

remedy all deficiencies, provided we

find that the amendment does not

adversely affect the solvency of the

ABS. Based upon this rationale, we may

approve any amendment that improves

the ABS, even as we defer on the

question of whether the amendment

fully restores solvency or compliance

with the other requirements of 30 CFR

800.11(e).

We find that this amendment will

improve the solvency of the ABS by

adding approximately $1.9 million per

month to the Special Reclamation Fund,

beginning January 1, 2002. However,

because this tax rate increase cannot

take effect without our approval, we

believe that delaying a decision on these

funding enhancements until we decide

the broader question of whether the

amendment fully satisfies 30 CFR

948.16(lll), as a commenter advocates,

would be counterproductive. Our

findings do not attempt to determine

whether the ABS as revised by this

amendment would be fully consistent

with the criteria in 30 CFR 800.11(e).

Instead, we conclude that the

amendment improves the ability of the

ABS to comply with those criteria. As

discussed above, we will separately

determine, after opportunity for further

comment, whether this amendment has

satisfied all outstanding requirements or

whether additional measures are

needed.

See Section II above, for a review of

the history of our approval of West

Virginia’s ABS and the circumstances

that preceded the State’s submittal of

this amendment.

1. W.Va. Code 22–1–17 Special

Reclamation Fund Advisory Council

This new section creates the Advisory

Council.

Purpose and Operation of the Advisory

Council

Senate Bill 5003 creates the Advisory

Council to ensure ‘‘the effective,

efficient and financially stable operation

of the special reclamation fund.’’ As

required by W.Va. Code 22–1–17, the

Advisory Council must ‘‘study the

effectiveness, efficiency, and financial

stability of the special reclamation fund

with an emphasis on development of a

financial process that ensures the longterm stability of the special reclamation

program.’’ The Advisory Council must

submit an annual report to the West

Virginia Legislature and the Governor

on the adequacy of the special

reclamation tax (see Finding 2) and the

fiscal condition of the Fund. The report

must include recommendations as to

whether any adjustments to the special

reclamation tax should be made,

considering the cost, timeliness and

adequacy of bond forfeiture reclamation,

including water treatment.

The Advisory Council will consist of

eight members, including the Secretary

of the WVDEP (or designee), the

Treasurer of the State of West Virginia

(or designee), and the Director of the

National Mine Land Reclamation Center

at West Virginia University. In addition,

the Governor will appoint five members:

four representing the interests of the

coal industry, environmental protection

organizations, coal miners, and the

general public; and one who, by training

and profession, is an actuary or

economist.

The Federal regulations at 30 CFR

800.11(e)(1) require that an ABS ensure

that the regulatory authority has

sufficient money to complete the

reclamation plan for any areas which

may be in default at any time. We find

that the Advisory Council, which has a

statutory mandate to study the

effectiveness, efficiency, and financial

stability of the Fund, should prove

useful in helping the ABS comply with

30 CFR 800.11(e). Therefore, we are

approving the addition of W.Va. Code

22–1–17 to the West Virginia program.

2. W.Va. Code 22–3–11 Bonds; Amount

and Method of Bonding; Bonding

Requirements; Special Reclamation Tax

and Fund; Prohibited Acts; Period of

Liability

a. Incremental Bonding—Bond Amount

In W.Va. Code 22–3–11(a), the State

has increased the amount of the penal

bond from one thousand dollars per acre

to not less than one thousand dollars

nor more than five thousand dollars for

each acre or fraction thereof. This

revision clarifies that incremental

bonding is subject to the same per-acre

bonding rate range as found in W.Va.

Code 22–3–12(b)(1), which pertains to

site-specific bonding of an entire permit

area.

We find that this change would

improve the ability of the West Virginia

ABS to comply with 30 CFR 800.11(e).

Therefore, we are approving it.

b. Use of Funds

As amended, W.Va. Code 22–3–11(g)

provides that moneys accrued in the

Fund are reserved for the purposes set

forth in W.Va. Code 22–3–11, which

concerns bonds, and W.Va. Code 22–1–

17, which concerns the Advisory

Council. The Legislature also added

language to prohibit the expenditure of

moneys from the Fund to reclaim lands

that are ‘‘eligible for abandoned mine

land (AML) reclamation funds under

article two of this chapter.’’

The latter change is apparently related

to section 402(g)(4)(B) of SMCRA. As

enacted on November 5, 1990, that

provision authorizes use of AML

reclamation funds to perform land

reclamation on, and treat pollutional

discharges of water from, (1)

unreclaimed sites that were mined after

August 4, 1977, under a program other

than a permanent regulatory program

approved by the Secretary, and (2)

permanent program bond forfeiture sites

with surety bonds for which the surety

became insolvent on or before

November 5, 1990. In both cases,

SMCRA authorizes use of AML

reclamation funds only if funds

available from the bond or other form of

financial guarantee or from any other

source are not sufficient to provide

adequate reclamation or abatement.

West Virginia revised its Abandoned

Mine Lands and Reclamation Act and

its AML Plan in response to the addition

of section 402(g)(4)(B) to SMCRA.

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67449

However, as discussed in the March 26,

1993, Federal Register (58 FR 16353,

16354), we deferred a decision on the

State’s proposed revisions because they

were not fully consistent with the

Federal provisions.

Because of our deferral, addition of

the phrase ‘‘where the land is not

eligible for abandoned mine land

reclamation funds under article two of

this chapter’’ to W.Va. Code 22–3–11(g)

does not preclude use of moneys from

the Fund to reclaim any site for which

a bond is required under 30 CFR Part

800 and section 509 of SMCRA.

Therefore, we find that this revision to

W.Va. Code 22–3–11(g) is not

inconsistent with the bonding

requirements of 30 CFR Part 800 and

section 509 of SMCRA, and we are

approving it.

c. Water Treatment Expenditures

The State has deleted a provision in

W.Va. Code 22–3–11(g) that limited

spending from the Fund for water

treatment systems to 25 percent of the

annual amount of the fees collected.

This provision restricted expenditures

for water treatment purposes, without

regard to the amount needed to

adequately treat such sites and ensure

compliance with applicable effluent

limitations and water quality standards.

The deletion of this provision is

necessary to provide for the complete

abatement or treatment of pollutional

discharges of water from bond forfeiture

sites.

The deletion of the 25 percent

limitation partially satisfies the

requirement codified at 30 CFR

948.16(jjj). However, to fully satisfy this

requirement, the State must also delete

the 25-percent limitation in its

regulations at Code of State Regulations

(CSR) 38–2–12.5(d). Under 30 CFR

948.16(jjj) the State must revise W.Va.

Code 22–3–11(g) and CSR 38–2–12.5(d)

to remove the limitation on the

expenditure of funds for water treatment

or to otherwise provide for the treatment

of polluted water discharged from all

bond forfeiture sites. As mentioned

above, WVDEP is in the process of

further revising its regulations. The

State has said that it plans to delete the

25-percent limitation in its regulations

at CSR 38–2–12.5(d) during the

upcoming regular legislative session.

In addition, revised subsection 22–3–

11(g) states that the Secretary ‘‘may,’’

rather than ‘‘shall,’’ ‘‘use the special

reclamation fund for the purpose of

designing, constructing and maintaining

water treatment systems when they are

required for a complete reclamation of

the affected lands * * *.’’ Ordinarily,

the use of the word ‘‘may’’ implies

discretion. However, the West Virginia

Supreme Court of Appeals has

determined that the WVDEP has a

mandatory duty to use bond moneys for

acid mine drainage treatment. State ex

rel. Laurel Mountain v. Callaghan, 418

S.E.2d 580 (1990). Moreover, in a

subsequent decision, the Court held that

W.Va. Code 22A–3–11(g), now codified

as 22–3–11(g), imposes upon the

WVDEP ‘‘a mandatory, nondiscretionary

duty to utilize moneys from the SRF

[Special Reclamation Fund] * * *, to

treat AMD [acid mine drainage] at bond

forfeiture sites when the proceeds of the

forfeited bonds are less than the actual

cost of reclamation.’’ State ex rel. West

Virginia Highlands Conservancy, Inc. v.

West Virginia DEP, 447 S.E.2d 920, 925

(1994).

Nevertheless, we have previously

found that the word ‘‘may,’’ in

subsection (g), could not be approved

because it provides the WVDEP with the

discretion not to use Fund moneys for

water treatment. (60 FR at 51902,

October 4, 1995.) Therefore, we are

requiring that the State amend its

program to specify that moneys from the

Fund must be used, where needed, to

pay for water treatment on bond

forfeiture sites. Otherwise, we find that

these amendments would improve the

ability of the West Virginia ABS to

comply with 30 CFR 800.11(e) and that

they are not inconsistent with that

regulatory provision. As such, we are

approving them. For the reasons

discussed above, we are revising 30 CFR

948.16(jjj) to reflect the statutory

changes and to require the State to

amend its program to specify that the

Fund must be used, where needed, to

pay for water treatment on bond

forfeiture sites.

d. Administrative Expenses

In W. Va. Code 22–3–11(g), the State

deleted a reference to Articles 2 and 4

of W. Va. Code Chapter 22. The revised

provision now only allows the WVDEP

to expend up to 10 percent of the total

annual assets in the Fund to implement

and administer the provisions of W. Va.

Code 22–3 and, to the extent that they

apply to the Surface Mine Board, W. Va.

Code 22B–1 and 4. This revision is

intended to prohibit the expenditure of

special reclamation funds for

administrative activities under Article 2,

Abandoned Mine Lands Reclamation

Act, and Article 4, Surface Mining and

Reclamation of Minerals Other Than

Coal.

Given the current deficit in the Fund,

we encouraged the State to modify this

language to limit expenditures from the

Fund for administrative expenses

relating only to the special reclamation

program. Furthermore, as discussed in

the March 20, 1986, Federal Register

and codified at former 30 CFR 948.15(i),

before making any withdrawals to cover

administrative expenses unrelated to

bond forfeitures, West Virginia must

request and receive OSM concurrence

for such withdrawals (54 FR 9649). To

assist in restoring and maintaining the

financial solvency of the Fund, this

requirement will continue to apply to

any withdrawals that are not related to

bond forfeiture reclamation

administrative expenses.

For the reasons discussed above, we

find that these revisions to W. Va. Code

22–3–11(g) would improve the ability of

the West Virginia ABS to comply with

30 CFR 800.11(e). Therefore, we are

approving them.

e. Special Reclamation Tax Rates/

Financial Analysis

New W. Va. Code 22–3–11(h)

increases the permanent special

reclamation tax rate from 3 cents per ton

of clean coal mined to 7 cents per ton

of clean coal mined. This subsection

also levies an additional tax of 7 cents

per ton of clean coal mined for a period

not to exceed 39 months. Collection of

both taxes will begin on or after January

1, 2002. Coal refuse reprocessing

operations that require a surface mining

permit must pay the tax on the clean

coal obtained by these mining methods.

Subsection 22–3–11(h) provides that

the 7-cent permanent tax rate may not

be reduced until the Fund has sufficient

moneys to meet the State’s reclamation

responsibilities under W. Va. Code 22–

3–11. Furthermore, this tax rate will be

reviewed and, if necessary, adjusted

annually by the Legislature upon

recommendation of the Advisory

Council (see Finding 1 above).

The increased per-ton tax assessments

are intended to eliminate the existing

Fund deficit and assure that the Fund

will have sufficient moneys to meet the

State’s long-term water treatment

responsibilities and complete the

reclamation plans of existing and future

bond forfeiture sites.

On September 7, 2001, we completed

a financial analysis of a draft version of

a legislative submission that would have

increased the special reclamation tax

rate (Administrative Record Number

WV–1236). At that time, we informed

the State that based on our analysis, it

appeared that a proposed tax rate of 14

cents for up to 39 months and 7 cents

thereafter would allow the WVDEP to

eliminate the current Fund deficit and

meet land reclamation and water

treatment needs for several years. Our

projections also indicated that,

following the period of surplus, the

67450 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

liabilities of the Fund would exceed its

assets in about nine years and that

future adjustments of the special

reclamation tax rate would be necessary

to maintain a positive balance to meet

future land reclamation and water

treatment needs.

However, as amended, the W. Va.

Code provides several mechanisms

intended to prevent the Fund from

deteriorating to a point where its

liabilities exceed its assets. First, W. Va.

Code 22–3–11(h) provides that the 7-

cent permanent special reclamation tax

rate may not be reduced until the Fund

has sufficient moneys to meet the State’s

reclamation responsibilities established

by law. Second, W. Va. Code 22–1–17

establishes the Advisory Council to

‘‘ensure the effective, efficient and

financially stable operation of the

Fund.’’ If the Advisory Council fulfills

its obligations, the West Virginia

Legislature and the Governor will have

the information and data they need to

make sound decisions and effective

adjustments to the special reclamation

tax rate so that the Fund will maintain

a positive balance to meet existing and

future land and water reclamation

obligations.

In addition, W. Va. Code 22–1–

17(f)(6) provides that the Advisory

Council must ‘‘[s]tudy and recommend

to the Legislature alternative approaches

to the current funding scheme of the

special reclamation fund, considering

revisions which will assure future

proper reclamation of all mine sites and

continued financial viability of the

state’s coal industry.’’ Because

reclamation of mine sites includes

meeting water treatment obligations,

and because subsection 22–1–17(f)(6)

provides a mechanism that, if properly

implemented, could help assure proper

future reclamation, we believe this

provision will greatly assist in ensuring

that the State is able to adequately

address the Fund’s long-term bond

forfeiture reclamation obligations.

For the reasons discussed above, we

find that the addition of W. Va. Code

22–3–11(h) would improve the ability of

the West Virginia ABS to comply with

30 CFR 800.11(e). Therefore, we are

approving it.

However, we are not deciding today

whether the amendments satisfy the

outstanding required amendment

pertaining to the financial adequacy of

the State’s ABS at 30 CFR 948.16(lll). 30

CFR 948.16(lll) requires that the State

eliminate the deficit in the ABS and

ensure that sufficient money will be

available to complete reclamation,

including the treatment of polluted

water, at all existing and future bond

forfeiture sites. Commenters on the

proposed amendments have expressed

concern that the Fund, as currently

financed by these amendments, may not

maintain a positive cash balance to meet

existing and future land reclamation

and water treatment needs. Commenters

provided information that we wish to

more fully consider in our decision as

to whether the amendment fully

satisfies the requirements of 30 CFR

948.16(lll). Therefore, we will publish

separately a new notice in the Federal

Register, soliciting further comments on

this issue.

f. Funding Mechanism

In W. Va. Code 22–3–11(k), the State

eliminated language providing that the

special reclamation tax must be

collected whenever the reclamation

liabilities of the State exceed the

accrued amount in the Fund. This

provision, in effect, allowed the accrued

monies in the Fund to sink below the

level of its reclamation and water

treatment obligations. The deletion of

this provision, in concert with the

addition of the new provision at

subsection 22–3–11(h) that prohibits the

special reclamation tax rate from being

reduced until the Fund has a positive

balance, together with the creation of

the Advisory Council at section 22–1–

17, is designed to help assure that the

Fund maintains a positive balance to

meet the State’s land reclamation and

water treatment responsibilities.

The deletion of this language from W.

Va. Code 22–3–11(k) satisfies the

requirement codified at 30 CFR

948.16(kkk) which provides that the

State must remove the provision at

(former) W. Va. Code 22–3–11(g) that

allows collection of the special

reclamation tax only when the Fund’s

liabilities exceed its assets. For the

reasons discussed above, we are

approving the deletion of the language

and we are removing 30 CFR

948.16(kkk).

g. Implementation of Amendments

New W. Va. Code 22–3–11(n)

provides that the modifications to W.

Va. Code 22–3–11 will become effective

upon approval by the appropriate

Federal agency or official. This

provision is consistent with the Federal

regulations at 30 CFR 732.17(g), which

provide that no changes to State laws or

regulations may take effect for purposes

of the State program until approved as

an amendment. Therefore, we are

approving this subsection.

3. W. Va. Code 22–3–12 Site-specific

Bonding

This amendment deletes W. Va. Code

22–3–12(b), which contained provisions

requiring the formulation of legislative

rules to implement site-specific bonding

requirements on an interim basis. West

Virginia subsequently developed and

adopted those rules in November 1992.

Those rules remained in effect until

April 1993, at which time the State

adopted final legislative rules.

Therefore, W. Va. Code 22–3–12(b) is no

longer relevant.

This amendment also deletes W. Va.

Code 22–3–12(f), which required the

WVDEP to report every 90 days on the

progress in developing and

implementing the site-specific bonding

requirements of W. Va. Code 22–3–12.

Final legislative rules, which are

codified at CSR 38–2–11.6, were

adopted by the Legislature in 1993 and

subsequently approved by OSM in 1995.

Neither of the deleted subsections has

a Federal counterpart. We find that their

deletion will not have an adverse

impact on the ability of the West

Virginia ABS to meet the criteria in 30

CFR 800.11(e). Therefore, we are

approving their removal from the West

Virginia program.

V. Summary and Disposition of

Comments

Public Comments

In response to our request for

comments from the public on the

proposed amendment (see Section III of

this document), we received comments

from the WVHC; Morgan Worldwide

Mining Consultants, Inc., a consultant

for the WVHC; and the West Virginia

Coal Association, Inc. (WVCA). Our

summary and disposition of those

comments appears below.

1. Criteria for Approving State Program

Amendments

a. The WVHC alleged that we have no

authority to approve the amendment

because the amendment does not fully

satisfy all outstanding requirements

concerning the ABS. In particular, the

WVHC argued against use of the

rationale that the amendment would

incrementally improve the effectiveness

of the bonding system as a basis for

approval of the amendment. According

to the WVHC, approval of the

amendment on that basis would be

illegal because the ABS would remain

in noncompliance with federal law. The

WVHC argued that use of this rationale

‘‘would eviscerate the requirements for

an adequate alternative bonding system

in 30 CFR 800.11(e) and 30 CFR

948.16(lll), and would allow

incremental improvements over a long

period of time that never achieved those

requirements.’’ The WVHC further

stated that deferral of an analysis of

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67451

whether the ABS as revised by the

amendment would satisfy the

requirements of 30 CFR 948.16(lll)

would cause an unreasonable delay in

remedying the inadequacies of the ABS.

Neither SMCRA nor the Federal

regulations prohibit us from approving

a proposed amendment that improves a

deficient State program. It would be

counterproductive for us to do

otherwise. As discussed in Finding 2

above, we believe the amendment will

greatly assist in ensuring that the West

Virginia ABS is able to comply with the

Federal ABS requirements at 30 CFR

800.11(e). Therefore, we are approving

it.

However, we are deferring our

decision as to whether these changes

allow us to remove the language at 30

CFR 948.16(lll), which requires that

West Virginia submit an amendment to

eliminate the ABS deficit and ‘‘to ensure

that sufficient money will be available

to complete reclamation, including the

treatment of polluted water, at all

existing and future bond forfeiture

sites.’’ As also discussed in Finding 2,

we will open a new comment period to

provide all interested parties with the

opportunity to fully assess and

comment on the impact that the

amendment will have on the State’s

ABS and comment on whether the

amendment is sufficient to justify

removal of the required amendment at

30 CFR 948.16(lll). When that comment

period closes, we will address all

comments received in response to that

comment period as well as all

comments received in response to the

comment period for this amendment

that we have not responded to in this

preamble.

b. The WVCA alleged that the

amendment is inconsistent with Federal

law and regulations because ‘‘SMCRA

neither addresses the need to bond for

potential discharges of polluting water,

nor does it create a special fund to

supplement site specific bonds to aid in

that reclamation.’’ However, the WVCA

argued that we must nonetheless

approve the amendment because ‘‘[t]he

provisions of § 505(b) of SMCRA

expressly provide that a State law that

imposes requirements not found in

SMCRA, or ones more stringent than

those required by the federal program

are not legally defective by reason of

that inconsistency.’’

We disagree with the commenter on

both points. As discussed in Finding

A.1.b. in the October 4, 1995, Federal

Register (60 FR 51900, 51901–02),

which concerns a different West

Virginia ABS amendment, both SMCRA

and the Federal regulations effectively

require that the bond cover the cost of

completing the reclamation plan in the

event of forfeiture, including the

expense of treating any postmining

pollutional discharges that develop.

And section 509(c) of SMCRA expressly

provides for the development of

alternative bonding systems such as the

one in place in West Virginia. Each ABS

must meet the criteria established in 30

CFR 800.11(e).

With respect to the commenter’s

second argument, section 505(a) of

SMCRA prohibits us from superseding a

State law or regulation ‘‘except insofar

as such State law or regulation is

inconsistent with the provisions of this

Act.’’ Section 505(b) provides that we

may not construe State laws or

regulations that provide for more

stringent land use and environmental

controls as inconsistent with SMCRA. It

also provides that any provision of State

law or regulation ‘‘for which no

provision is contained in this Act shall

not be construed to be inconsistent with

this Act.’’ In other words, section 505

precludes us from superseding a State

statutory or regulatory provision merely

because the State provision is more

stringent or has no Federal equivalent.

However, contrary to the commenter’s

assertion, section 505 places no

affirmative duty on us to approve the

pertinent provision as part of the State

program. Furthermore, we would not

approve a State provision that has no

direct SMCRA counterpart if we

determined that the State provision

would conflict with a SMCRA-related

requirement.

2. Reclamation Cost Estimates

The WVHC stated that we misled the

public and State Legislature by claiming

that the amendment would solve the

State’s decades-long ABS deficit.

Specifically, the WVHC stated that our

September 7, 2001, financial analysis of

the draft version of this amendment

grossly misrepresents the ability of the

amendment to raise sufficient revenues

to make the fund solvent, and provide

an adequate reserve to promptly reclaim

future forfeiture sites. We disagree.

We note that the commenters on the

amendment widely disagree on the

effectiveness of the amendment to solve

the financial problems of the ABS.

However, our September 7, 2001,

financial analysis represents our best

estimate of the effect that the draft

version of the amendment would have

on the ABS, given the information

available to us at the time. By giving

commenters and ourselves more time,

during the new comment period

referenced above, to study the potential

impacts of the proposed changes, we

will assure a well reasoned decision as

to whether the amendment fully

rectifies the long-term financial

problems of the ABS.

3. Requirement to Bond for Treatment of

Pollutional Discharges

The WVCA stated that SMCRA does

not address the need to bond for

potential discharges of polluting water

and that our authority to impose that

requirement at 30 CFR 948.16(lll)

remains in question. The WVCA noted

that the National Mining Association

has filed suit in Federal court in

Tennessee to have a similar program

requirement there declared illegal. For

these reasons, the WVCA asserted, our

reference to 30 CFR 948.16(lll) is

inappropriate.

The litigation referred to by WVCA

(National Mining Association v. Norton,

Civil Action No. :00–0549, E.D. Tenn.)

has no current impact on the validity of

the mandate imposed by OSM at 30 CFR

948.16(lll). Indeed, the court in that

litigation has not yet decided whether

SMCRA requires operators to post bonds

to cover the costs of pollutional

discharge treatment. Moreover, for the

reasons stated in that litigation, and in

our response to comments in this

rulemaking in Item 1.b. above, we

believe that SMCRA clearly does require

operators to treat pollutional discharges

during and after mining and reclamation

until all applicable effluent limitations

and water quality standards are met,

and that, therefore, bonds must be

posted to cover the costs of such

treatment. We have stated this principle

in several documents, including our

decision on a prior West Virginia

amendment as announced in the

October 4, 1995, Federal Register (60 FR

51900, 51902), and our March 31, 1997,

‘‘Policy Goals and Objectives on

Correcting, Preventing and Controlling

Acid/Toxic Mine Drainage.’’ For these

reasons, we disagree with WVCA’s

assertion that the requirement in 30 CFR

948.16(lll) is inappropriate.

4. Alleged Abuse of Discretion by

Failing to Grant an Extension to the

Comment Period

In a letter dated November 6, 2001

(Administrative Record Number WV–

1245), the WVHC requested an

extension of the public comment period

on the State program amendment. By

letter dated November 9, 2001

(Administrative Record Number WV–

1246), we denied the request. WVHC

stated in its comments to this

amendment that we abused our

discretion by denying its request.

We declined to reopen the comment

period for two reasons. One, an

extension would delay our decision on

67452 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

the amendment, which could result in

a loss of badly needed revenues,

possibly $1.9 million per month, to the

Fund. Two, we agree with WVHC that,

because of the complexity and the

volume of material related to questions

about how the amendment will affect

the West Virginia program, additional

time is needed by all interested parties

to assess the effect of the amendment.

Consequently, we have decided to open

a new comment period on the broader

question of whether the amendment

fully satisfies the requirement at 30 CFR

948.16(lll) concerning the adequacy of

the State’s ABS. The new comment

period will allow WVHC and all

interested parties, including OSM,

valuable additional time needed to

thoroughly review those materials and

assess whether the changes fully correct

the deficiencies in the State’s ABS.

Comments submitted in response to

the comment solicitation for the

amendment that we are approving today

need not be resubmitted. All comments

submitted on the current amendment

that we have not addressed in this

preamble will be addressed in full

following the closure of the new

comment period.

5. Other WVHC Comments

The WVHC stated that the proposed

amendment satisfies 30 CFR

948.16(kkk), but not 30 CFR 948.16(jjj)

nor (lll). We agree that the amendment

satisfies 30 CFR 948.16(kkk). See

Finding 2.f. However, as we state in

Finding 2.c., the amendment partially

satisfies 30 CFR 948.16(jjj). To fully

satisfy 30 CFR 948.16(jjj), the State must

also delete the 25-percent limitation for

water treatment in its regulations at CSR

38–2–12.5(d).

As we state in Finding 2.e., we are

deferring our decision as to whether the

amendment satisfies 30 CFR 948.16(lll)

regarding the adequacy of the ABS. We

will open a comment period in the near

future to solicit comments on whether

the amendment satisfies 30 CFR

948.16(lll).

6. Morgan Worldwide Mining

Consultants, Inc. Comments

All of the comments submitted by this

commenter pertain to our September 7,

2001, financial analysis of the draft

version of the amendment submitted by

the State. As we discussed above, we

will address all comments relating to

our September 7, 2001, financial

analysis at a later date. We will open a

new comment period to ask for

comments relating to 30 CFR 948.16(lll).

7. Other WVCA Comments

This WVCA expressed support for the

amendment and urged us to approve the

amendments. As noted above in the

findings, we are approving the

amendments.

The WVCA complimented the

WVDEP and the State Legislature for

developing comprehensive legislation

that, it said, will address the question of

proper funding for bond forfeiture sites.

In response, we note that although we

are approving the amendments, we are

not deciding today the broader question

of whether the amendment satisfies 30

CFR 948.16(lll), regarding the adequacy

of the ABS. We will open a new

comment period to ask for comments

relating to 30 CFR 948.16(lll).

The remaining comments submitted

by this commenter pertain to our

September 7, 2001, financial analysis of

the draft version of the amendment

submitted by the State. We will address

all comments relating to our September

7, 2001, financial analysis in a decision

we will ultimately render on the broader

issue of whether the amendment

satisfies the requirements of 30 CFR

948.16(lll).

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and

section 503(b) of SMCRA, we requested

comments on the amendment from

various Federal agencies with an actual

or potential interest in the West Virginia

program (Administrative Record

Number WV–1239). The U. S.

Department of Labor, Mine Safety and

Health Administration (MSHA)

responded and stated that it finds no

issues or impact upon miner’s health

and safety with the State amendment

(Administrative Record Number WV–

1248).

Environmental Protection Agency (EPA)

Comments

Under 30 CFR 732.17(h)(11)(i) and

(ii), we are required to 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.). None of the revisions that

West Virginia made in this amendment

pertain to air or water quality standards.

Therefore, we did not ask EPA for its

concurrence on this amendment.

Under 30 CFR 732.17(h)(11)(i), by

letter dated September 28,

2001(Administrative Record No. WV–

1239), we requested comments from

EPA on this amendment

(Administrative Record Number WV–

1238). The EPA responded by letter

dated November 13, 2001

(Administrative Record Number WV–

1247). The EPA commended the State

for eliminating the 25-percent

expenditure limitation for water

treatment. As we noted in Finding 2.c.

above, the deletion of the 25-percent

limitation only partially satisfies the

required program amendment codified

at 30 CFR 948.16(jjj). The State still

needs to revise its regulations to

conform with the statutory changes.

The EPA also recommended

eliminating the 39-month limit on the

temporary tax. According to the EPA,

this restriction could result in

insufficient funds for possible future

acid mine drainage treatment needs.

The EPA stated that the State

Legislature would always have the

option on an annual basis to adjust the

tax rate downward when the Fund is

determined to have sufficient resources.

As discussed in Finding 2.e. above,

the legislation provides that the

permanent 7-cent tax rate ‘‘may not be

reduced until the special reclamation

fund has sufficient moneys to meet the

reclamation responsibilities. * * *’’

In addition, as noted in that finding,

the amendment provides an appropriate

mechanism, via the Advisory Council,

to effectively manage and monitor the

financial condition of the Fund and the

adequacy of the special reclamation tax.

Therefore, we are approving the

amendment. However, we plan to solicit

further comments to determine if the

State’s ABS provides for the amount of

financial resources and kinds of

assurances that EPA feels is necessary if

the State is to meet long-term water

treatment needs at bond forfeiture sites.

VI. OSM’s Decision

Based on the above findings, we are

approving the amendment submitted by

West Virginia on September 24, 2001. In

addition, we are removing the required

program amendment at 30 CFR

948.16(kkk).

We are also revising 30 CFR 948.16(jjj)

to reflect the statutory changes and to

require the State to amend its program

to specify that moneys from the Fund

must be used, where needed, to pay for

water treatment on bond forfeiture sites.

We are also taking this opportunity to

update obsolete information at 30 CFR

948.10 and 948.20. The changes to 30

CFR 948.10 and 948.20 are technical

revisions that do not require public

comment.

To implement this decision, we are

amending the Federal regulations at 30

CFR part 948, which codify decisions

concerning the West Virginia program.

Our regulations at 30 CFR 732.17(h)(12)

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67453

specify that all decisions approving or

disapproving amendments will be

published in the Federal Register and

that they will be effective upon

publication, unless the notice specifies

a different date. We are making this

final rule effective immediately to

expedite the State program amendment

process and to assist the State in making

its program conform with the Federal

standards as required by the Act.

VII. 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 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 fact

that the State submittal which is the

subject of this rule is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

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 fact that the State submittal, which

is the subject of this rule, is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation did not impose an unfunded

mandate.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface

mining, Underground mining.

Dated: December 13, 2001.

Tim L. Dieringer,

Acting Regional Director, Appalachian

Regional Coordinating Center.

For the reasons set out in the

preamble, 30 CFR 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 948.10 is revised to read as

follows:

§ 948.10 State regulatory program

approval.

The West Virginia program, as

submitted on March 3, 1980, as clarified

on July 16, 1980, and as resubmitted on

December 19, 1980, is conditionally

approved, effective January 21, 1981.

Beginning on that date and continuing

until July 11, 1985, the Department of

Natural Resources was deemed the

regulatory authority in West Virginia for

all surface coal mining and reclamation

operations and all exploration

operations on non-Federal and nonIndian lands. Beginning on July 11,

1985, the Department of Energy was

deemed the regulatory authority

67454 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

pursuant to the program transfer

provisions of Enrolled Committee

Substitute for House Bill 1850, as signed

by the Governor of West Virginia on

May 3, 1985. Beginning on October 16,

1991, the Division of Environmental

Protection was deemed the regulatory

authority pursuant to Enrolled

Committee Substitute for House Bill 217

that was signed by the Governor on

October 25, 1991. On December 3, 1991,

OSM found that it was not necessary to

amend the State program to effect the

redesignation of the regulatory authority

from the Division of Energy to the

Division of Environmental Protection

(58 FR 42904, August 12, 1993).

Beginning on April 14, 2001, the

Department of Environmental Protection

was deemed the regulatory authority

pursuant to Enrolled Committee

Substitute for House Bill 2218. The bill,

which was signed by the Governor on

April 30, 2001, transferred programs

and redesignated the Division of

Environmental Protection as the

Department of Environmental Protection

within the executive branch. Copies of

the conditionally approved program, as

amended, are available at:

(a) Office of Surface Mining,

Charleston Field Office, 1027 Virginia

Street East, Charleston, West Virginia

25301–2816. Telephone: (304) 347–

7158.

(b) West Virginia Department of

Environmental Protection, Division of

Mining and Reclamation, 10 McJunkin

Road, Nitro, West Virginia 25143–2506.

Telephone: (304) 759–0510.

3. Section 948.15 is amended by

adding a new entry to the table in

chronological order by ‘‘Date of final

publication’’ 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

*******

September 24, 2001 ........... December 28, 2001 ............ W. Va. Code 22–1–17; 22–3–11(a), (c), (d), (g) through (n); 22–3–12(a) through (f).

4. Section 948.16 is amended by

removing and reserving paragraph (kkk)

and revising paragraph (jjj) to read as

follows:

§ 948.16 Required regulatory program

amendments.

* * * * *

(jjj) By March 28, 2002, West Virginia

must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to revise

CSR 38–2–12.5(d) to remove the 25-

percent limitation on the expenditure of

funds for water treatment or to

otherwise provide for the treatment of

polluted water discharged from all bond

forfeiture sites. In addition, the State

must amend its program to specify that

moneys from the Special Reclamation

Fund must be used, where needed, to

pay for water treatment on bond

forfeiture sites.

* * * * *

5. Section 948.20 is revised to read as

follows:

§ 948.20 Approval of State abandoned

mine land reclamation plan.

The West Virginia Abandoned Mine

Reclamation Plan as submitted on

October 29, 1980, and as amended on

December 12, 1980, is approved

effective February 23, 1981. Copies of

the approved plan are available at the

following locations:

(a) Office of Surface Mining,

Charleston Field Office, 1027 Virginia

Street East, Charleston, West Virginia

25301–2816. Telephone: (304) 347–

7158.

(b) West Virginia Department of

Environmental Protection, Abandoned

Mine Lands and Reclamation, 10

McJunkin Road, Nitro, West Virginia

25143–2506. Telephone: (304) 759–

0521.

[FR Doc. 01–31612 Filed 12–27–01; 8:45 am]

BILLING CODE 4310–05–P