[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Rules and Regulations]
[Pages 42437-42443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20272]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the West Virginia permanent 
regulatory program under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment concerns West Virginia's regulations for 
the design and construction of durable rock fills. The amendment will 
revise the West Virginia program to be consistent with SMCRA and the 
Federal regulations.

EFFECTIVE DATE: August 16, 1995.

FOR FURTHER INFORMATION CONTACT: Mr. James C. Blankenship Jr., 
Director, Charleston Field Office, Office of Mining Reclamation and 
Enforcement, 1027 Virginia Street East, Charleston, West Virginia 
25301, Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the West Virginia Program

    SMCRA was passed in 1977 to address environmental and safety 
problems associated with coal mining. Under SMCRA, OSM works with 
States to ensure that coal mines are operated in a manner that protects 
citizens and the environment during mining, that the land is restored 
to beneficial use following mining, and that the effects of past mining 
at abandoned coal mines are mitigated.
    Many coal-producing States, including West Virginia, have sought 
and obtained approval from the Secretary of the Interior to carry out 
SMCRA's requirements within their borders. In becoming the primary 
enforcers of SMCRA, these ``primacy'' States accept a shared 
responsibility with OSM to achieve the goals of the Act. Such States 
join with OSM in a shared commitment to the protection of citizens--our 
primary customers--from abusive mining practices, to be responsive to 
their concerns, and to allow them full access to information needed to 
evaluate the effects of mining on their health, safety, general 
welfare, and property. This commitment also recognizes the need for 
clear, fair, and consistently applied policies that are not 
unnecessarily burdensome to the coal industry--producers of an 
important source of our Nation's energy.
    Under SMCRA, OSM sets minimum regulatory and reclamation standards. 
Each primacy State ensures that coal mines are operated and reclaimed 
in accordance with the standards in its approved State program. The 
States serve as the front-line authorities for implementation and 
enforcement of SMCRA, while OSM maintains a State performance 
evaluation role and provides funding and technical assistance to States 
to carry out their approved programs. OSM also is responsible for 
taking direct enforcement action in a primacy State, if needed, to 
protect the public in cases of imminent harm or, following appropriate 
notice to the State, when a State acts in an arbitrary and capricious 
manner in not taking needed enforcement actions required under its 
approved regulatory program.
    Currently there are 24 primacy states that administer and enforce 
regulatory programs under SMCRA. These states may amend their programs, 
with OSM approval, at any time so long as they remain no less effective 
than Federal regulatory requirements. In addition, whenever SMCRA or 
implementing Federal regulations are revised, OSM is required to notify 
the States of the changes so that they can revise their programs 
accordingly to remain no less effective than the Federal requirements.
    A major goal of SMCRA is to ensure adequate reclamation of all 
areas disturbed by surface coal mining. 

[[Page 42438]]
During reclamation, the removal of coal is followed by backfilling the 
mine pit with spoil to return the land to its approximate original 
contour. There is usually more spoil than is needed for backfilling 
because solid rock that was removed when the mine pit was excavated 
increases in volume. This excess rock is typically disposed of as fills 
in valleys adjacent to the mine pit. A ``durable rock fill'' is an 
excess spoil fill composed of at least 80 percent by volume of 
sandstone, limestone, or other rocks that do not slake in water. It is 
usually constructed in a single lift or layer and has an underdrain 
system that is created by the natural segregation of rock and soil as 
it is dumped and rolls downslope.
    Background information on the West Virginia program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval can be found in the January 21, 1981, Federal Register (46 
FR 5915). Subsequent actions concerning the conditions of approval and 
program amendments can be found at 30 CFR 948.10, 948.12, 948.13, 
948.15, and 948.16.

II. Submission of the Amendment
    In a series of three letters dated June 28, 1993, and July 30, 1993 
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West 
Virginia Division of Environmental Protection (WVDEP) submitted an 
amendment to its approved permanent regulatory program that included 
numerous revisions to the West Virginia Surface Coal Mining and 
Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations 
(CSR Sec. 38-2-1 et seq.). OSM grouped the proposed revisions that 
concern durable rock fills into one amendment which is the subject of 
this notice. The main provisions of the amendment will:
     Require that certification forms for durable rock fills be 
accompanied by statements attesting to the percentage of non-durable 
material, foundation preparation, prohibited materials and sediment 
control measures.
     Establish criteria for testing spoil material to determine 
if it qualifies as durable rock.
     Require surface water runoff from areas above and adjacent 
to the fill to be diverted into channels designed and constructed to 
ensure stability of the fill, control erosion, and minimize water 
infiltration.
     Require additional sediment control measures if 
construction and operation of the fill results in significant non-
compliance with effluent limits or water quality standards.
     Prohibit certain materials from being placed in durable 
rock fills.
    OSM announced receipt of the proposed amendment in the August 12, 
1993, Federal Register (58 FR 42903) and invited public comment on its 
adequacy. Following this initial comment period, WVDEP revised the 
amendment on September 1, 1994, and May 16, 1995 (Administrative Record 
Nos. WV-937, and WV-979B). OSM reopened the comment period on August 
31, 1994 (59 FR 44593), September 29, 1994 (59 FR 49619), and July 5, 
1995 (60 FR 34934), and held a public hearing in Charleston, West 
Virginia on September 7, 1993, and a public meeting on October 27, 
1994.

III. Director's Findings

A. CSR Sec. 38-2-14.14(b)(4)  Certification of Durable Rock Fills

    West Virginia proposes to add a provision requiring that 
certification forms, submitted to WVDEP by registered professional 
engineers overseeing the construction of durable rock fills, be 
accompanied by: (1) a statement attesting that the fill contains no 
more than 20 percent non-durable material, (2) a statement attesting 
that the foundation is proceeding in accordance with the design plans, 
(3) a statement that the prohibited materials are not being placed, 
deposited, or disposed of into the fill areas, and (4) a statement that 
sediment control measures are constructed and being maintained in 
accordance with the approved design plans and the terms and conditions 
of the permit.
    Under 30 CFR 816/817.73(c), the Federal rules require a qualified 
registered engineer to certify that the design of a durable rock fill 
will ensure the stability of the fill and meet all other applicable 
requirements. Furthermore, 30 CFR 816/817.71(h) requires inspections at 
least quarterly throughout construction and during critical 
construction periods. Following each inspection, the qualified 
registered professional engineer must submit certified reports to the 
regulatory authority attesting that the fill has been constructed and 
maintained in accordance with the approved plan and program 
requirements. The report must include appearances of instability, 
structural weakness, and other hazardous conditions. West Virginia's 
program already contains these requirements. Other than described 
above, the Federal rules do not specify that the certified report 
include specific statements by the engineer. Since West Virginia 
proposes to require a more detailed certification, the Director finds 
that subsection 14.14(b)(4) is consistent with the Federal rules and is 
hereby approved.

B. CSR Sec. 38-2-14.14(g)(1)(B)  Testing of Fill Materials

    State and Federal regulations for durable rock fills require that 
no more than 20 percent of the volume of the fill may be spoil material 
that is not durable rock as determined by tests performed by a 
registered engineer and approved by the regulatory authority. Durable 
rock is material that will not slake in water and will not degrade to 
soil material. West Virginia proposes to add a provision at subsection 
14.14(g)(1)(B) that defines soil material, as used in the definition of 
durable rock, as material of which at least 50 percent is finer than 
0.074 millimeters, which exhibits plasticity, and which meets the 
criteria for group symbol ML, CL, OL, MH, CH, or OH, as determined by 
the Unified Soil Classification System (ASTM D-2487). In support of 
this amendment, the WVDEP submitted to OSM a durable rock testing 
protocol which the State would implement in applying its proposed 
regulations (Administrative Record No. WV-932). Under the protocol, 
rock is first checked for durability by use of standard slake 
durability tests. If a rock slakes in water, it is defined as non-
durable, regardless of whether or not it degrades to soil material. A 
rock which passes the slake durability test may be further tested under 
subsection 14.14(g)(1)(B), on a case-by-case basis, to determine 
whether it would potentially degrade to soil particles exhibiting 
plasticity and particle size below the specified limit.
    The Federal rules do not define soil material in the context of 
durable rock fills or provide a testing protocol to determine if rock 
degrades to soil material. Since West Virginia's protocol adds a 
screening test for durable rock not specifically required under the 
Federal regulations, the Director finds that the proposed rule when 
applied in conjunction with the State's protocol is no less effective 
than 30 CFR 816/817.73(b) and is therefore approved.

C. CSR Sec. 38-2-14.14(g)(8)  Drainage Control

    WVDEP is proposing to revise subsection 14.14(g)(8) to read as 
follows:

    Surface water runoff from areas above and adjacent to the fill 
shall be diverted into properly designed and constructed stabilized 
diversion channels which have been designed, using best current 
technology, to safely pass the peak runoff from a 100-year, 24-hour 
precipitation event. The channel 

[[Page 42439]]
shall be designed and constructed to ensure stability of the fill, 
control erosion, and minimize water infiltration into the fill.

    The Federal rules at 30 CFR 816/817.73(f) prohibit surface water 
runoff from areas adjacent to and above the fill to flow onto the fill 
and require water to be diverted into stabilized diversion channels 
designed to safely pass the runoff from a 100-year, 6-hour 
precipitation event. The Federal rule is more restrictive than the 
proposed rule with regard to the location of surface drainage diversion 
channels relative to the body of the fill. Under 30 CFR 816/817.73(f), 
drainage diversion channels must divert surface runoff from areas 
adjacent to and above the fill away from the fill. Such channels must 
be located either completely off of the fill or at the interface of the 
natural slope and the fill. West Virginia's proposed amendment would 
allow drainage diversion channels to be located anywhere, including on 
the fill itself, provided that the channels are designed and 
constructed to ensure the stability of the fill, control erosion, and 
minimize water infiltration into the fill.
    The Federal requirement to divert runoff water away from durable 
rock fills was adopted on March 13, 1979, as permanent program rule 30 
CFR 816.74(d). While there were no specific comments pertaining to 
diversions of water away from durable rock fills, commenters stated, 
with regard to head-of-hollow fills, that stabilized diversion channels 
``off of the fill'' created an unnecessary disturbance and that 
channels on the fill could protect that portion of the fill from 
erosion. In the preamble, OSM justified the requirement by stating that 
``Diversion of water away from the fill surface is considered sound 
engineering practice'' and cited several engineering references. OSM 
concluded that, while more area will be disturbed where diversions are 
placed off of the fill area, ``less environmental harm will result from 
retaining the requirement to build diversions off the fill 
structures.'' (44 FR 15206).
    The intent of the Federal rule prohibiting runoff diversion onto 
the fill, as explained in the preamble, was to prevent water erosion of 
fill material and infiltration into the fill. West Virginia's proposed 
rule, while not restricting the location of surface drainage diversion 
channels, specifically requires control of erosion and minimization of 
water infiltration, thus preserving the intent of the corresponding 
Federal regulation. The proposed rule prohibits the diversion of water 
into or through the fill because diversions must be designed and 
constructed to minimize water infiltration.
    An OSM ad hoc technical committee on excess spoil disposal 
considered the proposed amendment for technical sufficiency. The 
committee concluded that appropriate surface drainage control for 
durable rock fills can be accomplished under the proposed West Virginia 
amendment. The amendment's proposed language and the other excess spoil 
provisions of the West Virginia regulatory program provide clear 
authority for WVDEP to require permit applications containing 
demonstrations and technical analyses addressing adequate hydraulic 
design--including channel capacity, erosion control, and minimizing 
infiltration into the fill mass. The committee also considered that a 
proper channel design could overcome potential hydraulic problems from 
intersecting flows at channel and terrace junctions, changes in channel 
gradient, or anywhere hydraulic jump and/or overtopping would be likely 
to occur. The committee recommended to WVDEP that a permittee show 
designs and specifications, based upon maximum design velocities, which 
would encompass riprap sizing, gradation, bedding, filters, and all 
channel material placement. The design and specification should also 
address how infiltration will be minimized (e.g., through channel 
liners, etc.) and assure that runoff adjacent to the channel can enter 
the drainage diversion system with a minimum of erosion. The committee 
underscored the importance that runoff not be allowed over the face of 
the fill in locations other than the diversion channel. Finally, the 
committee provided WVDEP a series of recommendations on key areas of 
the durable rock fill drainage control system that should be inspected 
during and after fill construction (Administrative Record No. WV-1008).
    In the absence of any clear congressional intent, OSM evaluated 
this amendment by comparing the advantages and disadvantages of 
locating surface water diversions off of-and-on fills from a public 
safety and environmental standpoint. The perimeter or groin channels 
required under the Federal rules would likely result in a larger 
disturbed area, greater instability of the natural slope adjacent to 
the fill and require more long-term maintenance when compared to 
surface water diversions located on the fill itself. However, surface 
diversions located off the fill are less likely to result in erosion 
and in surface water infiltration to the fill mass than are diversions 
located on the fill.
    Weighing the advantages and shortcomings of both methods of 
diversion construction, the Director concludes that neither method is 
clearly more environmentally preferable than the other. Therefore, the 
Director finds proposed subsection 14.14(g)(8) to be no less effective 
than 30 CFR 816/817.73(f) and he is approving it.

D. CSR Sec. 38-2-14.14(g)(11)  Sediment Control

    WVDEP proposes to add a new provision which states that additional 
storage capacity or sediment control measures may be required through 
permit revision if sediment removal during operation and construction 
of the fill is found to be deficient to the point that significant non-
compliance with applicable effluent limits and water quality standards 
results. In support of this amendment WVDEP stated that the term 
``significant'' refers to the NPDES permit and enforcement thereof and 
that any failure to meet effluent limits constitutes a violation and a 
notice of non-compliance is issued (Administrative Record No. WV-934). 
The proposed subsection has no Federal counterpart. However, it is 
consistent with 30 CFR 816/817.71(a)(1) which requires that excess 
spoil be placed in designated disposal areas in a manner to minimize 
the adverse affects of leachate and surface water runoff from the fill 
on surface and ground waters. The Director is hereby approving 
subsection 14.14(g)(11).

E. CSR Sec. 38-2-14.14(g)(12)  Prohibited Materials

    WVDEP proposes to add a provision which sets forth the materials 
that can not be placed, deposited, or disposed of in a durable rock 
fill or durable rock fill area. These prohibited materials include 
surface soils except for surface soils used to establish vegetation or 
surface soils placed in the fill if accounted for in design and 
construction as nondurable materials and not placed in critical zones. 
Other prohibited materials are mud, silt, or sediment; vegetation or 
organic materials; non-coal wastes; and coal refuse. There is no 
similar listing of materials prohibited from placement in durable rock 
fills in the Federal rules. However, 30 CFR 816/817.73(b) does require 
that at least 80 percent of the material in a fill be non-acid and non-
toxic-forming rock; 30 CFR 816/817.71(e) requires the removal of all 
vegetation and organic materials from the disposal area prior to 
placement of excess spoil; and 30 CFR 816/817.89(b) requires the final 
disposal and noncoal waste in a designated disposal site in the permit 
area or a 

[[Page 42440]]
State approved solid waste disposal area. Furthermore, 30 CFR 816/
817.71(i) provides for the disposal of coal mine waste in excess spoil 
fills if approved by the regulatory authority and certain conditions 
are met. Since West Virginia's proposal does not allow placement in 
durable rock fills of any material that is prohibited by the Federal 
regulations, the Director finds that subsection 14.14(g)(12) is no less 
effective than the Federal rules and he is hereby approving it.
IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for public hearings on the proposed amendment. A public hearing was 
held on September 7, 1993, and a public meeting was held on October 27, 
1994 (Administrative Records Nos. WV-906 and WV-958). Comments on 
durable rock fills were received from GAI Consultants, Inc; Hobet 
Mining; Terra Engineers, Inc.; West Virginia Mining and Reclamation 
Association; West Virginia Coal Association; West Virginia Highlands 
Conservancy; Pine Ridge Coal Corporation; Burko Resources and Eastern 
Association Coal Corporation.
    All comments received pertain to the drainage control provisions in 
CSR Sec. 38-2-14.14(g)(8) as first submitted to OSM on July 30, 1993, 
and revised on September 1, 1994 (Administrative Record Nos. WV-893 and 
WV-937). In the July 30, 1993, submission, WVDEP proposed to delete the 
existing requirement that runoff from areas above and adjacent to 
durable rock fills be prohibited from flowing onto the fill and to add 
new language requiring diversions to be designed and constructed to 
pass runoff ``around and through the fill.'' This language was revised 
on September 1, 1994, to read ``around or through the fill.'' OSM 
objected to the design and construction of durable rock fills where 
surface water runoff would be allowed to be diverted ``through the 
fill''. However, all public comments received were in support of this 
provision. OSM, State and industry representatives met and developed 
new language tentatively acceptable to all parties. This was submitted 
to OSM on May 16, 1995 (Administrative Record No. WV-979B). When OSM 
reopened the public comment period on July 5, 1995, only one comment 
was received on proposed CSR Sec. 38-2-14.14(g)(8) which had been 
revised to allow drainage diversion channels to be located anywhere, 
including on the fill itself, so long as the channels were designed and 
constructed to ensure the stability of the fill, control erosion, and 
minimize water infiltration into the fill. In the following section, 
OSM is responding to all comments received, including those submitted 
in response to WVDEP's July 30, 1993, and September 1, 1994, proposals, 
even though these proposals were subsequently revised on May 16, 1995.
    History of durable rock performance: Commenters reported that 
numerous (up to about 4,000) excess spoil fills (including durable rock 
fills) have been constructed in West Virginia over the past 20 to 25 
years. Many of these are durable rock fills. According to commenters, 
there are no documented massive or structural failures among the fills. 
Commenters reported that problems identified have been minor and not 
unique to subsurface or center drains. The results of a 1994 WVDEP 
survey of fills revealed no substantive difference in structural 
integrity among fills with different runoff diversion systems. One 
commenter's review of recent (1990-94) citizens' complaints and WVDEP 
and OSM inspection reports (July 1993-June 1994) supported the apparent 
lack of failures or significant problems with existing fills and fills 
under construction in the state.
    In response, OSM notes that the similarity of earlier excess spoil 
disposal practices in West Virginia to the present is uncertain. The 
oldest fills in West Virginia are much smaller than many of those 
currently under construction, are primarily of the lift type and are 
influenced by smaller drainage areas. The more recent fills of up to 
100,000,000 cubic yards have yet to stand the test of time, are 
constructed by end-dumping methods, and would typically experience 
significant runoff discharges from larger drainage areas. Moreover, 
durable rock fills may experience a greater runoff/sediment influx due 
to the larger upslope disturbed area found at modern-day mining 
operations. The WVDEP survey, and the review of inspection records and 
citizens' complaints would not necessarily reveal long-term subsurface 
problems. OSM is unaware of any attempts to revisit sites of durable 
rock fills that are beyond bond release. Therefore, the comparisons 
drawn by commenters between earlier head-of-hollow fills and present-
day durable rock fills have limited value.
    Commenters cited evidence for the efficacy and safety of drainage 
systems on fills based on their successful use on abandoned-mine-land 
(AML) sites. A direct comparison of diversions on AML coal refuse 
projects and active excess spoil disposal areas is not possible. AML 
project drainage control design options are very limited since fills 
are in-place and site conditions may not be suitable for diversion in 
natural ground. Excess spoil disposal designs provide greater 
flexibility since the fill location can be selected and the fill 
material has not yet been placed. Surface water diversions on AML 
projects often involve linings of concrete, grouted rip rap, or other 
less pervious material which minimize surface drainage infiltration 
into the fill mass. Rarely do mine operators line channels in a similar 
manner.
    Future stability of durable rock fills: One commenter expressed 
hope that ``* * * future generations will put these fills to good use 
and will maintain surface drainage.'' The objective of the Federal and 
State rules on excess spoil design and construction is to promote 
permanent stability for the long term protection of the environment, 
life, and safety of future generations. The question of permanent 
stability is a fundamental issue affecting OSM's concerns about 
subsurface and center drains. Destabilizing subsurface processes such 
as piping, plugging, and pore-water pressure build-up can take place 
over long periods of time without being expressed on the surface. A key 
aspect underscoring this concern is the absence of any fill maintenance 
following bond release.
    Some commenters contended that problems with fill stability are 
likely to appear during, and are limited to, the period of 
construction. They claimed that, during construction, fill and 
foundation-soil consolidation is incomplete; much of the non-durable 
rock will already have degraded; the outslope is at the angle of repose 
(i.e. not yet graded to a more stable configuration); and, sediment 
production is greater than it will be when revegetation becomes 
established. Problems stemming from inadequate drainage and a rising 
phreatic surface or free-water elevation will also occur soon enough to 
be detected and remediated. One commenter also pointed out that future 
fill failures, if and when they take place, will be limited to slumping 
of fill material into a more stable configuration. The commenter said 
that, under steep-slope and poor foundation conditions, flow slides 
would not occur, since one should not expect liquefaction in drained 
rock-fill material.
    Presently, there is very little use and maintenance of finished 
excess spoil fills. The postmining land use for approximately 95 per 
cent of the fills is forest. Future utilization of land downstream of 
some fills in the form of housing developments, farming, park 

[[Page 42441]]
grounds, industrial facilities, etc. is possible. However, there is no 
reason to assume that those using the land will have the knowledge or 
resources available to address problems that may develop or to perform 
needed maintenance. What maintenance will occur will partly depend on 
what will be observed. Problems with surface drainage systems are 
readily noticeable. This is not true for subsurface drains. Since OSM 
cannot assume that future generations will assume the liability for 
diversion maintenance, conservative performance standards maximizing 
long-term diversion effectiveness are necessary.
    There are no guarantees that most fill problems will occur during 
construction. The benefits of fill/foundation consolidation and 
regrading can be counteracted by increases in the fill-mass weight (by 
addition of fill material or moisture during construction); or addition 
of moisture after bond release. The claim that degradation will be 
limited to the time of durable-rock-fill construction lacks supporting 
data. Forces working within the fill during consolidation, and action 
of water within the fill, can further degrade the fill following 
construction. Sediment entering internal drainage systems may not be 
adequately controlled by the amount of vegetation on the fill or mine-
site surface following bond release. Sites of natural landslides are 
commonly considered to be prone to additional slides. The same can be 
said for initial slumps or slides on a constructed fill. Also, even 
limited or local slumps could result in more than limited consequences, 
depending on the concurrent usage of the site. Finally, whether or not 
massive flow slides will occur will depend on moisture conditions in 
the fill and long-term strength characteristics of the material. It can 
take a long time for steady-state seepage levels to occur. Thus, the 
effects of piping, plugging, and rising pore-water pressure may occur 
well beyond bond release.
    Perimeter drainage channels: Several commenters in support of 
center and subsurface drains for surface runoff control emphasized 
disadvantages associated with perimeter diversion ditches. Some 
commenters cited the effects of geologic degradation (weathering and 
erosion of materials in the channels, filling of the channels from 
landslides or slumps from adjacent steep slopes); seepage of surface 
water into the fill mass through underlying colluvium; and, the 
difficulty in achieving effective positive drainage in very long 
diversion ditches. Some commenters stated that OSM Directive TSR-6 
(Transmittal Number 400, November 10, 1987), which allows perimeter 
ditches to be in contact with the fill mass, enhances differential 
settlement and erosion.
    One commenter noted the annual maintenance requirements of 
perimeter ditches around coal refuse embankments as justification for 
channels on the fill mass. Another compared fills constructed with 
perimeter drains to those using center drains, claiming that the former 
fill type experiences more problems with erosion and water penetration 
into the fill mass.
    OSM concurs that perimeter ditches--and other kinds of drainage 
diversion ditches--can and, in fact, do have maintenance problems. 
However, the problems are commonly the result of inadequate site 
investigation, design, or construction and not necessarily an inherent 
condition of all surface drains. Proper investigation of the proposed 
diversion location, careful planning and design, along with careful 
construction should alleviate many problems commonly encountered in the 
field. As for problems that may not be avoided over the long term 
(geologic degradation), surface drains still have an important 
advantage over subsurface drains since problems can be easily detected 
as they develop. Where a site investigation predicts the establishment 
of an effective surface drainage system to be prohibitively difficult, 
rejection of the site may be the best course of action.
    OSM Directive TSR-6 permits contact between perimeter drainage 
channels and fill material. While there is some potential for 
differential settlement beneath interface channels, OSM does not agree 
that the risk of this happening is greater than for center drains. The 
thickness of fill material below the center channel is much greater, 
and assuming the fill material behaves homogeneously during 
consolidation, this location is more susceptible to differential 
settlement than interface diversion channels. Furthermore, center-
channel failure could result in more erosion of the fill simply because 
there is more fill above natural ground at this location than beneath 
the interface channel. These concerns highlight the importance of 
design and construction methods that ensure long-term channel stability 
and mitigate erosion and water penetration into the fill mass.
    Center drainage channels: Two commenters claimed that significant 
amounts of seepage into the fill mass should not occur from surface 
water flowing in center drains. One commenter claimed to have observed 
standing water in center drains as evidence that infiltration was not 
occurring. Another maintained that, barring barriers to free drainage, 
infiltration will always be less than the drainage capacity in a dumped 
rock fill, especially due to the compaction of near-surface materials 
during construction. The latter commenter further suggested that ``. . 
. infiltration from the ditch could be minimized by means of a 
compacted zone of well-graded rockfill in which the voids are 
completely choked with rock fines.''
    OSM's position, in approval of this amendment, is that center 
drains are conditionally acceptable. It must be pointed out that 
barriers to free drainage in a constructed channel are difficult to 
avoid. Because durable rockfill construction is typified by less-
permeable fine material in the upper reaches of the fill mass, OSM 
agrees that a potentially workable method for minimizing seepage from a 
center channel is the construction of a compacted zone of well-graded 
rockfill.
    Subsurface drainage systems: One commenter cited the results of his 
flow-through model study in support of the State's original proposal 
for surface drainage through fills which was subsequently withdrawn 
from further consideration. The commenter concluded that the laboratory 
bench-scale test proved that a durable rock fill is capable of 
internally passing 24-hour, 100-year storm events. The commenter stated 
that a draw-down of water level occurred in the model as flow 
approached the toe of the simulated fill. The commenter also pointed 
out that flow through rock voids seldom exceeds three feet per second 
but can reach many times this value in surface perimeter ditches. Some 
commenters have argued against the potential occurrence of plugging in 
the subsurface drains by claiming that the end-dumping method produces 
a graded fill that effectively prevents migration of fines. One 
commenter emphasized the general absence of evidence for plugging, 
stating that an autopsy of the simulated durable rock fill found only 
rock dust covering the rock particles and/or a minor accumulation of 
fines in the bottom of the fill. The commenter stated that there was no 
evidence that ``* * * fines tended to migrate through the fill.'' 
Finally, the commenter suggested that fills with internal drains may 
have the potential effect of flood mitigation via runoff attenuation. 
The commenter stated that the model outflow was ``* * * a lot less than 
the peak into it.''
    The commenter also responded to OSM's (September-December 1993) 
reviews of the model study. The reviews 

[[Page 42442]]
concentrated on comparing the model with actual durable rock fills 
constructed in the field. The commenter asserted that the model was 
sufficiently representative of real-life fills with respect to its 
materials, void ratio, particle gradation, and scale. The commenter 
also disputed the OSM contention that durable rock fills have yet to be 
tested by a 24-hour, 100-year storm event. The commenter stated that 
the 1977 flood ``* * * generally recognized as a 100-year event over 
much of Southern West Virginia;'' the 1985 flood over eastern and 
central West Virginia ``* * * considered to be 500+ year event;'' and, 
localized storms ``* * * equal to or greater than the 100 year 24 hour 
storm.''
    Again, OSM's position on routing surface runoff through subsurface 
drains is based on the potential, long-term and not-readily-observed 
effects of piping and plugging. Furthermore, it would appear that the 
rock dust and minor sediment accumulation in the simulated fill could 
not have occurred without migration of fine material. The model may not 
represent actual conditions with respect to fine material. The position 
that the end-dumping method prevents fines migration by producing a 
graded fill is conceptually feasible, but scientifically undocumented.
    The comments pertaining to precipitation events in West Virginia 
are at variance with available data. Construction of the earliest West 
Virginia durable-rock fills commenced around 1980. Hourly data recorded 
at stations throughout West Virginia since 1980 do not show a 100-year, 
24-hour event nor multiples of such events. Also, the suggestion that 
routing surface runoff into subsurface drains may have a mitigating 
effect on floods should create as much concern as it might portend a 
potential advantage. Retained water increases the weight of a fill 
mass, potentially increasing the driving force for sliding, and may 
engender sufficient pore water pressures to reduce the fill's 
resistance to failure.
    Previous studies: Some comments included references to literature 
that the commenter believed supports routing surface runoff through 
subsurface drains. These include: the U.S. Department of Agriculture 
Soil Conservation Service Engineering Handbook; WVDEP Mining and 
Reclamation Handbook; OSM Engineering and Design Manual for Disposal of 
Excess Spoil (1983); recommendations of the Durable Rockfill Committee 
(1983); 1981 National Academy of Science report; Department of Energy 
study by Skelly and Loy on excess-spoil disposal in the watersheds of 
Buffalo Creek, Logan County; several issues of Green Lands Magazine; 
and ``Embankment-Dam Engineering'' by Casagrande in 1973.
    The commenters also reference a 1984 OSM drilling project 
investigating fills placed in greater than four-foot lifts that 
reported high calculated factors of safety (2.2-2.5) for these types of 
fills. Another OSM project mentioned by a commenter is the Crown City 
Mining Company experimental practice of single-lift fills with 
structural faces in Gallia and Lawrence Counties, Ohio. According to 
the commenter, this was reported to be a ``short term success.''
    OSM has evaluated the above references and concluded that they do 
not specifically promote or support the diversion of surface runoff 
into subsurface drainage systems in durable rock fills. The fills that 
were drilled by OSM in 1984 were placed in multiple lifts--a practice 
not comparable to end-dumping methods being considered in this 
rulemaking. The results of the experimental practice in Ohio are not 
applicable because the fills involved placement of durable rock in a 
non-steep-slope area and there was no routing of runoff through the 
fill.
    Design flexibility: Several proponents of routing surface runoff 
into subsurface and center drains have contended that a mine operator 
needs regulatory flexibility in order to design durable-rock-fill 
drainage systems appropriate to site-specific conditions. A commenter 
suggested that the requirement for fills to be designed by a 
professional engineer experienced with earth and rock fills should be a 
sufficient safeguard. Commenters said that detailed requirements, or 
the insistence that a specified ``recipe'' be followed, result in 
unnecessary costs to the mining industry and an impediment to the 
development of design improvements.
    In response, OSM notes that the only restriction at issue concerns 
the use of subsurface drains for surface runoff control in durable-rock 
excess spoil fills. Proposed CSR Sec. 38-2-14.14(g)(8) requires that 
the fill be designed and constructed with diversion channels that 
minimize surface water infiltration into the fill. Therefore, the 
diversion of surface runoff into subsurface drains is prohibited. OSM 
finds that if this condition is met the proposed rule allows adequate 
flexibility for the engineer to design a drainage control system that 
fits site-specific conditions.

Federal Agency Comments

    Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i), 
OSM solicited comments on the proposed amendment from various Federal 
agencies with an actual or potential interest in the West Virginia 
program on four different occasions (Administrative Record Nos. WV-891, 
WV-897, WV-936, and WV-942). Comments were received from the U.S. 
Bureau of Land Management, the Mine Safety and Health Administration, 
the U.S. Bureau of Mines, and the U.S. Army Corps of Engineers. These 
Federal agencies acknowledged receipt of the amendment, but generally 
had no comment or acknowledged that the revisions were satisfactory.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    On July 2 and August 3, 1993 (Administrative Record Nos. WV-892 and 
WV-896), OSM solicited EPA's concurrence with the proposed amendment. 
On October 17, 1994 (Administrative Record No. WV-949), EPA gave its 
written concurrence with a condition based on subsection 5.4(b)(4) of 
West Virginia's regulations. This condition does not pertain to durable 
rock fills which are the subject of this rulemaking.
    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from EPA on four different occasions 
in 1993 and 1994 (Administrative Record Nos. WV-891, WV-897, WV-936, 
and WV-942). No comments were received concerning durable rock fills.

V. Director's Decision

    Based on the above findings, the Director is approving the proposed 
amendment pertaining to durable rock fills as submitted by West 
Virginia on July 30, 1993, and revised on September 1, 1994 and May 16, 
1995.
    The Federal regulations at 30 CFR Part 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA. 

[[Page 42443]]


VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, 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 since each such 
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 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.
National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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 has determined 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 10, 1995.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 948--WEST VIRGINIA

    1. The authority citation for Part 948 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 948.15 is amended by adding paragraph (n) to read:

Sec. 948.15  Approval of regulatory program amendments.

* * * * *

    (n) The sections of the amendment submitted by West Virginia to OSM 
by letter dated July 30, 1993, as revised by submittals dated September 
1, 1994, and May 16, 1995, pertaining to durable rock fills are 
approved effective August 16, 1995.

[FR Doc. 95-20272 Filed 8-15-95; 8:45 am]
BILLING CODE 4310-05-M