[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
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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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