[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Rules and Regulations]
[Pages 1931-1937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-455]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-111-FOR]


West Virginia Abandoned Mine Lands Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We (OSM) are announcing the approval of an amendment to the 
West Virginia Abandoned Mine Lands Reclamation (AMLR) Plan under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
The amendment makes numerous revisions throughout the State's AMLR 
Plan, and it is intended to update and improve the effectiveness of the 
West Virginia AMLR Plan.

DATES: Effective date: January 17, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 
25301, Telephone: (304) 347-7158. E-mail: <a href="/cdn-cgi/l/email-protection#385b505e5778574b554a5d165f574e"><span class="__cf_email__" data-cfemail="ea89828c85aa859987988fc48d859c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
I. Background on the Abandoned Mine Lands Reclamation 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 Abandoned Mine Lands Reclamation Program

    The West Virginia AMLR Program was established by Title IV of SMCRA 
(30 U.S.C. 1201 et seq.) in response to concerns over extensive 
environmental damage caused by past coal mining activities. The program 
is funded by a reclamation fee collected on each ton of coal that is 
produced. The money collected is used to finance the reclamation of 
abandoned coal mines and for other authorized activities. Section 405 
of the Act allows States and Indian Tribes to assume exclusive 
responsibility for reclamation activity within the State or on Indian 
lands if they develop and submit to the Secretary of the Interior for 
approval, a program (often referred to as a plan) for the reclamation 
of abandoned coal mined lands. The West Virginia AMLR Plan was approved 
by OSM effective February 23, 1981. You can find additional information 
about the West Virginia AMLR Plan at 30 CFR 948.20, 948.25, and 948.26.

II. Submission of the Amendment

    By letter dated June 27, 2006 (Administrative Record Number WV-
1469), the West Virginia Department of Environmental Protection 
(WVDEP), Office of Abandoned Mine Lands and Reclamation submitted an 
amendment to its AMLR Plan under SMCRA (30 U.S.C. 1201 et seq.). The 
amendment consists of numerous changes throughout the AMLR Plan, some 
of which concern the AML Enhancement Rule. In its submittal of the 
amendment, the WVDEP stated that the revision incorporates the AML 
Enhancement Rule at 30 CFR Parts 707 and 874, as published by OSM in 
the Federal Register on Friday, February 12, 1999 (64 FR 7470-7483).
    In its submittal letter, the State noted that the amendment also 
contains minor organizational and operational changes. Minor changes, 
such as organizational changes, re-numbering of sections, updating the 
name of departments or agencies, deletion of historical narrative, and 
the correction of typographical and grammatical errors, are non-
substantive changes that do not affect the basis of the original 
approval of the West Virginia AMLR Plan. Therefore, we did not identify 
such non-substantive changes in our published proposed rule notice.
    We announced receipt of the proposed amendment in the September 18, 
2006, Federal Register (71 FR

[[Page 1932]]

54601), and in the same document opened the public comment period and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period closed on October 18, 
2006. We did not hold a hearing or meeting, because no one requested 
one. We received comments from three Federal agencies and one State 
agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment. OSM's 
standard for comparison of State AMLR amendments with SMCRA and the 
Federal regulations is found in Directive STP-1, Appendix 11. This 
policy provides that ``in accordance with 30 CFR 884.14(a), the 
proposed plan must meet all applicable requirements of the Federal 
statute and rules. That is, a State's statutes, rules, policy 
statements, procedures, and similar materials must compare, altogether, 
with applicable requirements of the Federal statute and rules, to 
ensure that the State's plan, as a whole, meets all Federal 
requirements.'' In addition, any amendments to AMLR plans must be 
approved in accordance with the procedures set out in 30 CFR 884.14.

A. Minor Revisions to West Virginia's AMLR Plan Provisions

    West Virginia proposed numerous minor organizational and 
operational changes, re-numbering of sections, updating the name of 
departments or agencies, and the correction of typographical and 
grammatical errors. Because the changes to these previously approved 
plan provisions are minor, we find that they meet the requirements of 
the Federal regulations and the Act and are hereby approved.

B. Revisions to West Virginia's AMLR Plan Provisions That Have the Same 
Meaning as the Corresponding Provisions of the Federal Regulations and 
the Act

    West Virginia proposed revisions to the following plan provisions. 
The State AMLR Plan revisions contain language that is the same as, or 
similar to, the corresponding sections of the Federal regulations and 
are hereby approved.
    B.1. Introduction B; 30 CFR 884.13(d); description of the 
organization.
    B.2. Section I; 30 CFR 884.13(a); designation by the Governor.
    B.3. Section I; 30 CFR 884.13(b); legal opinion by State Attorney 
General.
    B.4. Section III A; 30 CFR 884.13(c)(2); description of procedures 
for identifying projects.
    B.5. Section III B; 30 U.S.C. 1233(a) and 30 CFR 884.13(c)(2); 
factors considered for prioritizing reclamation projects.
    B.6. Section III B item 6(e); 30 CFR 707.5; Abandoned Mine Lands 
Reclamation Enhancement Rule, definitions.
    B.7. Section III item 6(e)(i); 30 CFR 874.17(a); consultation with 
Title V regulatory authority, with the noted exceptions that the Code 
of State Regulations (CSR) 38-2-3.31.a and 3.31.c have not been fully 
approved by OSM.
    B.8. Section III B item 6(e)(i)(I); 30 CFR 707.5; definition of 
government financed construction.
    B.9. Section III B item 6(e)(i)(II); 30 CFR 707.5 and 874.17(a); 
agency procedures for less than 50 percent government funding.
    B.10. Section III B item 6(e)(i)(III); 30 CFR 874.17(b); 
concurrence with Title V regulatory authority.
    B.11. Section III B item 6(e)(i)(IV); 30 CFR 874.17(c); 
documentation.
    B.12. Section III B item 6(e)(i)(V); 30 CFR 874.17(d); special 
requirements.
    B.13. Section III B item 6(e)(i)(VI); 30 CFR 874.17(e); limitation.
    B.14. Section III B item 8; 30 CFR 884.13(c)(2); project tracking 
system.
    B.15. Section IV item 3; 30 CFR 884.13(c)(3); coordination of 
reclamation among abandoned mine lands programs.
    B.16. Section VIII; 30 CFR 884.13(c)(7); public participation and 
involvement.
    B.17. Section IX A; 30 CFR 884.13(d)(1); organization of the 
designated agency.
    B.18. Section IX B; 30 CFR 705 and 884.13(d)(2); personnel staffing 
policies, including restrictions on financial interests by State 
employees.
    B.19. Section IX C; 30 CFR 884.13(d)(3); purchasing and procurement 
systems.
    B.20. Section IX D; 30 CFR 884.13(d)(4); accounting system.

C. Revisions to West Virginia's AMLR Plan Provisions That Are Not the 
Same as the Corresponding Provisions of the Federal Regulations and the 
Act

    C.1. Section II. Purposes of the State Reclamation Program. 
Language is deleted and added to clarify that expenditures from the 
AMLR reclamation fund are selected on the basis of the priorities 
identified at W. Va. Code 22-2-4. The priorities identified at W. Va. 
Code 22-2-4(b)(1)(A) through (F) are substantively identical to the 
priorities identified in SMCRA at section 403(a)(1) through (a)(5) with 
one exception. The priority identified at W. Va. Code 22-2-4(b)(1)(D), 
concerning expenditures for research and demonstration projects 
relating to the development of surface-mining reclamation and water 
quality control program methods and techniques, is not authorized by 
SMCRA as a priority for expenditures from the AMLR fund. This provision 
was formerly codified at section 403(4) of SMCRA, but it was deleted on 
October 24, 1992.
    However, we note that the State has also amended the AMLR Plan at 
Section III. B. concerning the prioritization of problems. Amendments 
to section III B and B(4) also address the AMLR Fund priority 
requirements. The first paragraph at section III B that is being 
amended references the priority requirements at W. Va. Code 22-2-4. 
Section III B is amended by deleting item III B.(4) concerning funding 
priority for research and demonstration projects relating to the 
development of surface mining reclamation and water quality control 
program methods and techniques. Therefore, it appears that expenditures 
for research and demonstration projects will not be considered as 
priority for which AMLR expenditures can be made. Taken as a whole, 
therefore, we understand that the West Virginia AMLR Plan will not 
provide expenditures from the AMLR Fund for research and development 
projects and, therefore, is consistent with the priorities identified 
in SMCRA at section 403(a). We are approving the amendments to sections 
II and III B. and III B. 4 with that understanding.
    C.2. Section III B. Item 6.(e). The existing language is deleted 
concerning waiving any requirement that a reclamation contractor obtain 
a reclamation permit to extract or remove coal if the waiver will 
facilitate removal of coal and the mining is incidental to the project. 
The deleted language was not consistent with section 528 of SMCRA 
concerning surface mining operations not subject to the Act, nor 
consistent with the definition of surface coal mining operations at 30 
CFR 700.5. Section 528 provides that the following activities are not 
subject to the Act: (1) The extraction of coal by a landowner for his/
her own noncommercial use from land owned or leased by him/her; and (2) 
the extraction of coal as an incidental part of Federal, State or local 
government-financed highway or other construction under regulations 
established by the regulatory authority. The definition of surface coal 
mining operations at section 701(28)(A) of SMCRA and 30 CFR 700.5 also 
exclude from the definition of surface coal mining operations 
activities that include the extraction of other minerals, where coal 
does not exceed 16\2/3\ percent of the

[[Page 1933]]

tonnage of minerals removed for purposes of commercial use or sale, or 
coal exploration subject to section 512 of SMCRA. Because the deleted 
language excluded reclamation projects from the definition of ``surface 
coal mining operations'' even though those projects should not have 
been excluded, we are approving the deletion.
    C.3. Section III B Item 6(g). The existing language concerning the 
recovery of coal from refuse piles, impoundments, or abandoned mine 
workings containing coal is deleted. The deleted language allowed coal 
removal incidental to a proposed reclamation project. The Federal 
regulations at 30 CFR part 707 and 30 CFR 874.17 exempt the extraction 
of coal which is incidental only to government-financed construction 
from the requirements of SMCRA and the Federal regulations, if that 
extraction meets specified criteria which ensure that the construction 
is government-financed and that the extraction of coal is incidental to 
it. We find that the deletion removes language that is not consistent 
with applicable requirements of SMCRA and the Federal regulations, and 
it can be approved. We must note that the removal of existing abandoned 
coal refuse piles within the State is also regulated pursuant to CSR 
38-2-3.14.
    C.4. Section VI H, contractor's responsibilities regarding waste 
and borrow areas outside the construction limits. The State deleted 
four items at the end of paragraph H. concerning waste sites on private 
land that are used in conjunction with an abandoned mine land project. 
Contractor responsibilities regarding waste and borrow areas outside of 
construction limits continued to be specified at paragraph H (1) 
through (5). We find that the deletion does not render the West 
Virginia AMLR Plan less effective than 30 CFR 884.13(c) concerning 
policies and procedures for conducting a reclamation program, or 30 CFR 
884.13(c)(6) concerning policies and procedures for rights of entry and 
can be approved.
    C.5. Section IX C. Purchasing and Procurement. The existing 
language concerning the procedures concerning design consultant 
services and construction contracts is deleted and replaced with 
language detailing the procedures to be followed for projects greater 
than $250,000, projects less than $250,000, and definitions. The Plan 
also includes a reference to the State of West Virginia Purchasing 
Handbook: W. Va. Code 5G-1, 59-3-1, and 5A-3, and Legislative Rule 148 
CSR 1.
    The Federal regulations at 43 CFR 12.76 concerning procurement, 
provide, at subsection 12.76(a), that when procuring property and 
services under a grant, a State will follow the same policies and 
procedures it uses for procurements from its non-Federal funds. 
Further, the State shall ensure that every purchase order or other 
contract includes any clauses required by Federal statutes and 
executive orders and their implementing regulations. Subsection 
12.76(b) also provides that grantees and sub-grantees will use their 
own procurement procedures which reflect applicable State and local 
laws and regulations, provided that the procurements conform to 
applicable Federal law and standards identified in this section. 
Furthermore, 30 CFR 886.20 requires the State to follow administrative 
procedures governing accounting, payment, property and related 
requirements contained in 43 CFR Part 12, subpart C. The State 
procedures described above are from the State of West Virginia 
Purchasing Handbook, which, in conjunction with WVDEP's own 
administrative procedures have been determined to comply with Federal 
procurement requirements and 30 CFR Part 886. Therefore, because the 
State's AMLR Plan provisions remain consistent with the Federal 
purchasing and procurement requirements at 30 CFR 884.13(d)(3), we are 
approving these amendments.
    C.6. State Emergency Program
    B. Legal Opinion from State Attorney General Regarding Emergency 
Program Administration. In the second sentence, the citation ``WV Code 
Section 22-3'' is deleted. This citation is deleted because the West 
Virginia AMLR Act provisions are located at W. Va. Code 22-2. 
Accordingly, in the third sentence, the citation ``Chapter 22-3-
4(b)(1)(A)'' is changed to ``Chapter 22-2-4(b)(1)(A).'' In the language 
that follows, a reference to Title ``38'' is deleted and a reference to 
Title ``59'' is added in its place because Title 59-1 is the State's 
AMLR Rule. We find that with these revisions to the West Virginia AMLR 
Plan, the Plan remains consistent with the Federal regulations at 30 
CFR 884.13(b) concerning legal authority under State law to conduct the 
AMLR program. Therefore, we are approving these revisions.
    C.7. C. Policies and Procedures Regarding the Emergency Reclamation 
Program. Existing Item 6, which concerns a public meeting for a 
previous amendment to the AMLR Plan, is being deleted. Because the 
deleted language only concerns a public meeting for a previous 
amendment to the AMLR Plan, that language is no longer necessary. 
Public participation concerning the current amendment and any future 
revisions to the State's AMLR Plan is discussed in Section VIII. We 
find that the public participation provisions of the West Virginia AMLR 
Plan remain consistent with the Federal requirements at 30 CFR 
884.13(c)(7). Therefore, we are approving this deletion.
    C.8. D. Item 2. Administrative and Managerial Structure. The 
following language is being deleted at the beginning of Item 2:

    Six of the positions assigned to the Emergency Group of the 
Abandoned Mine Lands and Reclamation Section consist of technical 
personnel. These positions include 5 inspectors and 2 engineers.

    The deleted language quoted above was inconsistent and unnecessary. 
The inaccuracy stems from the reference to six positions consisting of 
5 inspectors and two engineers. Subsequent paragraphs continue to 
clarify that engineers and inspectors for the Emergency Program are 
located at each field office in the northern and southern part of the 
State. However, the exact number of these positions is not specified to 
provide WVDEP added flexibility to satisfy future program demands. The 
engineers must be mining and/or civil engineers with the technical 
expertise to render plans and specifications for correction of 
abandoned mine problems. The inspectors will monitor all day-to-day 
construction activities on emergency projects. These provisions are 
consistent with the Federal regulations at 30 CFR 884.13(d)(2) 
concerning personnel staffing policies. Therefore, the deletion of the 
quoted language is approved.
    C.9. The last sentence of the existing second paragraph is also 
being deleted. That sentence stated that ``[t]hese are all newly 
created positions.'' This deleted language is unnecessary and no longer 
accurate. Therefore, the deletion of that language can be approved. 
Additionally, the last two sentences in the existing third paragraph 
(the second sentence contains a reference to page 75) are being 
deleted. In their place, a new sentence is added which states that 
``This procedures (sic) is in compliance to [with] the Department of 
Administration, Division of Purchasing.'' As discussed above under 
Finding C.5, the Federal regulations at 43 CFR 12.76 concerning 
procurement provide that when procuring property and services under a 
grant, a State will follow the same policies and procedures it used for 
procurements from its non-Federal funds. Therefore, because we find 
both the deletion and the new language to be consistent with the 
Federal requirements at 30 CFR

[[Page 1934]]

884.13(d)(3) regarding purchasing and procurements systems, they can be 
approved.
    C.10. Item 3. Under paragraph (c) Immediate Follow-up, at (ii), the 
phrase ``[a]n engineer, realty specialist, and other'' is deleted and 
replaced with the term ``[a]ppropriate personnel.'' Also, language is 
being deleted which provides that ``[t]his visit will be coordinated 
with the Federal Office of Surface Mining Reclamation and 
Enforcement.'' As amended, subparagraph (ii) reads as follows:

    (ii) Appropriate personnel will be dispatched to the site as 
soon as possible if a valid emergency situation exists.

    The language concerning the requirement to coordinate the site 
visit with OSM is being deleted because that requirement already exists 
at Item 3(a)(i). Specifically, Item 3(a) provides that the 
investigator's tasks for investigations of potential emergency 
situations are as follows: at (i), ``Coordinate Site visit with Office 
of Surface Mining as needed.'' More importantly, Item 3(c)(i) requires 
the OSM Field Office Director to make the final determination that an 
emergency exists or does not exist. Therefore, we are approving the 
deletion.
    C.11. At paragraph (iv), the words ``color'' and ``slides'' are 
being deleted as a form of documentation of damage by realty personnel 
to show abandoned mine land problems and impacts, including structural 
damage. As revised, ``photos'' are required for such documentation. We 
find that this revision is acceptable, because it acknowledges that 
digital photography has largely replaced slide photography as a means 
of documentation. Therefore, we are approving the deletion.
    C.12. F. Emergency Purchases, Item 6. This item is being deleted. 
The deleted language reads as follows:

    6. In addition to the above stated procedure, at the time of 
this writing an open end or bilateral contract for construction 
services is being assembled which may be utilized for emergency 
services.
    The following page shows the technical evaluation sheet used to 
assist in selecting consultants. The factors may be revised in the 
future to reflect different needs.

    The State has chosen not to implement the open end or bilateral 
contract for construction services and, therefore, the deleted language 
is not needed. We are approving the deletion, because the State's 
regular purchasing and procurement systems for emergency projects are 
consistent with 30 CFR 884.13(d)(3).
C.13. G. Emergency Reclamation Activities
    Language is being deleted that relates to the number of emergency 
projects completed between 1979 and 1986. The deleted information is 
historical information that was useful in making decisions regarding a 
previous amendment to the West Virginia AMLR Plan. The revised AMLR 
Plan continues to provide information concerning the probable number 
and types of emergencies that are likely to occur in the State on an 
annual basis. This information is used in the development of the West 
Virginia Abandoned Mine Land Performance Agreement, which is negotiated 
between OSM and the State approximately every two years and determines 
which State AML activities are evaluated by OSM on an annual basis. 
Therefore, we are approving the deletion of the historical information, 
because it is no longer relevant.
    C.14. Water Supply Amendment; Target areas for AML assistance. Item 
(3). In the second paragraph, the words ``and submitted to the Federal 
Office of Surface Mining for funding approval'' are deleted from the 
end of the first sentence. As revised, the sentence reads as follows: 
``After a pool of eligible projects is determined, potential projects 
are selected.'' However, the State Plan continues to seek OSM approval 
prior to initiating a project. In the last paragraph, the State AMLR 
Plan states that ``WVDEP will request an ``Authorization to Proceed'' 
(ATP) from OSM prior to initiating a project.'' In addition, all 
National Environmental Policy Act (NEPA) compliance documentation is 
required prior to the initiation on any new water supply project. 
Therefore, we are approving the deletion.
C.15. Revision to West Virginia's AMLR Plan Reflecting Amendments to 
Title IV of the SMCRA
    A. Expanded Eligibility Criteria. Item (2). In the second 
paragraph, the citation ``45 FR 14810-14819 March 6, 1980'' is being 
deleted and replaced by the following citation: ``66 FR 31250-31258, 
June 11, 2001.'' The June 11, 2001, Federal Register notice contains 
the revised guidelines for abandoned mine land reclamation programs and 
projects. Therefore, we are approving the citation change.
C.16. B. State Acid Mine Drainage Treatment and Abatement Program
    Language is being amended concerning coordination between the State 
and the Natural Resources Conservation Service (NRCS). The State has 
deleted references to the Rural Abandoned Mine Program and to the U.S. 
Bureau of Mines. As amended, the language is as follows:

    After consultation with the NRCS, the State may reclaim certain 
areas that are severely impacted by acid mine drainage. (This 
coordination will continue the already present cooperative effort 
between the State and the NRCS).

    The Bureau of Mines no longer exists and, therefore, the reference 
to the Bureau of Mines can be deleted. Also, consultation and 
coordination between the State and the NRCS in abating acid mine 
drainage will continue after these revisions are approved. Therefore, 
we are approving the amendments.

IV. Summary and Disposition of Comments

Public Comments

    We published a Federal Register notice on September 18, 2006, and 
asked for public comments on the proposed amendments to the West 
Virginia AMLR Plan (Administrative Record Number WV-1474). The public 
comment period closed on October 18, 2006. No comments were received 
from the public, but one State agency and three Federal agencies 
commented on the proposed revisions.

State Agency Comments

    The West Virginia Division of Culture and History reviewed the West 
Virginia AMLR Plan to determine its effects on cultural resources, and 
submitted comments as required by section 106 of the National Historic 
Preservation Act of 1966, as amended, and its implementing regulations 
at 36 CFR Part 800 (Administrative Record Number WV-1478).
    The Division of Culture and History stated that under Subsection 
III.B, Prioritization of Problems, the document lists the protection of 
historic or cultural resources as a benefit that will be considered in 
reclamation projects. The Division of Culture and History reminded 
WVDEP that this should be an alternative that is regularly considered 
during the planning phases of a project.
    We must note that this portion of the WVAMLR Plan that the Division 
of Culture and History has commented on has not been revised by WVDEP. 
Nevertheless, this part of the Plan does contain some of the planning 
requirements for AML projects. Therefore, as suggested, the WVDEP is 
obligated to regularly consider historic or cultural resources in 
selecting and planning AML projects.

[[Page 1935]]

    The Division of Culture and History commented that under section 
VI, Reclamation of Private Land, subsection H, Contractors 
responsibilities regarding waste and borrow areas outside the 
construction limits, the document states that the contractor must 
observe NEPA regulations when selecting and utilizing offsite borrow 
and/or waste disposal areas. Because NEPA provides for the 
identification and protection of cultural resources, the Division of 
Culture and History asked that borrow and waste areas be submitted for 
their review.
    Again, we must point out that this portion of the AMLR Plan has not 
been revised by WVDEP. However, under the existing State AMLR Plan, 
contractors that use waste and borrow areas outside the construction 
limits must get all required clearances, including the protection of 
cultural resources, prior to creating any offsite disturbances at waste 
or borrow areas. Waste and borrow areas created by AML reclamation 
activities must be conducted in accordance with applicable State and 
Federal reclamation requirements. If possible, waste and borrow areas 
should be located on the reclamation project site. Offsite waste and 
borrow areas should be used only when no onsite area is available, and 
it is necessary to protect public health and safety. In addition, 
adverse impacts to waste and borrow areas should be minimized by 
disturbing the smallest possible area, protecting any historic or 
cultural values that may be present, and reclaiming the site upon 
completion of the AML project.
    In its final comment, the Division of Culture and History stated 
that it was its understanding that exploratory drilling occurs prior to 
its review. The Division of Culture and History went on to say, it has 
been its experience that this can cause damage to cultural resources 
that may be considered eligible for inclusion in the National Register 
of Historic Places. The Division of Culture and History concluded that 
in order to prevent future damages to cultural resources, it request 
the opportunity to review project plans as they relate to exploratory 
drilling locations.
    We agree that unregulated exploratory drilling can cause damage to 
historic and cultural resources. State and Federal reclamation 
requirements prohibit such unauthorized activity. Exploratory drilling 
can only be authorized when it is part of an approved AML project. 
Because all AML projects are subject to review by the Division of 
Culture and History, no exploratory drilling should be conducted as 
part of an approved State AML project that would result in damage to 
historic or cultural resources.

Federal Agency Comments

    Under 30 CFR 884.14(a)(2) and 884.15(a), on September 8, 2006, we 
requested comments on the amendment from various other Federal agencies 
with an actual or potential interest in the West Virginia AMLR Plan 
(Administrative Record Number WV-1473). The U.S. Department of 
Agriculture, Natural Resources Conservation Service (NRCS) responded on 
September 21, 2006, and stated that it had no comments (Administrative 
Record Number WV-1475).
    The U.S. Department of the Interior, National Park Service (NPS) 
responded with comments (Administrative Record Number WV-1477). The NPS 
commented on language in section III B, concerning factors considered 
for reclamation project consideration. Specifically, the NPS stated 
that language at section III B. 3, and throughout this section of the 
revised AMLR Plan, appears to provide the WVDEP with the final decision 
making authority in the reclamation design without consideration of the 
landowner or adjacent land owner, whether public or private. In 
particular, the NPS stated, the various land management agencies may 
have resource protection mandates that do not coincide with reclamation 
decisions made by the WVDEP. Therefore, the NPS suggested, wording 
should be included in the revised AMLR Plan to indicate that where 
adverse impacts are not being mitigated through reclamation, or where 
the proposed reclamation appears to be adverse to a land owner or land 
management agency (State or Federal), a joint approval process should 
be implemented between the WVDEP and the affected owner or agency.
    We must note that section III B. 3 has not been revised by the 
State. However, under SMCRA at section 405(d), West Virginia was 
granted exclusive responsibility and authority to implement the 
provisions of its approved AMLR program. We believe that the West 
Virginia AMLR Plan appropriately addresses the NPS's concern for 
participation in the following ways. The AMLR Plan provides for public 
participation and agency review. In section VIII, the AMLR Plan 
provides that all proposed AML projects will include a NEPA 
environmental assessment. State and Federal agencies will have an 
opportunity to provide input concerning the NEPA document for projects 
which relate to their areas of expertise. In addition to listing the 
names of several agencies who may review the environmental assessments, 
the AMLR Plan provides that other agencies may be asked to comment on 
the environmental assessments. At section III B. 7, the Plan also 
requires the WVDEP to consider the acceptability of post-reclamation 
land uses in terms of compatibility with land uses in the surrounding 
area, consistent with applicable State, regional, and local use plans 
and laws, and the needs and desires of the community in which the 
project is located.
    The NPS commented that section III B. 6(c) provides that if the 
WVDEP determines that the coal or another mineral resource is or may be 
economical to mine, the WVDEP shall decide whether to approve or 
proceed with the proposed reclamation project, or to defer reclamation 
until it can be accomplished during the process of future mining. The 
NPS stated that it is concerned that this process places coal economics 
above reclamation needs. The NPS stated that it believes that the 
ranking of reclamation projects should not include any assumed value of 
in-place coal.
    While section III B. 6(c) has not been revised by the State, we 
disagree that this provision places coal economics above reclamation 
needs. Rather, this provision provides the WVDEP with the flexibility 
to consider, among other factors, whether coal or other mineral 
resource is economical to mine. The provision does not place the 
economic consideration above all others. While it is a factor of 
consideration, it is not the most important factor. For example, 
consideration of the economic value of the coal would not override 
specific benefits of reclamation such as protection of human life, 
health, and safety. In addition, section III.B. 6(d) provides that any 
decision to defer reclamation until future mining occurs may be 
reconsidered by the WVDEP whenever the WVDEP determines that 
reclamation should be accomplished sooner.
    The NPS commented that at section III B. 6(f), the provision 
provides that if the mineral estate under the area to be reclaimed 
contains other seams that are currently uneconomical to mine, 
provisions should be made allowing the coal to be mined in the future. 
The NPS stated that abandoned mine reclamation needs should take 
precedent over providing access to coal that may or may not be economic 
to mine at a future date.
    Section III B. 6(f) was not revised by the State. However, we note 
that this provision does not provide that reclamation must be prevented 
or even

[[Page 1936]]

delayed to provide for coal removal at a later date. Rather, this 
provision essentially directs AMLR Program planners to prepare for that 
eventuality by establishing provisions to allow for any coal, which is 
currently uneconomical to mine, to be mined in the future. If the coal 
is mined in the future, a permit would be required and the site would 
be reclaimed after mining.
    Finally, the NPS stated that the revised AMLR Plan should include a 
provision for notification of affected land owners or land managers of 
the anticipated prioritization and scheduling of reclamation to be 
performed. This could be done, the NPS stated, through private and 
public announcements as is currently practiced with active mining 
permits.
    The AMLR Plan provides public participation and agency review 
provisions at section VIII. That section provides that prior to 
submission of non-emergency construction projects to OSM for the 
issuance of an Authorization to Proceed (ATP), the WVDEP will conduct 
at least one public meeting in Charleston, West Virginia, to describe 
the project submittal's contents. All public meetings will be announced 
via news releases and legal advertisements. Legal ads will be placed in 
newspapers with circulations in the locations of the proposed projects. 
Section VIII also provides that a NEPA environmental assessment 
document will be included for each project. The AMLR Plan provides that 
environmental assessments may be reviewed by the agencies listed in 
section VIII, and other agencies besides those listed may be asked to 
comment on the environmental assessments. We suggest that NPS contact 
the WVDEP to discuss the level of participation that NPS seeks or for 
those specific projects that it may be interested in receiving 
notification about in the future.

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 884.14(a)(2) and 884.15(a), we also requested comments 
on the amendment from EPA (Administrative Record Number WV-1473). EPA 
responded by letter dated September 27, 2006, and stated that it had 
not identified any apparent inconsistencies with the Clean Water Act, 
Clean Air Act, or other statutes and regulations under EPA's 
jurisdiction (Administrative Record Number WV-1476). EPA stated that it 
did not have any other comments.

V. OSM's Decision

    Based on the above findings, we are approving the AMLR Plan 
amendment dated June 16, 2006, as submitted by West Virginia on June 
27, 2006 (Administrative Record Number WV-1469).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR 948.20 and 948.25, which codify decisions concerning the West 
Virginia AMLR Plan amendments. We find that good cause exists under 5 
U.S.C. 553(d)(3) to make this final rule effective immediately. Section 
405(d) of SMCRA requires that the State have a program that is in 
compliance with the procedures, guidelines, and requirements 
established under the Act. Making this regulation 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 or Tribal abandoned mine land reclamation plans and 
plan amendments because each program is drafted and promulgated by a 
specific State or Tribe, not by OSM. Decisions on proposed abandoned 
mine land reclamation plans and plan amendments submitted by a State or 
Tribe are based solely on a determination of whether the submittal 
meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 
30 CFR part 884 of the Federal regulations.

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 abandoned mine land reclamation programs. 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 405(d) of SMCRA requires State abandoned 
mine land reclamation programs to be in compliance with the procedures, 
guidelines, and requirements established under 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 rule does not involve or affect Indian Tribes in any way.

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

    No environmental impact statement is required for this rule because 
agency decisions on proposed State and Tribal abandoned mine land 
reclamation plans and revisions thereof are categorically excluded from 
compliance with the National Environmental Policy Act (42 U.S.C. 4332 
et seq.) by the Manual of the Department of the Interior (516 DM 6, 
appendix 8, paragraph 8.4B(29)).

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

[[Page 1937]]

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 fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose 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 fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 948

    Abandoned mine reclamation programs, Intergovernmental relations, 
Surface mining, Underground mining.

    Dated: December 1, 2006.
H. Vann Weaver,
Acting 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 948.20 is amended by revising the heading and paragraph (b) 
as follows:


Sec.  948.20  Approval of State abandoned mine lands reclamation plan.

* * * * *
    (b) West Virginia Department of Environmental Protection, Office of 
Abandoned Mine Lands and Reclamation, 601 57th Street SE., Charleston, 
West Virginia 25304-2345, Telephone (304) 926-0485.

0
3. Section 948.25 is amended by revising the heading, and adding in the 
table a new entry in chronological order by ``Date of final 
publication'' to read as follows:


Sec.  948.25  Approval of West Virginia abandoned mine lands 
reclamation plan amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
June 27, 2006.................  January 17, 2007.  Amendment includes
                                                    AML enhancement
                                                    requirements and
                                                    other revisions to
                                                    West Virginia's AMLR
                                                    Plan dated June 16,
                                                    2006.
------------------------------------------------------------------------

[FR Doc. E7-455 Filed 1-16-07; 8:45 am]
BILLING CODE 4310-05-P


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