[Federal Register Volume 71, Number 106 (Friday, June 2, 2006)]
[Proposed Rules]
[Pages 31996-31999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8620]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-109-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
West Virginia proposes to revise the Code of West Virginia (W. Va. 
Code) as amended by Senate Bill 461 concerning water rights and 
replacement, and to revise the Code of State Regulations (CSR) as 
amended by Committee Substitute for House Bill 4135 by adding a 
postmining land use of Bio-oil Cropland, and the criteria for approving 
bio-oil cropland postmining land use.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on July 3, 2006. If requested, we will hold a public 
hearing on the amendment on June 27, 2006. We will accept requests to 
speak at a hearing until 4 p.m. (local time), on June 19, 2006.

ADDRESSES: You may submit comments, identified by WV-109-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include WV-109-FOR in the subject 
line of the message;
     Mail/Hand Delivery: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 
25301; or
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: You may review copies of the West Virginia program, this 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You may also receive one free copy of this amendment by 
contacting OSM's Charleston Field Office listed below.
    Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of

[[Page 31997]]

Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail: 
[email protected].
    West Virginia Department of Environmental Protection, 601 57th 
Street, SE., Charleston, WV 25304, Telephone: (304) 926-0490.
    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:
    Office of Surface Mining Reclamation and Enforcement, Morgantown 
Area Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 
26508, Telephone: (304) 291-4004. (By Appointment Only).
    Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Telephone: (304) 347-7158. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

    By letter dated April 17, 2006 (Administrative Record Number WV-
1462), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment consists of State Committee Substitute for House 
Bill 4135, which amends CSR 38-2 by adding a postmining land use of 
Bio-oil Cropland and criteria for approving bio-oil cropland as an 
alternative postmining land use for mountaintop removal mining 
operations with variances from approximate original contour. Also 
submitted is State Senate Bill 461, which amends W. Va. Code section 
22-3-24 relating to water rights and replacement. In its submittal of 
the amendment, the WVDEP stated that the codified time table for water 
replacement is identical to the one contained in the agency's policy 
dated August 1995 regarding water rights and replacement that is 
referenced in the Thursday, March 2, 2006, Federal Register (71 FR 
10764, 10784-85).
    The West Virginia Governor also signed Senate Bill 774, on April 4, 
2006, which amends language concerning definitions, offices, and 
officers within the Department of Environmental Protection. The 
amendments to Senate Bill 774 are non-substantive and do not require 
OSM approval. Therefore, the amendments to Senate Bill 774 can take 
effect as provided therein on June 9, 2006.
    West Virginia proposes the following amendments:

Senate Bill 461

    Senate Bill 461, which was passed by the Legislature on March 11, 
2006, and signed into law by the Governor on April 4, 2006, amends 
Article 3 of the West Virginia Surface Coal Mining and Reclamation Act 
(WVSCMRA). Specifically, section 22-3-24 concerning water rights and 
replacement, waiver of replacement is amended at subsection (c) by 
deleting the last sentence and by adding new subsections (d) and (h). 
As amended, section 22-3-24 provides as follows:

    22-3-24. Water rights and replacement; waiver of replacement.
    (a) Nothing in this article affects in any way the rights of any 
person to enforce or protect, under applicable law, the person's 
interest in water resources affected by a surface mining operation.
    (b) Any operator shall replace the water supply of an owner of 
interest in real property who obtains all or part of the owner's 
supply of water for domestic, agricultural, industrial or other 
legitimate use from an underground or surface source where the 
supply has been affected by contamination, diminution or 
interruption proximately caused by the surface mining operation, 
unless waived by the owner.
    (c) There is a rebuttable presumption that a mining operation 
caused damage to an owner's underground water supply if the 
inspector determines the following: (1) Contamination, diminution or 
damage to an owner's underground water supply exists; and (2) a 
preblast survey was performed, consistent with the provisions of 
section thirteen-a of this article, on the owner's property, 
including the underground water supply, that indicated that 
contamination, diminution or damage to the underground water supply 
did not exist prior to the mining conducted at the mining operation.
    (d) The operator conducting the mining operation shall: (1) 
Provide an emergency drinking water supply within twenty-four hours; 
(2) provide temporary water supply within seventy-two hours; (3) 
within thirty days begin activities to establish a permanent water 
supply or submit a proposal to the secretary outlining the measures 
and timetables to be utilized in establishing a permanent supply. 
The total time for providing a permanent water supply may not exceed 
two years. If the operator demonstrates that providing a permanent 
replacement water supply can not be completed within two years, the 
secretary may extend the time frame on [a] case-by-case basis; and 
(4) pay all reasonable costs incurred by the owner in securing a 
water supply.
    (e) An owner aggrieved under the provisions of subsections (b), 
(c) or (d) of this section may seek relief in court or pursuant to 
the provisions of section five, article three-a of this chapter.
    (f) The director shall propose rules for legislative approval in 
accordance with the provisions of article three, chapter twenty-
nine-a of this code to implement the requirements of this section.
    (g) The provisions of subsection (c) of this section shall not 
apply to the following: (1) Underground coal mining operations; (2) 
the surface operations and surface impacts incident to an 
underground coal mine; and (3) the extraction of minerals by 
underground mining methods or the surface impacts of the underground 
mining methods.
    (h) Notwithstanding the denial of the operator of responsibility 
for the damage of the owners [owner's] water supply or the status of 
any appeal on determination of liability for the damage to the 
owners [owner's] water supply, the operator may not discontinue 
providing the required water service until authorized by the 
division. Notwithstanding the provisions of subsection (g) of this 
section, on and after the effective date of the amendment and 
reenactment of this section during the regular legislative session 
of two thousand six, the provisions of this section shall apply to 
all mining operations for water replacement claims resulting from 
mining operations regardless of when the claim arose.

House Bill 4135

    Committee Substitute for House Bill 4135, which was passed by the 
Legislature on March 11, 2006, and signed into law by the Governor on 
April 4, 2006, amends CSR 38-2 by authorizing the WVDEP to promulgate

[[Page 31998]]

legislative rules. Subsection 38-2-7.2.e is amended by adding new 
paragraph 38-2-7.2.e.1. As amended, subsection 38-2-7.2.e provides as 
follows:

    7.2.e. Cropland. Land used primarily for the production of 
cultivated and close-growing crops for harvest alone or in 
association with sod crops. Land used for facilities in support of 
farming operations are included;
    7.2.e.1. Bio-oil Cropland. Agricultural production of renewable 
energy crops through long-term intensive cultivation of close-
growing commercial biological oil species (such as soybeans, 
rapeseed or canola) for harvest and ultimate production of bio-fuels 
as an alternative to petroleum based fuels and other valuable 
products;

    New paragraph 38-2-7.3.d is added to provide as follows:

    7.3.d. A change in postmining land use to bio-oil cropland 
constitutes an equal or better use of the affected land, as compared 
with pre-mining use for purposes of W. Va. Code 22-3-13(c) in the 
determination of variances of approximate original contour for 
mountaintop removal operations subject to section 38-2-7.8 of this 
rule;

    New subsection 38-2-7.8, concerning Bio-oil Crop Land, is added to 
provide as follows:

    7.8. Bio-oil Crop Land.
    7.8.1. Criteria for Approving Bio-oil Cropland Postmining Land 
Use.
    7.8.1.a. An alternative postmining land use for bio-oil cropland 
may be approved by the secretary after consultation with the 
landowner and or land management agency having jurisdiction over 
state or Federal lands: Provided, That the following conditions have 
been met.
    7.8.1.a.1. There is a reasonable likelihood for the achievement 
of bio-oil crop production (such as soybeans, rapeseed or canola) as 
witnessed by a contract between the landowner and a commercially 
viable individual or entity, binding the parties to the production 
of bio-oil crops for a measurement period of at least two years 
after the competition [completion] of all restoration activity 
within the permitted boundaries;
    7.8.1.a.2. The bio-oil crop reclamation plan is reviewed and 
approved by an agronomist employed by the West Virginia Department 
of Agriculture. The applicants shall pay for any review under this 
section;
    7.8.1.a.3. The use does not present any actual or probable 
hazard to the public health or safety or threat of water diminution 
or pollution;
    7.8.1.a.4. Bio-oil crop production is not:
    7.8.1.a.4.A. Impractical or unreasonable;
    7.8.1.a.4.B. Inconsistent with applicable land use policies or 
plans;
    7.8.1.a.4.C. Going to involve unreasonable delays in 
implementation; or
    7.8.1.a.4.D. In violation of any applicable law.
    7.8.2. Soil reconstruction specifications for bio-oil crop 
postmining land use shall be established by the W. Va. Department of 
Agriculture in consultation with the U. S. Natural Resources 
Conservation Service and based upon the standards of the National 
Cooperative Soil Survey and shall include, at a minimum, physical 
and chemical characteristics of reconstructed soils and soil 
descriptions containing soil-horizon depths, soil densities, soil 
pH, and other specifications such that constructed soils will have 
the capability of achieving levels of yield equal to, or higher that 
[than], those required for the production of commercial seed oils 
species (such as soybeans, rapeseed or canola) and meets [meet] the 
requirement of 14.3 of this rule.
    7.8.3. Bond Release.
    7.8.3.a. Phase I bond release shall not be approved until W. Va. 
Department of Agriculture certifies and the secretary finds that the 
soil meets the criteria established in this rule and has been placed 
in accordance with this rule. The applicants shall pay for any 
review under this section.
    7.8.3.b. The secretary may authorize in consultation with the W. 
Va. Department of Agriculture, the Phase III bond release only after 
the applicant affirmatively demonstrates, and the secretary finds, 
that the reclaimed land can support bio-oil production; and there is 
a binding contract for production which meets the requirements of 
subdivision 7.8.1.a of this rule; and the requirements of paragraph 
9.3.f.2 of this rule are met. The applicant shall pay for any review 
under this section.
    7.8.3.c. Once final bond release is authorized, the permittee's 
responsibility for implementing the bio-oil cropland reclamation 
plan shall cease.

III. Public Comment Procedures

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

Written Comments

    Send your written or electronic 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 recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Charleston Field Office may not be logged 
in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn: SATS NO. WV-109-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Charleston Field 
office at (304) 347-7158.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during 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 
name 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 p.m. (local time), on 
June 19, 2006. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
will be open to the public and, if possible, we

[[Page 31999]]

will post notices of meetings at the locations listed under ADDRESSES. 
We will make a written summary of each meeting a part of the 
Administrative Record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, Or Use Of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 11, 2006.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
 [FR Doc. E6-8620 Filed 6-1-06; 8:45 am]
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