Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Proposed Rules 67455

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–094–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Proposed rule; opening of

public comment period and opportunity

for public hearing on an amendment.

SUMMARY: We, the Office of Surface

Mining Reclamation and Enforcement

(OSM) are announcing the opening of a

public comment period and an

opportunity for public hearing or

meeting on the effectiveness of a

recently approved amendment to the

West Virginia surface mining regulatory

program (the West Virginia program)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA or the

Act) to satisfy the Federal requirements

regarding an alternative bonding system

(ABS). We announced approval of an

amendment to the West Virginia

program concerning the State’s ABS in

a final rule document that appears

elsewhere in this Federal Register issue.

The amendment consisted of changes to

the Code of West Virginia (W. Va. Code)

as contained in Enrolled Senate Bill

5003, and: established the Special

Reclamation Fund Advisory Council;

increased the special reclamation tax

rate to provide additional revenue for

the reclamation of bond forfeiture sites;

and deleted language that limited

expenditures from the State’s ABS for

water treatment.

We are opening this comment period

to provide all interested parties

additional time to review the relevant

materials and to submit comments on

whether the State amendment, as

submitted on September 24, 2001, and

approved by OSM elsewhere in this

Federal Register issue fully resolves all

ABS deficiencies and satisfies the

required program amendment codified

at 30 CFR 948.16(lll). That requirement

provides that the State must eliminate

the deficit in its ABS and ensure that

sufficient money will be available in the

future to complete reclamation,

including the treatment of polluted

water, at all existing and future bond

forfeiture sites. We are seeking comment

on whether the State’s amendment

provides a permanent, long-term

solution to the State’s ABS problems.

Comments previously submitted in

response to our October 24, 2001 (66 FR

53749), Federal Register notice on the

State’s amendment need not be

resubmitted.

This document gives the times and

locations that the State’s amendment

and other relevant documents are

available for your inspection, the

comment period during which you may

submit written comments on whether

the amendment fully satisfies all

outstanding requirements concerning

West Virginia’s ABS, and the

procedures that we will follow for the

public hearing or meeting, if one is

requested.

DATES: We will accept written

comments until 4:30 p.m. (local time),

on March 28, 2002. If requested, we will

hold a public hearing or meeting on the

amendment on March 25, 2002. We will

accept requests to speak at the hearing

until 4:30 p.m. (local time), on March

18, 2002.

ADDRESSES: You may mail or handdeliver written comments and requests

to speak at the hearing to Mr. Roger W.

Calhoun, Director, Charleston Field

Office at the address listed below.

You may review copies of the West

Virginia program, the recently approved

amendment, a listing of any scheduled

public hearings, and all written

comments received in response to both

this document and the recently

approved amendment at the addresses

below during normal business hours,

Monday through Friday, excluding

holidays. You may receive one free copy

of the State’s amendment, our Federal

Register notice approving the

amendment, our Financial Analysis on

the amendment, and comments

submitted in response to the State’s

amendment by contacting OSM’s

Charleston Field Office.

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.

West Virginia Department of

Environmental Protection, 10 McJunkin

Road, Nitro, West Virginia 25143,

Telephone: (304) 759–0510. The

approved amendment is posted at the

Division of Mining and Reclamation’s

Internet Web page: http://

www.dep.state.wv.us/mr.

In addition, you may review copies of

the approved amendment, our Federal

Register notice approving the

amendment, our Financial Analysis on

the amendment, and comments

submitted in response to the State’s

amendment during regular business

hours at the following locations:

Office of Surface Mining Reclamation

and Enforcement, Morgantown Area

Office, 75 High Street, Room 229, P.O.

Box 886, Morgantown, West Virginia

26507, 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.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

II. Background on West Virginia’s Alternative

Bonding System

III. Description of the Issues Being

Considered

IV. Public Comment Procedures

V. 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)

You can find background information

on West Virginia’s ABS in Section II of

the final rule document that appears

elsewhere in this Federal Register issue.

III. Description of the Amendment and

Issues Being Considered

By letter dated September 24, 2001

(Administrative Record Number WV–

1238), the WVDEP sent us a proposed

amendment to its program under

SMCRA. The amendment was submitted

in response to our 30 CFR part 733

67456 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Proposed Rules

notification of June 29, 2001

(Administrative Record Number WV–

1218). The program amendment added

new W. Va. Code section 22–1–17

which established the Special

Reclamation Fund Advisory Council

(Advisory Council). The amendment

also revised the provisions of W. Va.

Code sections 22–3–11 by increasing the

special reclamation tax rate from 3 cents

to 14 cents per ton of clean coal mined

for 39 months and reducing it to 7 cents

thereafter, and modified section 22–3–

12 by deleting certain site-specific

bonding provisions.

We announced receipt of the

amendment on October 24, 2001 (66 FR

53749), and we approved the

amendment in the final rule document

that appears elsewhere in this Federal

Register issue.

Why We Are Asking For Your

Comments Now

In our approval of the State’s

amendment elsewhere in this Federal

Register issue, we announced that we

were deferring our decision 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. We need the additional time to

fully evaluate the long-term solvency of

the State’s ABS. This is a complex issue

requiring not only a review of known

reclamation costs at existing bond

forfeiture sites, but also a projection of

future reclamation costs associated with

perpetual water treatment and

additional forfeitures. It also requires an

evaluation of ABS revenue estimates,

given the increased special reclamation

tax rate, and of whether the new rate is

sufficient to meet existing and future

bond forfeiture reclamation demands.

As provided by State law, the

Advisory Council is required to study

and recommend to the Legislature

alternative approaches to the current

funding scheme of the ABS. In addition,

the Advisory Council must study the

effectiveness, efficiency and financial

stability of the ABS with an emphasis

on the development of a financial

system that ensures the long-term

stability of the State’s special

reclamation program. We are interested

in receiving public comments on

whether the State’s current ABS, with

its reliance on a coal production tax and

a monitoring board, will fully satisfy the

Federal requirement at 30 CFR

948.16(lll), which provides that the

State must eliminate the deficit in its

ABS and ensure that sufficient money

will be available in the future to

complete reclamation, including the

treatment of polluted water, at all

existing and future bond forfeiture sites.

Other related issues that must be

considered and for which we are

seeking public comment include, but

are not limited to: accuracy of bond

forfeiture rates; accuracy of land

reclamation and water treatment cost

estimates; accuracy of State and Federal

bond forfeiture acid mine drainage

(AMD) inventories; accuracy of coal

production projections; compliance

with reclamation plans; timeliness of

bond forfeiture reclamation and bond

forfeiture collections; adequacy of the

increased special reclamation tax rate;

and adequacy and effectiveness of bond

forfeiture reclamation.

Additional time is also needed by all

interested parties, including OSM, to

complete a comprehensive review of all

documents that have been generated as

a result of this amendment and

submitted in response to our earlier

request for public comments. These

comments, together with any additional

comments that we may receive in

response to this notice, will help us

determine if the State’s ABS amendment

fully satisfies the outstanding required

amendment at 30 CFR 948.16(lll), or if

additional measures are needed by the

State to ensure consistency with Federal

ABS requirements.

IV. Public Comment Procedures

Under the provisions of 30 CFR

732.17(h), we are seeking your

comments on whether the State’s

September 24, 2001, amendment that

we have approved and appears

elsewhere in this Federal Register issue

renders the West Virginia ABS sufficient

and fully satisfies the requirements of

30 CFR 948.16(lll). We are interested in

receiving additional comments on those

bonding related issues identified above

in Section III to assist us in determining

whether or not the State’s amendment

fully satisfies the outstanding required

amendment at 30 CFR 948.16(lll).

Comments previously submitted in

response to our October 24, 2001 (66 FR

53749), Federal Register notice on the

State’s amendment need not be

resubmitted.

Written Comments

Send your written comments to OSM

at the address given above. Your written

comments should be specific, pertain

only to the issues proposed in this

rulemaking, and include explanations in

support of your recommendation(s). In

the final rulemaking, we will not

necessarily consider or include in the

administrative record any comments

received after the time indicated under

DATES or at locations other than the

Charleston Field Office.

Availability of Comments

We will make comments, including

names and addresses of respondents,

available for public review during our

normal business hours. We will not

consider anonymous comments. If

individual respondents request

confidentiality, we will honor their

request to the extent allowable by law.

Individual respondents who wish to

withhold their names or address from

public review, except for the city or

town, must state this prominently at the

beginning of their comments. We will

make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Public Hearing

If you wish to speak at the public

hearing, contact the person listed under

FOR FURTHER INFORMATION CONTACT by

4:30 p.m. (local time), on March 18,

2002. 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 the hearing.

To assist the transcriber and ensure an

accurate record, we request, if possible,

that each person who speaks at a 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.

If you are disabled and need special

accommodation to attend a public

hearing, contact the person listed under

FOR FURTHER INFORMATION CONTACT.

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 are open to

the public and, if possible, we will post

notices of the meetings at the locations

listed under ADDRESSES. We will make

a written summary of each meeting a

part of the Administrative Record.

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Proposed Rules 67457

V. 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 regulations.

Executive Order 12866—Regulatory

Planning and Review

This rule is exempt from review by

the Office of Management and Budget

(OMB) 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, to the extent

allowable by law, 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 such 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. 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 affect 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

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed State regulatory program

provision does not constitute a major

Federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined 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.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. 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 regulation.

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, geographic

regions or Federal, State, or local

government agencies; 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 a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

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.

[FR Doc. 01–31613 Filed 12–27–01; 8:45 am]

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