[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Rules and Regulations]
[Pages 50843-50849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14228]


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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: Final rule; approval of amendment.

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SUMMARY: We 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 revised 
the Code of West Virginia (W. Va. Code) as amended by Senate Bill 461 
concerning water rights and replacement, and revised 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 as a postmining land use for 
mountaintop removal mining operations.

DATES: Effective Date: August 28, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158, E-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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. Submission of the 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 permanent regulatory program in 
accordance with 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 (AOC). The State also submitted 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 (Administrative 
Record Number WV-1425) 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 WVDEP. The amendments to Senate Bill 774 are non-
substantive changes to the West Virginia program that do not require 
OSM approval. Therefore, the amendments to Senate Bill 774 can take 
effect as provided therein on June 9, 2006.
    We announced receipt of the proposed amendment in the June 2, 2006, 
Federal Register (71 FR 31996). 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 proposed amendment (Administrative 
Record Number WV-1464). We did not hold a hearing or a meeting, because 
no one requested one. The public comment period closed on July 3, 2006. 
We received comments from two Federal agencies.

III. OSM's Findings

    Following are the findings that we made concerning the amendment 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We 
are approving the amendment in full. Any revisions that we do not 
specifically discuss below concern non-substantive wording or editorial 
changes and are approved herein without discussion.

[[Page 50844]]

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.

    The sentence that was deleted from Subsection (c) provided as 
follows:

    The operator conducting the mining operation shall: (1) Provide 
an emergency drinking water supply within twenty-four hours; (2) 
provide a temporary water supply within seventy-two hours; (3) 
provide a permanent water supply within thirty days; and (4) pay all 
reasonable costs incurred by the owner in securing a water supply.

    The deleted information quoted above was added, with modifications, 
as new Subsection 22-3-24(d). The language at new Subsection (d) is 
substantively identical to the language deleted from Subsection (c) and 
can be approved with the following understanding. At Subsection (d), 
item (3) no longer requires the operator to provide a permanent water 
supply within thirty days. As revised, the operator is required to 
begin, within 30 days, activities to establish a permanent water supply 
or submit a proposal to the WVDEP Secretary outlining the measures and 
timetables to be utilized in establishing a permanent water supply. The 
total time for providing a permanent water supply may not exceed two 
years. The new language also provides that if the operator demonstrates 
that providing a permanent replacement water supply can not be 
completed within two years, the WVDEP Secretary may extend the time 
frame on a case-by-case basis. Our evaluation of the new language at 
Subsection (d), item (3) follows.
    SMCRA at section 717 addresses water rights and replacement. 
Section 717(b) provides as follows:

    (b) The operator of a surface coal mine shall replace the water 
supply of an owner of interest in real property who obtains all or 
part of his supply of water for domestic, agricultural, industrial, 
or other legitimate use from an underground or surface source where 
such supply has been affected by contamination, diminution, or 
interruption proximately resulting from such surface coal mine 
operation.

    The implementing Federal regulations at 30 CFR 816.41(h) is 
substantively identical to section 717(b).
    Section 720(a)(2) of SMCRA concerning subsidence and replacement of 
a water supply provides that underground coal mining operations 
conducted after October 24, 1992, shall:

    (2) Promptly replace any drinking, domestic, or residential 
water supply from a well or spring in existence prior to the 
application for a surface coal mining and reclamation permit, which 
has been affected by contamination, diminution, or interruption 
resulting from underground coal mining operations. Nothing in this 
section shall be construed to prohibit or interrupt underground coal 
mining operations.

    The implementing Federal regulation at 30 CFR 817.41(j) essentially 
repeat the requirement provided at section 720(a)(2) of SMCRA.
    The SMCRA provisions and implementing Federal regulations described 
above require prompt replacement of water supplies, but they do not 
provide specific timetables for replacement. Moreover, neither SMCRA 
section 720(a)(2) nor the implementing Federal regulations at 30 CFR 
817.41(j) define the term ``prompt replacement'' of a water supply.
    The Federal provision at 30 CFR 817.41(j), concerning a drinking, 
domestic or residential water supply affected by underground mining 
activities conducted after October 24, 1992, was promulgated on March 
31, 1995 (60 FR 16722, 16749). In the preamble to that promulgation, 
OSM provided the following guidance concerning the meaning of the term 
``prompt replacement'' that was intended to assist regulatory 
authorities in deciding if water supplies have been ``promptly'' 
replaced:

    OSM believes that prompt replacement should typically provide: 
Emergency replacement, temporary replacement, and permanent 
replacement of a water supply. Upon notification that a user's water 
supply was adversely impacted by mining, the permittee should 
reasonably provide drinking water to the user within 48 hours of 
such notification. Within two weeks of notification, the permittee 
should have the user hooked up to a temporary water supply. The 
temporary water supply should be connected to the existing plumbing, 
if any, and allow the user to conduct all normal domestic usage such 
as drinking, cooking, bathing, and washing. Within two years of 
notification, the permittee should connect the user to a 
satisfactory permanent water supply. (60 FR 16727)


[[Page 50845]]


    We believe that the State's proposed provision, which provides that 
if the operator demonstrates that providing a permanent replacement 
water supply cannot be accomplished within two years, the WVDEP 
Secretary may extend the time frame on a case-by-case basis, is not 
unreasonable and provides the WVDEP with appropriate flexibility while 
continuing to require a replacement permanent water supply. Overall, 
the State's provision at W. Va. Code 22-3-24(d) provides for emergency, 
temporary, and permanent replacement of a water supply that is no less 
effective than the Federal requirements.
    We believe that the proposed flexibility is necessary because in 
some instances public water lines have to be extended by public service 
districts and in some rare instances these extensions may take longer 
than two years to complete. During this period, operators cannot 
provide the affected water supply owner a permanent water supply hook 
up. This may also be true in situations where private replacement wells 
are to be drilled, but drilling is delayed due to very unusual 
circumstances. In either situation, during the period of delay, the 
operator will have to post a performance bond in the amount of the 
estimated cost to replace the water supply, as provided by 30 CFR 
817.121(c)(5). The State counterpart to this Federal provision at CSR 
38-2-16.2.c.4 was previously approved by OSM on May 1, 2002 (67 FR 
21918-21919). It essentially requires that an escrow bond be posted 
whenever water supply replacement takes longer than 90 days to 
complete. Therefore, we find that W. Va. Code 22-3-24(d), item (3), is 
not inconsistent with SMCRA section 720(a)(2), which requires prompt 
replacement of water supplies, or the Federal regulations at 30 CFR 
817.41(j) concerning the prompt replacement of water supply, and it can 
be approved.
    New subsection (e) is being amended by including a reference to 
subsection (d). As amended, it states that a water supply owner 
aggrieved under the provisions of subsection (d) may seek relief in 
court or under the State claims procedures. We find that the proposed 
revision is in accordance with SMCRA section 720(a)(2) and consistent 
with the Federal water replacement requirements at 30 CFR 817.41(j) and 
it can be approved.
    The State proposes to redesignate Subsection (f) as subsection (g). 
Newly designated Subsection (g) limits the applicability of Subsection 
(c). While there have been no substantive changes in this new 
subsection, it is important to note that this provision was initially 
approved by OSM on November 12, 1999, with the understanding that it 
would not relieve an operator of replacing a water supply which is 
adversely affected by an underground mining operation. This same 
understanding continues in force (64 FR 61513).
    Under new Subsection (h), an operator cannot discontinue providing 
water service to an owner of an adversely affected water supply until 
authorized by the WVDEP. In addition, with the enactment of Subsection 
(h), the water supply replacement provisions of W.Va. Code 22-3-24 
apply to all surface and underground mining operations regardless of 
when the claim arose. We find that the proposed statutory provisions 
are not inconsistent with the Federal requirements at SMCRA sections 
717(b) and 720(a)(2) and they can be approved.

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 
legislative rules. The CSR 38-2-7.2 concerns premining and postmining 
land use categories. The CSR 38-2-7.2.e, concerning cropland land use 
category is amended by adding new paragraph 38-2-7.2.e.1 concerning 
``Bio-oil Cropland.'' As amended, Subsection 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;

    The Federal regulations at 30 CFR 701.5, under the definition of 
``Land use'' define ``Cropland,'' at paragraph (a) as land used for the 
production of adapted crops for harvest, alone or in rotation with 
grasses and legumes, that include row crops, small grain crops, hay 
crops, nursery crops, orchard crops, and other similar crops. While the 
Federal regulations do not specifically define ``bio-oil'' cropland, we 
find that as proposed, the State's definition of ``Bio-oil Cropland'' 
is consistent with and no less effective than the Federal definition of 
``Cropland'' at 30 CFR 701.5 and it can be approved.
    New Subsection 7.8, concerning bio-oil cropland, 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 [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 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

[[Page 50846]]

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.

    As noted above, W.Va. Code 22-3-24, CSR 38-2-7.8.1.a, 7.8.1.a.1 and 
7.8.2 contain typographical errors. We have inserted words in brackets 
which are intended to correct those errors. The most substantive change 
concerns Subsection 7.8.1.a.1. Instead of competition, we believe that 
the State intends that the measurement period for bio-oil cropland last 
for at least two years after ``completion'' of all restoration 
activities within the permitted boundaries. We encourage the State to 
correct both typographical errors at its earliest convenience.
    It is important to note that, as required by Subsection 7.8.2, 
constructed bio-oil cropland soils will have to achieve levels of yield 
equal to, or higher than those required for the production of 
commercial seed oil species (such as soybeans, rapeseed, or canola ) 
and meet the requirements of Subsection 14.3. Subsection 14.3 contains 
the topsoil requirements for all surface coal mining operations. In 
addition to meeting the reconstruction requirements of Subsection 7.8 
as established by the West Virginia Department of Agriculture and the 
U.S. Natural Resources Conservation Service, all bio-oil cropland soils 
will have to meet the requirements of Subsection 14.3. The cross 
reference to subsection 14.3 ensures that Subsection 7.8.2 is no less 
effective than the Federal topsoil requirements at 30 CFR 816.22.
    In addition, we should note that that bond release requirements at 
subsection 7.8.3.b provide that the WVDEP secretary may authorize final 
bond release, in consultation with the West Virginia Department of 
Agriculture, only after the applicant demonstrates and the secretary 
finds that (1) The reclaimed land can support bio-oil crop production, 
(2) there is a binding contract for that production, and (3) the 
requirements of Subsection 9.3.f.2 are met. Subsection 9.3.f.2 contains 
the reclamation success standards for areas to be used for cropland. 
Consistent with the Federal requirements at 30 CFR 816.116(c)(2), the 
State rules provide that, for areas to be used for cropland, the 
success of crop production from the mined area must be equal to or 
greater than that of the approved standard for the crop being grown 
over the last two consecutive growing seasons of the five growing 
season liability period, which commences at the date of the initial 
planting of the crop being grown. In addition to requiring that the 
area attain certain soil standards, the proposed rule requires a 
demonstration of actual bio-oil crop production. Because the proposed 
State rule references other requirements used to demonstrate attainment 
of revegetation success for cropland, we find that Subsection 7.8.3.b 
is no less effective than the Federal requirements at 30 CFR 816.116 
and 800.40(c) and it can be approved.
    The new provisions at CSR 38-2-7.8 provide supplemental criteria 
for the approval of bio-oil cropland as an alternative postmining land 
use for mountaintop removal mining operations with variances from AOC. 
The existing State provisions at W. Va. Code 22-3-13(c) and CSR 38-2-
14.10 continue to provide the requirements for approval and the 
environmental performance standards for a mountaintop removal mining 
operation with a variance from AOC.
    We note that the proposed provisions do not specifically provide 
that other applicable provisions of the approved State surface mining 
program continue to apply. However, there is nothing in proposed 
Subsection 7.8 that supersedes or negates compliance with other 
applicable provisions such as the permit approval requirements at W. 
Va. Code 22-3-22(c), the general provisions concerning premining and 
postmining land use at CSR 38-2-7.1, the alternative postmining land 
use requirements at CSR 38-2-7.3, the bond release requirements at CSR 
38-2-12.2 or the topsoil requirements at CSR 38-2-14.3, as mentioned 
above. It is our understanding that the other applicable provisions of 
the West Virginia program will continue to apply to the extent they are 
consistent with promoting bio-oil cropland as an approved postmining 
land use for mountaintop removal mining operations with AOC variances. 
Therefore, we find that the State's proposed bio-oil cropland 
provisions at CSR 38-2-7.8, as described above, are consistent with and 
no less stringent than SMCRA section 515(c) concerning mountaintop 
removal mining operations with AOC variances, and no less effective 
than the Federal regulations governing mountaintop removal mining 
activities at 30 CFR 785.14 and they can be approved. Our approval of 
CSR 38-2-7.8 is based upon the understandings discussed above.
    CSR 38-2-7.3 concerning criteria for approving alternative 
postmining use of land is amended by adding new paragraph 38-2-7.3.d 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 Subsection 38-2-7.8 of 
this rule;

    SMCRA at section 515(c)(2) provides for a variance from the 
requirement to restore land to AOC for mountaintop removal mining 
operations in which an entire coal seam or seams running through the 
upper fraction of a mountain, ridge, or hill (except for areas required 
to be retained in place as a barrier to slides and erosion under 
section 515(c)(4)(A)) will be removed. SMCRA at section 515(c)(3) 
provides that in cases where an industrial, commercial, agricultural, 
residential, or public facility (including recreational facilities) use 
is proposed for the postmining use of the affected land, the regulatory 
authority may grant a permit for a surface mountaintop removal mining 
operation where, at section 515(c)(3)(A), after consultation with the 
appropriate land use planning agencies, if any, the proposed postmining 
land use is deemed to constitute an equal or better economic or public 
use of the affected land, as compared with premining use.
    Proposed Subsection 7.3.d differs from section 515(c)(3)(A) of 
SMCRA and 30 CFR 785.14(c)(1)(i) in one important respect. Unlike its 
Federal counterparts, the State's proposed provision does not 
specifically require consultation with appropriate land use planning 
agencies, if any, on a permit-by-permit basis in order to determine 
whether bio-oil cropland is an equal or better use of the affected 
land, as compared with the premining use. Rather, CSR 38-2-7.3.d 
categorically states that a postmining land use of bio-oil cropland 
does constitute an equal or better use of the affected land, as 
compared with the premining use for purposes of W. Va. Code 22-3-13(c), 
which is the State's counterpart to SMCRA section 515(c) concerning AOC 
variance for mountaintop removal mining operations. Nevertheless, we 
believe that the West Virginia program at Subsection 7.3.d is not 
rendered less stringent than section 515(c)(3)(A) of SMCRA, or less 
effective than 30 CFR 785.14(c)(1)(i), for the following reasons.
    Land use planning is a function of State law and land use planning 
agencies operate solely under a grant of authority under West Virginia 
law (W. Va. Code Chapter 8A, Articles 1 through 12). If the State 
Legislature elects to

[[Page 50847]]

withdraw that grant of authority, it has the right to do so and is thus 
not inconsistent with SMCRA, which only requires consultation with 
``appropriate land use planning agencies, if any.'' In this case, the 
West Virginia Legislature has effectively determined that there are no 
appropriate land use planning agencies with which consultation is 
needed on the question as to whether bio-fuels production is an equal 
or better land use.
    Finally, we note that all the other requirements of the approved 
West Virginia program, including the alternative postmining land use 
approval criteria at CSR 38-2-7.3.a, will have to be met prior to the 
approval of an AOC variance for a mountaintop removal mining operation 
with a postmining land use of bio-oil cropland. Bio-oil cropland is an 
agricultural postmining land use that is one of the five approved 
postmining land uses provided for by W. Va. Code 22-3-13(c) for 
mountaintop removal mining operations with AOC variances; and, W. Va. 
Code 22-3-13(c)(3)(C) requires a determination that the proposed use 
would be compatible with adjacent land uses, and existing State and 
local land use plans and programs. Therefore, based upon the discussion 
above, we find that the proposed provision at CSR 38-2-7.3.d does not 
render the West Virginia program less stringent than SMCRA section 
515(c)(3)(A) nor less effective than the Federal regulations at 30 CFR 
785.14(c)(1)(i) and it can be approved.
    In approving these requirements, we should note that it is our 
understanding that rapeseed and canola are not currently produced in 
West Virginia. Only soybeans are grown in commercial quantities within 
the State. According to the 2005 Agricultural Statistics Bulletin, West 
Virginia produced 828,000 bushels of soybeans in 2004. Mason and 
Jefferson Counties produced about 86 percent of the State's soybeans. 
Other unidentified counties produced 118,000 bushels of soybeans (USDA 
National Agricultural Statistics Service, 2005 West Virginia Bulletin 
No. 36 (Administrative Record Number WV-1465)). Currently, there are no 
coal mining activities in Mason or Jefferson Counties. Furthermore, it 
is believed that no soybeans were produced in counties where 
mountaintop removal mining activities occurred during 2005. The 
proposed rules are intended to encourage production of bio-crops in 
areas within the State where mountaintop removal mining activities 
occur in order to ease our Nation's dependency on foreign sources of 
oil.
    During 2005, 70 percent of the State's surface coal production was 
produced by mountaintop mining operations, which include both steep 
slope and mountaintop removal mining operations. There were 
approximately 70 mountaintop mining operations in West Virginia in 
2005. As mentioned above, mountaintop removal mining activities remove 
an entire coal seam or seams running through the upper fraction of a 
mountain, ridge, or hill. Steep slope mining activities do not remove 
the entire coal seam or seams and occur on slopes that are more than 20 
degrees. It must be noted that the State's steep slope mining 
requirements at CSR 38-2-14.12.a.1, like the Federal requirements at 
SMCRA section 515(e)(2), do not provide for an approved postmining land 
use of agriculture, and therefore, steep slope mining operations cannot 
be approved with a postmining land use of bio-oil cropland. This 
postmining land use will be limited to only mountaintop removal mining 
operations with AOC variances.
    As of April 2006, there were 65 biodiesel production plants in the 
United States (Administrative Record Number WV-1470). The total annual 
production of these plants is 395 million gallons. There are also plans 
to construct 50 new plants and to expand eight existing plants, 
according to the National Biodiesel Board. The anticipated annual 
production capacity for these plants will be 714 million gallons. The 
primary feedstock of most of these plants is soybean oil.
    Currently, there are no production plants in the State that convert 
rapeseed, canola, or soybeans to bio-fuel. The closest plants are in 
Pennsylvania and Virginia. In April 2006, the West Virginia Department 
of Agriculture started a pilot project of selling soy-based bio-diesel. 
The biodiesel is sold at a farmers market in Berkeley County and 
purchased from a plant near Richmond, Virginia. Biodiesel is available 
for $3.89 per gallon, but the price is expected to decline as biodiesel 
supplies increase. This is one of three facilities (farmers markets) 
operated by the West Virginia Department of Agriculture (Administrative 
Record Number WV-1471).
    Biodiesel is used to power farm machinery and school buses within 
the State. At least 13 counties in West Virginia use a biodiesel 
mixture to operate their school buses as reported by The Associated 
Press in The Charleston Gazette on June 9, 2006 (Administrative Record 
Number WV-1466). The State usually pays 85 percent of a county's 
maintenance and operational expenses, but it will pay 95 percent of 
those costs to counties as an incentive for using alternative fuels.

IV. Summary and Disposition of Comments

Public Comments

    We published a Federal Register notice on June 2, 2006, and asked 
for public comments on the proposed State amendment (Administrative 
Record Number WV-1464). The public comment period closed on July 3, 
2006. No comments were received from the public. However, two Federal 
agencies commented on the amendment (see below).

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-1463). We received comments from the 
U.S. Department of Labor, Mine Safety and Health Administration (MSHA) 
on June 27, 2006 (Administrative Record Number WV-1467). MSHA stated 
that its review revealed that none of the proposed changes are relevant 
to miners' health and safety. MSHA stated that it has determined that 
there is no inconsistency or conflicts with MSHA standards.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11) (ii), we are required to obtain 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 proposed 
to make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record Number WV-1463). EPA 
responded by letter dated June 29, 2006 (Administrative Record Number 
WV-1468), and stated that it has reviewed the proposed revisions and 
has not identified any apparent inconsistencies with the Clean Water 
Act, Clean Air Act, or other statutes and regulations under EPA's 
jurisdiction. EPA also provided the following comments on the proposed 
use of bio-oil cropland for postmining land use.

[[Page 50848]]

    EPA urged that bio-oil cropland be approved as a postmining land 
use for a particular mine only after due consideration is given to the 
broader watershed context in which the mine is located. If the mining 
proposal is part of, or should be made part of, a broader watershed 
mitigation or stewardship plan, the EPA stated, such a plan should take 
precedence over bio-oil cropland, particularly if the plan requires 
reforestation. In addition, the EPA stated, the impacts to downstream 
water quality from this kind of agricultural practice should also be 
considered in determining whether to approve bio-cropland for a 
particular mine. Tilling and fertilizing practices for bio-oil crops, 
the EPA stated, should be factored into potential downstream impacts as 
stressors to streams that may be already stressed from the mine in 
question as well as from mines, past and present, in other areas of the 
same watershed.
    We concur with these comments and note that the approved State 
provisions currently require consideration of post-reclamation water 
quality. The State provisions at CSR 38-2-7.3 provide the criteria for 
approving an alternative postmining land use. Subsection 7.3.a.2 
provides that an alternative postmining land use may be approved by the 
WVDEP Secretary if, among other required criteria, the use does not 
present any actual or probable hazard to the public health or safety or 
threat of water diminution or pollution. As discussed above, the 
State's proposed bio-oil cropland provisions at Subsection 7.8 do not 
supersede or negate the existing State provisions at CSR 38-2-7.3.

V. OSM's Decision

    Based on the above findings, we are approving the program amendment 
West Virginia sent us on April 17, 2006 (Administrative Record Number 
1462). To implement this decision, we are amending the Federal 
regulations at 30 CFR part 948, which codify decisions concerning the 
West Virginia program. We find that good cause exists under 5 U.S.C. 
553(d)(3) to make this final rule effective immediately. Section 503(a) 
of SMCRA 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. Making this rule effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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.

[[Page 50849]]

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

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

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 1, 2006.
Brent Wahlquist,
Regional Director, Appalachian Region.

0
For the reasons set out in the preamble, 30 CFR part 948 is amended as 
set forth below:

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. Section 948.15 is amended by adding a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
 Original amendment submission    publication of    Citation/description
             date                   final rule
------------------------------------------------------------------------
 
                              * * * * * * *
April 17, 2006................  August 28, 2006..  W. Va. Code 22-3-
                                                    24(c), (d), (e), and
                                                    (h).
                                                   CSR 38-2-7.2.e.1;
                                                    7.3.d; and 7.8
                                                    (qualified
                                                    approval).
------------------------------------------------------------------------

 [FR Doc. E6-14228 Filed 8-25-06; 8:45 am]
BILLING CODE 4310-05-P