27782 Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Proposed Rules 

that is constructed in accordance with 

one of the listed national consensus 

standards. 

* * * * * 

28. Paragraph (b) of § 1918.104 is 

revised to read as follows: 

§ 1918.104 Foot protection. 

* * * * * 

(b)(1) The employer shall ensure that 

the protective footwear is constructed in 

accordance with good design standards. 

Protective footwear that is constructed 

in accordance with an equipment design 

standard that meets the following 

criteria will be presumed to be 

constructed in accordance with good 

design standards: 

(i) The standard specifies the safety 

requirements for the particular 

equipment; 

(ii) The standard is recognized in the 

United States as providing 

specifications that result in an adequate 

level of safety; and 

(iii) The standard was developed by a 

standards development organization 

under a method providing for input and 

consideration of views of industry 

groups, experts, users, governmental 

authorities, and others having broad 

experience and expertise in issues 

related to the design and construction of 

the particular equipment. 

(2) Non-mandatory appendix A to this 

subpart contains examples of national 

consensus standards that OSHA has 

determined meet the criteria of 

paragraph (b)(1) of this section. 

Protective footwear that is constructed 

in accordance with any of the listed 

national consensus standards will be 

deemed to meet the good design 

requirement of paragraph (b)(1). 

Protective footwear is not required to be 

constructed in accordance with one of 

the listed standards, but the protective 

footwear must be constructed in 

accordance with good design standards. 

To meet this requirement, the protective 

footwear must provide protection 

equivalent to or greater than protective 

footwear of the same type that is 

constructed in accordance with one of 

the listed national consensus standards. 

29. Appendix A to subpart J is added 

to read as follows: 

Appendix A to Subpart J of Part 1918—

Criteria for Personal Protective 

Equipment (Non-Mandatory) 

This appendix lists equipment design 

standards that OSHA has determined are 

‘‘good design standards’’ as that phrase is 

used in sections 1918.101(a)(1), 1918.103(b), 

and 1918.104(b). 

1. Good design standards for protective eye 

and face devices (1918.101(a)(1)) 

ANSI Z87.1–2003, ‘‘American National 

Standard Practice for Occupational and 

Educational Eye and Face Protection’’

ANSI Z87.1–1998, ‘‘American National 

Standard Practice for Occupational and 

Educational Eye and Face Protection’’

ANSI Z87.1–1989, ‘‘American National 

Standard Practice for Occupational and 

Educational Eye and Face Protection’’

2. Good design standards for protective 

helmets (1918.103(b)) 

ANSI Z89.1–2003, ‘‘American National 

Standard for Personnel Protection—

Protective Headwear for Industrial WorkersRequirements’’

ANSI Z89.1–1997, ‘‘American National 

Standard for Personnel Protection—

Protective Headwear for Industrial WorkersRequirements’’

ANSI Z89.1–1986, ‘‘American National 

Standard for Personnel Protection—

Protective Headwear for Industrial WorkersRequirements’’

3. Good design standards for protective 

footwear (1918.104(b)) 

ASTM F–2412–2005, ‘‘Standard Test 

Methods for Foot Protection,’’ and ASTM F–

2413–2005, ‘‘Specification for Performance 

Requirements for Protective Footwear.’’

These two standards together constitute a 

good design standard. 

ANSI Z41–1999, ‘‘American National 

Standard for Personal Protection—Protective 

Footwear’’

ANSI Z41–1991, ‘‘American National 

Standard for Personal Protection—Protective 

Footwear’’

[FR Doc. E7–9315 Filed 5–16–07; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 948 

[WV–112–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. 

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 

is re-submitting a proposed amendment 

to revise the West Virginia Code of State 

Regulations (CSR) concerning the 

hydrologic impacts of surface mining 

operations. The amendments are 

intended to repeal a definition of 

‘‘cumulative impact,’’ and add a 

definition of ‘‘material damage’’ to the 

hydrologic balance outside the permit 

area. OSM had approved an earlier 

submittal of these same amendments on 

December 1, 2003 (68 FR 67035), but 

that approval was vacated and 

remanded by the United States District 

Court for the Southern District of West 

Virginia on September 30, 2005. The 

United States Court of Appeals for the 

Fourth Circuit affirmed the lower 

court’s ruling on December 12, 2006. We 

are expressly seeking comment on 

whether the proposed amendments and 

the supporting arguments and 

explanations presented by the State are 

consistent with the Federal hydrologic 

protection requirements under SMCRA. 

DATES: We will accept written 

comments on this amendment until 4 

p.m. (local time), on June 18, 2007. If 

requested, we will hold a public hearing 

on the amendment on June 11, 2007. We 

will accept requests to speak at a 

hearing until 4:00 p.m. (local time), on 

June 1, 2007. 

ADDRESSES: You may submit comments, 

identified by WV–112–FOR, by any of 

the following methods: 

• E-mail: chfo@osmre.gov. Include 

WV–112–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 

Surface Mining Reclamation and 

Enforcement, 1027 Virginia Street, East, 


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Charleston, West Virginia 25301, 

Telephone: (304) 347–7158. E-mail: 

chfo@osmre.gov. 

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: chfo@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program 

II. Background on the Previous Submittal of 

This Amendment 

III. Description of the Proposed Amendment 

IV. Public Comment Procedures 

V. 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. Background on the Previous 

Submittal of this Amendment 

In 2001, West Virginia House Bill 

2663 was enacted as State law. House 

Bill 2663 deleted the definition of 

cumulative impact at CSR 38–2–2.39 

and added a definition of material 

damage at CSR 38–2–3.22.e, a provision 

that concerns cumulative hydrologic 

impact assessments (CHIA) of surface 

coal mining and reclamation operations. 

By letter dated May 2, 2001, West 

Virginia submitted the proposed 

changes as an amendment to its 

permanent regulatory program 

(Administrative Record Number WV–

1209). OSM approved the deletion of 

the definition of cumulative impact and 

the addition of the definition of material 

damage on December 1, 2003 (68 FR 

67035) (Administrative Record Number 

WV–1379). 

On January 30, 2004, the Ohio River 

Valley Environmental Coalition, Inc., 

Hominy Creek Preservation Association, 

Inc., and Citizens Coal Council filed a 

complaint and petition for judicial 

review in the United States District 

Court for the Southern District of West 

Virginia (Administrative Record 

Number WV–1382). On September 30, 

2005, the United States District Court 

for the Southern District of West 

Virginia vacated OSM’s decision of 

December 1, 2003, and remanded the 

matter to the Secretary for further 

proceedings consistent with the Court’s 

decision (Administrative Record 

Number WV–1439). 

In response to the Court’s decision of 

September 30, 2005, OSM notified the 

State on November 1, 2005, that its 

definition of material damage was not 

approved and could not be 

implemented. OSM also stated that the 

deletion of the definition of cumulative 

impact was not approved and the State 

had to take action to add it back into the 

program. On November 22, 2005, the 

United States District Court for the 

Southern District of West Virginia 

amended its earlier decision 

(Administrative Record Number WV–

1454). In its amended order, the Court 

directed the Secretary to instruct the 

State that it may not implement either 

the new language nor the deletion of 

language from the State’s program, and 

that the State must enforce only the 

State program approved by OSM prior 

to the amendments. By letter dated 

January 5, 2006, OSM notified the State 

that the Court’s amended judgment 

order makes it clear that the definition 

of ‘‘cumulative impact’’ at CSR 38–2–

2.39 remains part of the approved West 

Virginia program and, as such, must be 

implemented by the State, and that the 

definition of ‘‘material damage’’ is not 

approved and can not be implemented. 

On December 12, 2006, the U.S. Court 

of Appeals for the Fourth Circuit 

affirmed the District Court’s ruling of 

September 30, 2005, to vacate and 

remand OSM’s approval of West 

Virginia’s amendments (Administrative 

Record Number WV–1479). The Fourth 

Circuit Court ruled that OSM failed to 

comply with the rulemaking procedures 

set forth in section 553 of the 

Administrative Procedure Act. The 

Court also stated that OSM’s failure to 

properly analyze and explain its 

decision to approve the State’s program 

amendment rendered that action 

arbitrary and capricious. 

III. Description of the Proposed 

Amendment 

By letter dated March 22, 2007 

(Administrative Record Number WV–

1485), the West Virginia Department of 

Environmental Protection (WVDEP) resubmitted an amendment to its program 

under SMCRA (30 U.S.C. 1201 et seq.). 

See Section II above, for the background 

on the previous submittal of this 

amendment. The amendment revises the 

West Virginia Code of State Regulations 

(CSR) concerning the potential 

hydrologic impacts of surface and 

underground mining operations. The 

amendment is intended to repeal a 

definition of ‘‘cumulative impact,’’ and 

add a definition of ‘‘material damage’’ to 

the hydrologic balance outside the 

permit area. 

In its March 22, 2007, re-submittal 

letter, the State provided the following 

information in support of its proposed 

amendment: A description of the 

proposed amendment; a 13-page 

explanation of why it believes the 

amendment is no less stringent than 

SMCRA and no less effective than the 

Federal regulations; a copy of the State’s 

Requirements Governing Water Quality 

Standards at 47 CSR 2; and a copy of the 

United States District Court for the 

Southern District of West Virginia 

decision Ohio River Valley 

Environmental Coalition, Inc. (OVEC), 

et al., v. Callaghan, et al., Civil Action 

No. 3:00–0058, dated March 8, 2001. 

You may receive a copy of this 

information by contacting the person 

listed above under FOR FURTHER

INFORMATION CONTACT. 

It must be noted that WVDEP stated 

in its March 22, 2007, letter that it is 

resubmitting the program amendment 

pursuant to 30 CFR 732.17(h)(9). The 

Federal regulations at 30 CFR 

732.17(h)(8) provide that if the Director 

disapproves an amendment, the State 

regulatory authority will have 30 days 

after publication of the Director’s 

decision to resubmit a revised 

amendment request for consideration by 

the Director. The Federal regulations at 

30 CFR 732.17(h)(9) specify the 

minimum public comment period to be 


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provided and the time period within 

which the Director should approve or 

disapprove an amendment 

resubmission. This program amendment 

does not qualify as a resubmission 

pursuant to 30 CFR 732.17(h)(8) and (9) 

because this amendment has been the 

subject of litigation and the time period 

provided at 30 CFR 732.17(h)(8) for 

resubmission has expired. Therefore, 

OSM will treat the amendment as a new 

request and initiate review procedures 

in accordance with 30 CFR 732.17(h). 

West Virginia Proposes the Following 

Amendments 

1. CSR 38–2–2.39 Definition of 

‘‘cumulative impact’’

This definition is proposed for 

deletion from the West Virginia 

program, and provides as follows: 

Cumulative impact means the hydrologic 

impact that results from the cumulation of 

flows from all coal mining sites to common 

channels or aquifers in a cumulative impact 

area. Individual mines within a given 

cumulative impact area may be in full 

compliance with effluent standards and all 

other regulatory requirements, but as a result 

of the co-mingling of their off-site flows, 

there is a cumulative impact. The Act does 

not prohibit cumulative impacts but does 

emphasize that they be minimized. When the 

magnitude of cumulative impact exceeds 

threshold limits or ranges as predetermined 

by the Division, they constitute material 

damage. 

2. CSR 38–2–3.22.e Cumulative 

Hydrologic Impact Assessment (CHIA) 

This provision is proposed to be 

amended by adding a definition of 

material damage to the existing 

language. The proposed definition of 

material damage provides as follows: 

Material damage to the hydrologic balance 

outside the permit area[s] means any long 

term or permanent change in the hydrologic 

balance caused by surface mining 

operation(s) which has a significant adverse 

impact on the capability of the affected water 

resource(s) to support existing conditions 

and uses. 

As amended, CSR 38–2–3.22.e would 

provide as follows: 

The Director [Secretary] shall perform a 

separate CHIA for the cumulative impact area 

of each permit application. This evaluation 

shall be sufficient to determine whether the 

proposed operation has been designed to 

prevent material damage to the hydrologic 

balance outside the permit area. Material 

damage to the hydrologic balance outside the 

permit area[s] means any long term or 

permanent change in the hydrologic balance 

caused by surface mining operation(s) which 

has a significant adverse impact on the 

capability of the affected water resource(s) to 

support existing conditions and uses. 

In support of the proposed 

amendments described above, the 

WVDEP provided a 13-page explanation 

that we have summarized below. 

Application of the Material Damage 

Definition 

In its submittal, the WVDEP stated 

that the new definition of material 

damage at CSR 38–2–3.22.e focuses on 

the impact of mining operation(s) on the 

ability of a water resource to ‘‘support 

existing conditions and uses’’. The 

principle use of the term ‘‘material 

damage’’ in the hydrologic context in 

SMCRA, is as a test for evaluating the 

potential hydrologic impacts of a permit 

application before the mining operation 

(and any potential enforcement) takes 

place. This new definition effectively 

requires the State to consider the water 

quality standards it has promulgated 

pursuant to section 303(a) of the Federal 

Clean Water Act as part of the material 

damage inquiry under the surface 

mining law. These water quality 

standards are codified in the State 

regulations at CSR 47–2–1 to –9.4. By 

definition at CSR 47–2–2.21, ‘‘water 

quality standards’’ means the 

‘‘combination of water uses to be 

protected and the water quality criteria 

to be maintained by these rules.’’ The 

phrase used in this definition, ‘‘water 

quality criteria’’, is also a defined term 

at CSR 47–2–2.20, and its definition 

reiterates this direct link between 

protection of stream uses and 

application of water quality standards: 

‘‘Water quality criteria’’ shall mean levels 

of parameters or stream conditions that are 

required to be maintained by these 

regulations [state water quality standards]. 

Criteria may be expressed as a constituent 

concentration, levels, or narrative statement, 

representing a quality of water that supports 

a designated use or uses. 

The WVDEP stated that CSR 47–2–6 

establishes various categories of uses for 

the water resources of the State. For 

protection of each of these categories of 

use, Appendix E, Table 1 of the water 

quality standards rules establishes a 

specific set of water quality criteria (see 

CSR 47–2–8.1). These sets of criteria 

include numeric limits for various 

pollutant parameters that are intended 

to protect the category of use to which 

they apply. Most, if not all, of these 

State numeric limits are based on 

scientific studies conducted by or for 

the U.S. Environmental Protection 

Agency for the purpose of providing 

technical guidance to state regulators as 

to the limits that must be placed on the 

concentrations of various pollutants in 

order to provide protection for each 

category of stream use. 

The WVDEP stated that to assure that 

mining will not result in a long term or 

permanent change in the hydrologic 

balance which has a significant adverse 

impact on the capability of a receiving 

stream to support its uses, a proposed 

mining operation must be designed so 

as to consistently comply with the water 

quality standards for these uses. If upon 

review of a permit application and 

assessment of the probable cumulative 

impact of all anticipated mining in the 

cumulative impact area on the 

hydrologic balance, the WVDEP is able 

to determine that the proposed 

operation has been designed so as to 

consistently comply with the water 

quality standards that protect the uses of 

the water into which discharges from 

the operation will flow, the WVDEP will 

make a finding that the proposed 

operation has been designed so as to 

prevent material damage to the 

hydrologic balance outside the permit 

area. 

Consistent with the concept that 

mining operations must be designed to 

prevent material damage, isolated or 

random exceedences of water quality 

standards by a slight margin which do 

not affect the capability of the affected 

water resource to support its uses will 

not be regarded as ‘‘material’’ damage. 

In making the material damage 

finding upon a proposed operation’s 

capability, as designed, to consistently 

comply with water quality standards, 

the WVDEP does not intend to create 

the impression that it will consider 

every pollutant for which a water 

quality standard has been promulgated. 

Water quality standards have been 

promulgated for a wide variety of 

parameters, many of which have no 

potential to be in the effluent from a 

mining operation. Instead, the agency’s 

consideration will be limited to 

standards for those parameters which, 

based on its experience with other 

mining operations in the area and the 

geochemical data which the provisions 

at CSR 38–2–3.23 require to be included 

in the application, have the potential to 

have an impact on water quality if the 

application is granted. 

Comparison of the Material Damage and 

Cumulative Impact Definitions 

The WVDEP stated that for the most 

part, there is very little difference 

between the definition of ‘‘cumulative 

impact’’ that is proposed to be deleted, 

which included a definition of material 

damage, and the material damage 

definition that is proposed to be added. 

The cumulative impact definition at 

CSR 38–2–2.39 provides that material 

damage occurs when ‘‘the magnitude of 

cumulative impact exceeds threshold 

limits or ranges as predetermined by the 

[WVDEP]’’. 


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The agency’s guidance to its permit 

reviewers stated that water quality 

standards should be used as material 

damage limits under this definition. As 

with the material damage definition at 

CSR 38–2–3.22.e that is being proposed, 

isolated or random exceedences of water 

quality standards by a slight margin 

which did not affect the capability of 

the affected water resource to support 

its uses were not regarded as ‘‘material’’

damage under the cumulative impact 

definition. Accordingly, regardless of 

whether a permit reviewer made a 

material damage finding based on 

application of threshold limits or ranges 

under the old cumulative impact 

definition or makes such a finding based 

on whether there will be a significant 

adverse impact on the capability of the 

affected water resource to support its 

uses under the new material damage 

definition, the real focus under both 

definitions is on the question of whether 

water quality standards will be met 

consistently so stream uses are 

protected. 

The WVDEP stated that there are three 

distinctions between the old cumulative 

impact definition and the new material 

damage definition. First, by requiring 

the material damage finding to be made 

upon the capability of the stream to 

support its uses, the new definition 

clearly requires the material damage 

inquiry to be made by reference to the 

State’s water quality standards that have 

been promulgated to protect these uses. 

On its face, the old cumulative impact 

definition only required this finding to 

be based on threshold limits or ranges. 

Outside the agency’s guidance, which 

lacked the binding effect of a regulation, 

there was no requirement that any 

particular set of ‘‘limits or ranges’’ be 

used. Accordingly, individual permit 

reviewers may have believed that they 

had discretion to arbitrarily make up 

their own criteria on a case by case 

basis. Where such criteria varied from 

water quality standards, there was 

potential for conflict with the Clean 

Water Act in violation of 30 U.S.C. 

1292(a)(3) of SMCRA. By requiring the 

finding to be made upon the capability 

of a stream to support its uses, which 

requires this judgment to be based on 

the ability of the operation to comply 

with water quality standards, the 

potential for both arbitrarily established 

limits and conflict with the Clean Water 

Act is eliminated. Therefore, the new 

definition is more objective. 

Second, the WVDEP stated that the 

old definition could be read to mean 

that a single, minor exceedence of 

threshold limits or ranges which did not 

result in any perceptible damage 

constitutes material damage. For 

example, if the iron level in a trout 

stream is measured at 0.52 mg/l at any 

single point in time, which exceeds the 

water quality standard of 0.50 mg/l for 

the iron concentration in trout streams, 

some would argue that the stream has 

been materially damaged, even in the 

absence of any evidence that this single 

exceedence has contributed to 

impairment of any aspect of the trout’s 

life cycle or the supporting ecology. The 

new definition makes it clear that single 

or random, minor exceedences which 

do not affect the capability of a water 

resource to support its uses do not 

constitute ‘‘material’’ damage. By 

equating ‘‘material’’ damage with a 

‘‘significant’’ adverse impact on the 

capability of the affected water resource 

to support its uses, the new definition 

is truer to the plain meaning of 

‘‘material damage’’ as used in the 

statute. 

Third, the WVDEP stated that the old 

definition, which is proposed to be 

deleted, focuses only on whether 

‘‘cumulative impacts’’ exceed the 

threshold limits or ranges, to the 

exclusion of consideration of other 

individual hydrologic impacts of the 

proposed operation. This exclusive 

focus may not be consistent with 30 

CFR sections 780.21(g) and 784.14(f) 

which require the material damage 

finding to be based on a determination 

of ‘‘whether the proposed operation has 

been designed to prevent material 

damage to the hydrologic balance 

outside the permit area’’. Under the new 

definition, this potential shortcoming is 

eliminated. The new material damage 

definition provides for consideration of 

the design of the proposed operation as 

well as cumulative impacts through its 

focus on whether there has been a 

‘‘change in the hydrologic balance 

caused by surface mining operation(s)’’. 

The WVDEP concluded that the 

State’s proposed material damage 

definition is consistent with the plain 

meaning of the term as it is used in 

SMCRA, its use in the context of 

hydrologic protection in SMCRA, the 

meaning it is given in other contexts in 

SMCRA, as well as the overall focus of 

SMCRA. By focusing on the protection 

of stream uses, based on whether a 

proposed mining operation has been 

designed to consistently comply with 

water quality standards that have been 

promulgated to protect such uses, based 

upon scientific study, the material 

damage definition provides a seamless 

interface between the State’s clean water 

regulatory program and regulation of 

impacts from mining on the hydrologic 

balance under the surface mining 

regulatory program. In the opinion of 

the State, these amendments render the 

State program more consistent with 

SMCRA rather than less so. 

IV. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether these 

amendments and the supporting 

arguments and explanations presented 

by the State 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 E-mail or Word file avoiding the use 

of special characters and any form of 

encryption. Please also include Attn: 

SATS NO. WV–112–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 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

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 1, 2007. If you 

are disabled and need special 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 


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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 

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. 

V. 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 Federallyrecognized 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 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 72, No. 95 / Thursday, May 17, 2007 / Proposed Rules 27787 

laws and executive orders for the 

counterpart Federal regulations. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: April 19, 2007. 

Michael K. Robinson, 

Acting Regional Director, Appalachian 

Region. 

[FR Doc. E7–9506 Filed 5–16–07; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2007–0027; FRL–8316–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Electric Generating Unit 

Multi-Pollutant Regulation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a State Implementation Plan (SIP) 

revision submitted by the State of 

Delaware. This revision pertains to 

establishing limits on the emissions of 

nitrogen oxides (NOX) and sulfur 

dioxide (SO2) from Delaware’s large 

electric generation units (EGUs). This 

action is being taken under the Clean 

Air Act (CAA or the Act). 

DATES: Written comments must be 

received on or before June 18, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA–

R03–OAR–2007–0027 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: miller.linda@epa.gov. 

C. Mail: EPA–R03–OAR–2007–0027, 

Linda Miller, Acting Chief, Air Quality 

Planning Branch, Mailcode 3AP21, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2007–

0027. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an (anonymous access( system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Delaware Department of 

Natural Resources & Environmental 

Control, 89 Kings Highway, P.O. Box 

1401, Dover, Delaware 19901. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by e-mail at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

November 16, 2006, the Delaware 

Department of Natural Resources and 

Environmental Control (DNREC) 

submitted a revision to its State 

Implementation Plan (SIP) for 

Regulation No. 1146—Electric 

Generating Unit Multi-Pollutant 

Regulation. 

I. Background 

Regulation No. 1146 establishes NOX, 

SO2 and mercury emissions limits to 

achieve reductions of those pollutants 

from Delaware’s large EGUs of coal-fired 

and residual oil-fired EGUs with a 

nameplate capacity rating of 25 

megawatts (MW) or greater generating 

capacity. Only the NOX and SO2

sections of this regulation will be 

discussed in this rulemaking. The 

mercury sections of this regulation will 

be discussed in a separate rulemaking. 

Regulation No. 1146 will help 

Delaware attain and maintain the 

national ambient air quality standards 

(NAAQS) for ozone and particulate 

matter (PM2.5) and will assist Delaware 

in achieving the emissions reductions 

needed to support Delaware’s 8-hour 

ozone reasonable further progress plan 

(RFP). This multi-pollutant regulation 

will not replace the Federal Clean Air 

Interstate Rule (CAIR) requirements and 

does not relieve affected sources from 

participating in and complying with all 

CAIR cap-and-trade program 

requirements. 

II. Summary of SIP Revision 

Regulation No. 1146 applies to coalfired and residual oil-fired EGUs located 

in Delaware with a nameplate capacity 

rating of 25 MW or greater. The large 

EGUs subject to Regulation No. 1146 are 

Conective Delmarva Generating, Inc.’s 

Edge Moor Generating Station Units 3, 

4 and 5 located in New Castle County; 

the City of Dover’s McKee Run 

Generating Station Unit 3 located in 

Kent County; and NRG Energy, Inc.’s 

Indian River Generating Station Units 1, 

2, 3 and 4 located in Sussex County. 

Regulation No. 1146 also contains 

definitions; emissions limitations for 

NOX and SO2; recordkeeping and 

reporting; compliance plan; and annual 

mass emission limits for NOX and SO2. 

A. Emissions Limitations 

1. NOX

Regulation No. 1146 includes short 

term NOX emission rate limits and will 

be implemented in a phased manner. 

For Phase I, May 1, 2009 through 

December 31, 2011, the short term NOX

emission rate limit is 0.15 lb/MMBTU of 

heat input on a rolling 24-hour average 

basis. For Phase II, January 1, 2012 and 

beyond, the short term NOX emission 

rate limit is 0.125 lb/MMBTU of heat 

input on a rolling 24-hour average basis. 

A unit subject to this regulation shall 

not emit annual NOX mass emissions 

that exceed the values shown in Table 

I on or after January 1, 2009. 


jlentini on PROD1PC65 with PROPOSALS