West Virginia Regulatory Program, 27782-27787 [E7-9506]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 95 (Thursday, May 17, 2007)]
[Proposed Rules]
[Pages 27782-27787]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-9506]


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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.

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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 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: https://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,

[[Page 27783]]

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) 
re-submitted 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

[[Page 27784]]

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]''.

[[Page 27785]]

    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

[[Page 27786]]

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 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

[[Page 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