West Virginia Regulatory Program
| Citation | 85 FR 70972 |
| Record Number | 2020-23214 |
| Published date | 06 November 2020 |
| Section | Rules and Regulations |
| Court | Surface Mining Reclamation And Enforcement Office |
Federal Register, Volume 85 Issue 216 (Friday, November 6, 2020)
[Federal Register Volume 85, Number 216 (Friday, November 6, 2020)]
[Rules and Regulations]
[Pages 70972-70975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23214]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-119-FOR (Interim) OSM 2012-0013; WV-121-FOR; OSM-2013-0010 S1D1S
SS08011000 SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an 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). West Virginia is
submitting a proposed amendment to revise the West Virginia Surface
Coal Mining and Reclamation Act (WVSCMRA) by creating a new section
relating to the award of attorney fees and costs by the Surface Mine
Board. On July 11, 2012, OSMRE on an interim basis, approved statutory
amendments (WV-119) to the West Virginia regulatory program under
SMCRA. West Virginia revised the WVSCMRA to effect changes concerning
the special reclamation tax and apportionment of this tax.
DATE: The effective date is December 7, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Director,
Charleston Field Office, Telephone: (412) 937-2827. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendments
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the West Virginia Program
Section 503(a) of the Act (30 U.S.C. 1253(a)) 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 State program includes, among other
things, State laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act and consistent with
the Federal regulations. 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. Submission of the Amendments
By letter dated and received by OSMRE on September 11, 2013
(Administrative Record No. WV-1584), the West Virginia Department of
Environmental Protection (WVDEP) submitted an amendment to revise
WVSCMRA. Enrolled Senate Bill 497 created a new section in the West
Virginia Code, designated as Sec. 22-3-33, relating to the award of
attorney fees and costs by the Surface Mine Board (SMB), which replaced
the Reclamation Board of Review (RBR), and Courts in appeals from
actions taken by WVDEP under the approved State surface mining program.
In 1994, the West Virginia Legislature adopted House Bill 4065
(Administrative Record No. WV-933). This bill deleted the provisions
dealing with the RBR and replaced them in another Chapter and Article
of the West Virginia Code with provisions establishing the current SMB,
which performs the same functions formerly performed by the RBR. OSMRE
approved the provisions establishing the SMB on February 21, 1996, (61
FR 6511) (Administrative Record No. WV-1022).
On April 27, 2012, West Virginia submitted a program amendment, WV-
119-FOR, to revise its WVSCMRA to effect changes concerning the special
reclamation tax and apportionment of this tax. This amendment was
intended to increase and extend the special reclamation tax. Moreover,
a specific portion of this tax was allocated to the Special Reclamation
Water Trust Fund for the purpose of designing, constructing and
maintaining water treatment systems on forfeited mine sites. We
approved the reinstatement of the special reclamation tax, its increase
to twenty-seven and nine-tenths cents per ton of clean coal mined, as
well as fifteen cents of the amount collected allocated for deposit to
the Special Reclamation Water Trust Fund on a temporary basis. OSRME's
approval took effect upon publication of this interim rule in the
Federal Register on July 11, 2012 (77 FR 40793) (Administrative Record
No. WV-1583).
III. OSMRE's Findings
A. WV-121-FOR: WVSCMRA Sec. 22-3-33--Award of Attorney Fees, Costs,
and Expenses.
A new section is created in the West Virginia Code, designated as
Sec. 22-3-33 to award attorney fees and costs by the SMB and courts of
appeals from actions taken by the WVDEP under the approved State
surface mining program. The SMB or the court may authorize an award to
the petitioner the amount of cost and expenses, including attorney
fees.
This action is being taken due to the deletion of State statutory
provisions from the approved State program which provided that any
person involved in any administrative or judicial proceeding is
entitled to reimbursement of all costs and expenses, including attorney
fees, incurred by his participation in proceedings as determined by the
SMB or State court.
We find the proposed State statutory revisions, as amended, to be
no less effective than the Federal requirements at 43 CFR 4.1295 and no
less stringent than section 525(e) of SMCRA (30 U.S.C. 1275), which
states that costs and expenses, including attorney fees that are
reasonably incurred may be awarded, and can be approved.
B. WV-119-FOR: WVSCMRA Sec. 22-3-11(h)(1)--Special Reclamation Tax
Subsection 22-3-11(h)(1) of the WVSCMRA is substantively amended by
increasing the amount of the special reclamation tax to twenty-seven
and nine-tenths cents per ton of clean coal mined. The former special
reclamation tax, effective as of July 1, 2009, required remittance of
fourteen and four-tenths cents per ton of clean coal mined; the
[[Page 70973]]
collection of this tax is eliminated and replaced with the
aforementioned amount. Additionally, the amended language requires
fifteen cents per ton of the collected twenty-seven and nine-tenths
cents per ton, be deposited in the Special Reclamation Water Trust Fund
(the Fund). Historically, although not codified, WVDEP allocated three
cents per ton of clean coal mined to finance the Fund, resulting in a
severely underfunded account at the time. It is forecasted that the
imposition of the new rate enumerated in Senate Bill 579 will ease the
strain placed on the Fund going forward.
Formatting and style changes have been effectuated via Senate Bill
579. Former paragraph (h)(1) is revised to add a caption entitled:
Rate, deposits and review; additionally, the paragraph has been
segregated to add four subparts that incorporate all the former
language.
This amendment, was approved on a temporary basis in the Federal
Register on July 11, 2012 (77 FR 40793) with an effective date of July
11, 2012. As amended, we find the proposed bonding revisions to be
consistent with and no less effective than the Federal provisions at 30
CFR 800.11(e) and 800.14, and no less stringent than sections 509 and
519 of SMCRA (30 U.S.C. 1259 and 1269), and therefore, they can be
approved on a permanent basis.
IV. Summary and Disposition of Comments
WV-121-FOR--Award of Attorney Fees, Costs and Expenses
Public Comments
We asked for public comments on the amendment, but none were
received.
Federal Agency Comments
In accordance with 30 CFR 732.17(h)(11)(i) and (ii) and section
503(b) of SMCRA (30 U.S.C. 1253(b)), on May 27, 2014, OSMRE requested
comments on the State's program amendment dated September 11, 2013,
from those agencies with an actual or potential interest in the West
Virginia program (Administrative Record No. WV-1586).
By letter received by OSMRE dated June 27, 2014 (Administrative
Record No. WV-1590), the Mine Safety and Health Administration (MSHA)
responded that it had no comments on the proposed changes to the
State's statutes as written.
By letter received by OSMRE dated June 20, 2014 (Administrative
Record No. WV-1594), the Natural Resources Conservation Service (NRCS)
responded that it had no comments on the amendment. It stated that,
while the surface coal mining industry needed to be accountable to the
principles of the WVSCMCA, the industry should not be harassed with
claims brought in bad faith.
WV-119-FOR --Bond Forfeiture Special Reclamation Tax
By letter dated July 7, 2011 (Administrative Record No. 1564), the
NRCS responded that it had no comments regarding the proposed changes
to the bonding requirements in this amendment.
By letter received on August 19, 2011 (Administrative Record No.
1565), the Army Corp of Engineers (COE) responded to our request for
comments. The COE responded that they have no comments regarding the
proposed changes to the bonding requirements at this time.
Environmental Protection Agency (EPA) Comments and Concurrence
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we
are required to solicit comments and 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.) OSMRE has determined that none of the State revisions pertained
to air or water quality standards; therefore, EPA's concurrence was not
requested on this amendment. By letter received by OSMRE dated July 24,
2014 (Administrative Record No. 1595), the EPA acknowledged that it had
no comments on WV-121-FOR. EPA concurrence was not requested for WV-
119-FOR as it does not relate to air or water quality standards.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under Federal regulations at 30 CFR 732.17(h)(4), we are required
to solicit comments from the SHPO and the ACHP on amendments that may
have an effect on historic properties. Because OSMRE determined that
none of the proposed State revisions pertained to historical
preservation, the SHPO and the ACHP were not asked to comment on this
amendment.
V. OSMRE's Decision
We are approving the changes in the approved State program made by
HB 4065 regarding the deletion of former West Virginia Code Chapter 22,
Article 4 about the RBR and also approving SB 497 and its authorization
to make changes in the approved State program about the award of
attorney fees and costs by the SMB and courts in appeals from actions
taken by WVDEP.
Furthermore, as discussed above, we are approving, on a permanent
basis, revisions to the increase in the State's special reclamation tax
at WVSCMRA Sec. 22-3-11(h)(1) to complete land reclamation and water
treatment activities at bond forfeiture sites.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948, which codify decisions concerning the West Virginia
program. In accordance with the Administrative Procedure Act, this rule
will take effect 30 days after the date of publication. Section 503(a)
of SMCRA (30 U.S.C. 1253(a)) requires that the State's program
demonstrate that the State has the capability of carrying out the
provisions of the Act and meeting its purposes. SMCRA requires
consistency of State and Federal standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule does not effect a taking of private property or otherwise
have taking implications that would result in public property being
taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of state program amendments is exempt from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from review under Executive Order
12866.
[[Page 70974]]
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department has determined
that this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register notice and
to changes to the Federal regulations. The review under this Executive
Order did not extend to the language of the state regulatory program or
to the program amendment that the State of West Virginia drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
Section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. West Virginia, through its approved
regulatory program, implements and administers SMCRA and its
implementing regulations at the state level. This rule approves an
amendment to the West Virginia program submitted and drafted by the
State, and thus is consistent with the direction to provide maximum
administrative discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision is on the West Virginia program that does not include Tribal
lands or regulation of activities on Tribal lands. Tribal lands are
regulated independently under the applicable, approved Federal program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking 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
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to OMB under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.
Regulatory Flexibility Act
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 corresponding 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 corresponding
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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule will not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
[[Page 70975]]
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director North Atlantic--Appalachian Region.
For the reasons set out in the preamble, the Office of Surface
Mining Reclamation and Enforcement amends 30 CFR part 948 as follows:
PART 948--WEST VIRGINIA
0
1. The authority citation for Part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. In Sec. 948.15 amend the table by adding in chronological order by
``Date of publication of final rule'' entries for ``W.Va. Code 22-3-33,
Attorney fees and costs'' and ``W.Va. Code 22-3-11(h)(1), Increase in
Special Reclamation Tax'' to read as follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
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Date of
Original amendment submission publication of Citation/description
date final rule
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* * * * * * *
September 11, 2013............ November 6, 2020. W.Va. Code 22-3-33,
Attorney fees and
costs.
April 25, 2011................ November 6, 2020. W.Va. Code 22-3-
11(h)(1), Increase
in Special
Reclamation Tax.
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[FR Doc. 2020-23214 Filed 11-5-20; 8:45 am]
BILLING CODE 4310-05-P
