[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6511-6537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3413]



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DEPARTMENT OF THE INTERIOR
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 with certain exceptions an amendment to the 
West Virginia permanent regulatory program under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The amendment contains 
revisions to the West Virginia Surface Coal Mining and Reclamation Act 
(WVSCMRA) and the West Virginia Surface Mining Reclamation Regulations. 
The amendment is intended to make the West Virginia program consistent 
with SMCRA and the corresponding Federal regulations. Additional 
amendments will be required to bring the West Virginia program into 
full compliance with SMCRA.
    The statutory revisions pertain to reorganization of the State 
regulatory authority, extension of the State Abandoned Mine Lands and 
Reclamation Act, definitions, surface mine reclamation inspector 
qualifications, approval to remove more than 250 tons of coal during 
prospecting, permit transfers, permit fees, premium payments for the 
Workers' Compensation Fund, Small Operator Assistance Program (SOAP), 
hydrologic protection, blasting schedules, preblast surveys, 
termination of underground mining permits, excess spoil fills, 
variances from approximate original contour, citizen complaint 
investigations, issuance of notices of violation, abatement times for 
notices of violation, civil penalty assessments for cessation orders 
that are abated within twenty-four hours, permit suspension or 
revocation, temporary relief, burden of proof, disclosure of ownership 
and control information, reinstatement of right to mine, permit renewal 
requirements, extensions to permitted areas, surface mining activities 
not subject to the Act, National Pollutant Discharge Elimination system 
(NPDES) permitting requirements, removal of 

[[Page 6512]]
coal from existing waste piles, and environmental boards.
    The revisions to State regulations concern applicability, 
definitions, ownership and control information, maps, operation plan, 
excess spoil disposal, new and existing structures, subsidence control 
plan, removal of abandoned coal waste piles, approved person, fish and 
wildlife resources, geologic information, transfer, assignment or sale 
of a permit, permit renewals and revisions, incidental boundary 
revisions, variances exemption for government financed highway or other 
construction, permit issuance, permit conditions, improvidently issued 
permits, haulroads, transportation and support facilities, intermittent 
or perennial streams, design, construction, certification, inspection 
and abandonment of sediment control and other water retention 
structures, permanent impoundments, blasting, fish and wildlife, 
revegetation, insurance, notice of intent to prospect, hydrologic 
balance, steep slope mining, inactive status approval, variance from 
approximate original contour, excess spoil disposal, contemporaneous 
reclamation, control of fugitive dust, utility installations, disposal 
of noncoal waste, backfilling and regrading underground mines, 
subsidence control, small operator assistance program, citizen actions, 
inspection frequencies, notices of violation, show cause orders, civil 
penalty determinations, civil penalty assessment procedures, civil 
penalty assessment rates, coal refuse certification, compaction 
requirements for coal refuse areas, design, construction and 
maintenance requirements for coal refuse impoundments, inspection, 
examination and reporting requirements for coal refuse impoundments, 
training and certification of blasters, and abandoned mine lands 
reclamation.

EFFECTIVE DATE: February 21, 1996. Approval dates of regulatory program 
amendments are listed in Sec. 948.15(p).

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

SUPPLEMENTARY INFORMATION: 

I. Background
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background

    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 with their borders. In becoming the primary 
enforcers of SMCRA, these ``primary'' 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 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 to that they can revise their programs 
accordingly to remain no less effective than the Federal requirements.
    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 approved the proposed revisions on 
durable rock fills on August 16, 1996, (60 FR 42437-42443) and the 
proposed revisions on bonding on October 4, 1995, (60 FR 51900-51918). 
The remaining proposed revisions are the subject of this notice.
    The statutory revisions pertain to reorganization of the State 
regulatory authority, extension of the State Abandoned Mine Lands and 
Reclamation Act, definitions, surface mine reclamation inspector 
qualifications, approval to remove more than 250 tons of coal during 
prospecting, permit transfers, permit fees, premium payments for the 
Workers' Compensation Fund, SOAP, hydrologic protection, blasting 
schedules, preblast surveys, termination of underground mining permits, 
excess spoil fills, variances from approximate original contour, 
citizen complaint investigations, issuance of notices of violation, 
abatement times for notices of violation, civil penalty assessments for 
cessation orders that are abated within twenty-four hours, permit 
suspension or revocation, temporary relief, burden of proof, disclosure 
of ownership and control information, reinstatement of right to mine, 
permit renewal requirements, extensions to permitted areas, surface 
mining activities not subject to the Act, National Pollutant Discharge 
Elimination System (NPDES) permitting requirements, removal of coal 
from existing waste piles, and environmental boards.

[[Page 6513]]

    The revisions to State regulations concern applicability, 
definitions, ownership and control information, maps, operation plan, 
excess spoil disposal, new and existing structures, subsidence control 
plan, removal of abandoned coal waste piles, approved person, fish and 
wildlife resources, geologic information, transfer, assignment or sale 
of a permit, permit revisions and renewals, incidental boundary 
revisions, permit conditions, improvidently issued permits, exemptions 
for government financed highway or other construction variances, permit 
issuance, haulroads, transportation and support facilities, 
intermittent or perennial streams, design, construction, certification, 
inspection and abandonment of sediment control and other water 
retention structures, permanent impoundments, blasting, fish and 
wildlife, revegetation, insurance, notice of intent to prospect, 
hydrologic balance, steep slope mining, inactive status approval, 
variance from approximate original contour, excess spoil disposal, 
contemporaneous reclamation, control of fugitive dust, utility 
installations disposal of coal mine waste, backfilling and regrading 
underground mines, subsidence control, small operator assistance 
program, citizen actions, inspection frequencies, notices of violation, 
show cause orders, civil penalty determinations, civil penalty 
assessment procedures, civil penalty assessment rates, coal refuse 
certification, compaction requirements for coal refuse areas, design, 
construction and maintenance requirements for coal refuse impoundments, 
and inspection, examination and reporting requirements for coal refuse 
impoundments, training and certification of blasters, and abandoned 
mine lands regulation.
    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 August 18, 1994, and September 1, 1994, and May 16, 1995 
(Administrative Record Nos. WV-933, WV-937, and WV-979B). OSM reopened 
the comment period on August 31, 1994 (59 FR 44953), September 29, 1994 
(59 FR 49619), and July 5, 1995 (60 FR 34934), and held public 
meetings/hearings in Charleston, West Virginia on September 7, 1993, 
October 27, 1994, and May 30, 1995.

III. Director's Findings

    Only those revisions of particular interest are discussed below. 
Any revisions not specifically discussed below are found to be no less 
stringent than SMCRA and no less effective than the Federal 
regulations. Revisions not discussed below contain language similar to 
the corresponding Federal regulations, concern nonsubstantive wording 
changes, revise cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment, or concern 
program provisions for which there is no Federal counterpart and which 
do not adversely affect other aspects of the West Virginia program.

A. Proposed Revisions to the West Virginia Code (Including numerous 
revisions to the West Virginia Surface Coal Mining and Reclamation Act 
(WVSCMRA)

1. Sec. 22-1-4 Through 8 Division of Environmental Protection
    The State has reorganized the Division of Environmental Protection 
under the Bureau of the Environment and abolished the Department of 
Commerce, Labor and Environmental Resources under West Virginia House 
Bill (H.B. 4030). Within the Bureau of Environment, Division of 
Environmental Protection, the State established the Office of Abandoned 
Mine Lands and Reclamation, and the Office of Mining and Reclamation. 
The Office of Abandoned Mine Lands and Reclamation is given the 
authority to administer and enforce the State's Abandoned Mine Lands 
and Reclamation Act. The Office of Mining and Reclamation is given the 
authority to administer and enforce the State's Surface Coal Mining and 
Reclamation Act (under Sec. 22-1-7). The director is authorized to 
appoint a Chief of each office who is accountable and responsible for 
the performance of the duties, functions, and services of his or her 
office (Sec. 22-1-8(a)). The provisions also authorize the director of 
the division of environmental protection to employ legal counsel (H.B. 
2523) (Sec. 22-1-6(d)(7)). The Director finds that the State regulatory 
authority continues to have authority under State laws to implement, 
administer, and enforce its State program. He is therefore approving 
the proposed revisions to WVSCMRA Sec. 22-1-4 through 8. The Director 
is also taking this opportunity to remove the required amendment at 30 
CFR 948.16(c)(1), since it refers to the creation of the Division of 
Mines and Minerals, which is now an obsolete designation.
2. Sec. 22-2 Abandoned Mine Lands and Reclamation Act
    West Virginia proposes to revise its statute at section 22-2-2 to 
reflect the extension of the abandoned land reclamation program and the 
collection of fees which support it to September 30, 2004. The Director 
finds that this revision is substantively identical to and therefore no 
less stringent than section 402(b) of SMCRA.
    West Virginia is also amending Sec. 22-2-4 to change the reference 
to Public Law 95-87 to read ``Surface Mining Control and Reclamation 
Act'', to change the reference to subdivision (3) to read subsection 
(c), to change the reference to section 404 of Public Law 95-87 to read 
section 402 of the Surface Mining Control and Reclamation Act, and to 
delete references to ``administrative and personnel expenses'' for the 
purposes of clarification. The Director finds that these revisions are 
consistent with the Abandoned Mine Land Reclamation Act of 1990 and 
satisfy 30 CFR 948.26(a), which is hereby removed.
    The State is revising paragraph (c) by changing the ending date for 
abandoned mine land fund eligibility for surface mining sites where the 
surety became insolvent. The ending date for eligibility was changed 
from October 1, 1991, to November 5, 1990. Paragraph (c) is also 
revised by changing the reference to Public Law 95-87 to the Federal 
Surface Mining and Reclamation Act of 1977, as amended. The Director 
finds that the proposal is substantively identical to and therefore no 
less stringent than section 402(g) of SMCRA.
3. Sec. 22-3-3 Definitions
    a. Operator: The WVDEP proposes to define operator to mean any 
person who is granted or who should obtain a permit to engage in any 
activity covered by the WVSCMRA and any rule promulgated thereunder and 
any person who engages in surface mining or surface mining and 
reclamation operations, or both. The proposed definition states that 
the term operator shall also be construed in a manner consistent with 
the Federal program pursuant to SMCRA, as amended.
    Section 701 of SMCRA defines operator to mean any person, 
partnership, or corporation engaged in coal mining who removes or 
intends to remove more than 250 tons of coal from the earth by coal 
mining within 12 consecutive calendar months in any one location. In 
support of the proposed definition the State submitted a policy 
statement stating that WVDEP would interpret ``operator'' to include 
all 

[[Page 6514]]
persons who engage in surface mining or prospecting activities. This 
policy statement was accompanied by a legal opinion from the General 
Council for WVDEP which stated that the term ``operator'' as defined in 
the WVSCMRA applies to a person who intends to prospect or engage in 
coal exploration (Administrative Record No. WV-932). The Director 
therefore finds that the proposed definition of operator at Sec. 22-3-3 
of the WVSCMRA is no less stringent than the definition at section 701 
of SMCRA and he is approving it.
    b. Surface mine, surface mining or surface mining operations: The 
WVDEP proposes to revise Sec. 22-3-3(u)(1) by inserting a semicolon 
between ``reclamation'' and ``in-situ'' and a comma between 
``cleaning'' and ``concentrating''. Also, at subsection 3(u)(2), the 
exemption for permanent facilities not within the area being mined and 
not directly involved in the excavation, storage, or processing of coal 
has been removed from the definition. The Director finds that the 
revisions to the definition of ``surface mining operation'', which 
remove the exemption for certain permanent facilities and correct 
errors in punctuation, satisfy the requirements of 30 CFR 948.16(c)(2) 
and resolve the concerns which caused the Secretary not to approve the 
definition at 30 CFR 948.12(c) and 30 CFR 948.13(a). Accordingly, he is 
approving the proposed definition and removing the disapproval, set 
aside, and required amendment provisions at 30 CFR 948.12(c), 
948.13(a), and 948.16(c)(2).
4. Sec. 22-3-5 Surface Mining Inspectors and Supervisors
    West Virginia proposes to change the probationary status for 
surface mining supervisors and inspectors from one year to six months. 
The Director has determined that this revision, for which there is no 
direct Federal counterpart, is within the administrative discretion of 
the regulatory authority, and is not inconsistent with the requirements 
of SMCRA or the Federal regulations.
5. Sec. 22-3-7 Notice of Intent To Prospect
    The State proposes to revise paragraph (f) to allow for the 
promulgation of regulations, the development of application forms and 
to require an application fee of $2,000 for prospecting operations 
intending to remove more than 250 tons of coal. While there is no 
direct Federal counterpart, the Director finds that proposed revisions 
are consistent with the Federal requirements for coal exploration 
permits at section 512 of SMCRA and are hereby approved.
6. Sec. 22-3-8 Surface Mining Reclamation Permit
    The State has deleted subsections 8(a) and 8(b), and renumbered the 
remaining subsections. The deleted subsections required coal mining 
operations in existence at the time of the Secretary's approval (1981) 
of the West Virginia program to obtain permits under the newly approved 
program. The Director finds that the deletion of these out-of-date 
provisions does not render the West Virginia program inconsistent with 
SMCRA or the Federal regulations.
    The State proposes to revise paragraph (1) of this section to allow 
for the continued operation of a mine by the transferee pending 
approval of the transfer application, and subject to the ownership and 
control provisions at section 22-3-18(c). The Federal counterpart to 
this provision at Sec. 506(b) of SMCRA does not refer specifically to 
permit transfers. However, it does allow a successor in interest to 
continue coal mining operations on the current permit while awaiting 
approval of the regulatory of its application for a new permit. The 
Director believes that allowing permit transfer applicants to mine 
while they await a decision on their application for transfer of permit 
is not inconsistent with the principles underlying Sec. 506(b) of 
SMCRA, so long as the applicant is eligible for a permit Sec. 22-3-
18(c) (West Virginia's ownership and control provisions), and provides 
adequate bond. Furthermore, the opportunity for public comment will 
remain a meaningful one, since the regulatory authority may still 
ultimately deny the application for the transfer based on information 
obtained during the public comment period. Therefore, the Director is 
approving the provision. West Virginia proposes to increase the surface 
mining permit fee from $500 to $1,000 at paragraph (4). Also, as 
provided in paragraph (h), the State proposes to make compliance with 
the Workers' Compensation Program a requirement of permit approval. 
There are no direct Federal counterparts. The Director finds that these 
provisions are not inconsistent with the requirements of SMCRA or the 
Federal regulations.
7. Sec. 22-3-9 Permit Application Requirements
    West Virginia proposes to revise the eligibility requirements for 
its Small Operator Assistance Program (SOAP) at paragraph (b). The 
State is increasing the total annual production rate for SOAP 
eligibility from 100,000 to 300,000 tons of coal. In addition, the 
State has added language that identifies the services that are 
reimbursable under SOAP. These new services include engineering 
analyses and designs needed in the determination of probable hydrologic 
consequences, cross-section maps and plans, geologic drilling and 
statements of results of test borings and core samplings, preblast 
surveys, fish and wildlife protection and enhancement plans, and the 
collection of archaeological and historical information. The Director 
finds that WVSCMRA Sec. 22A-3-9(b), as revised, is substantively 
identical to and, therefore, no less stringent than the corresponding 
SOAP provisions of section 507(c) of SMCRA.
    At subsection 9(g), the State has added the word 
``administratively'' in two locations to clarify that the provision 
pertains to administratively complete applications. The term 
``administratively complete application'' is defined at CSR 38-2-2.9. 
The Director finds these changes to be consistent with section 510 of 
SMCRA, and no less effective than the use of the term 
``administratively complete application'' at 30 CFR 773.13 concerning 
public participation in permit processing and the definition of the 
term ``administratively complete'' at 30 CFR 701.5.
8. Sec. 22-3-9a Permit To Mine Two Acres or Less
    The State has deleted (S.B. 579; June 7, 1991) this section which 
contains special provisions governing surface mining operations of two 
acres or smaller in size. Section 528(2) of SMCRA, which set forth the 
corresponding Federal provisions, was repealed pursuant to Section 201 
of Public Law 100-34. Therefore, the Director finds that the proposed 
deletion will not render West Virginia's program less stringent than 
SMCRA. In addition, the Director finds that the deletion of WVSCMRA 
Sec. 22A-3-9a eliminates the need for further action regarding the 
required amendments set forth at 948.16(c)(3), (4), (5) and (6), and 
the disapproval and set-aside set forth at 30 CFR 948.12(d) and 
948.13(b), respectively, and he is, therefore, removing them.
9. Sec. 22-3-13 Performance Standards
    The State proposes to amend subparagraph (b)(10) to require that 
operators avoid acid or toxic-mine drainage by preventing or removing 
water from contact with toxic producing deposits, treating drainage, 
and casing, sealing or managing boreholes, shafts and wells to keep 
acid drainage from entering ground and surface waters. The Director 
finds that this proposal is substantively identical to and, therefore, 

[[Page 6515]]
no less stringent than, the corresponding Federal statute at section 
515(b)(10)(A) of SMCRA.
    West Virginia proposes to revise subparagraph (b)(15) to require 
the mailing of the proposed blasting schedule to every resident within 
one-half mile of the blasting site, and to provide any resident or 
owner of a dwelling within one-half mile of any portion of the permit 
area the right to a preblast survey. The Director finds that this 
proposal is substantively identical to and, therefore, no less 
stringent than, the corresponding Federal statute at section 515(b)(15) 
of SMCRA.
    In addition, the State proposes to revise subparagraph (b)(16)(C) 
to provide that underground mining permits shall terminate if 
operations have not commenced within three years of the date of permit 
issuance. The Director finds that this proposal is substantively 
identical to and, therefore, no less stringent than section 506(c) of 
SMCRA.
    The State also proposes to revise subparagraph (b)(22) to require 
that rock to be used in durable rock fills not slake in water and not 
degrade to soil material. The Director finds that this proposal is 
substantively identical to and, therefore, no less effective than the 
corresponding Federal provision set forth at 30 CFR 816.73(b).
    Finally, West Virginia proposes to revise paragraph (e) to allow 
the Director to promulgate rules that permit variances from approximate 
original contour. The Director finds that this proposal is consistent 
with that portion of section 515(e) of SMCRA which permits states with 
approved programs to allow variances from the requirements to return a 
steep slope area to its approximate original contour (AOC). Therefore, 
this revision is approved, but only to the extent that it applies to 
steep slope areas as defined at WVSCMRA Sec. 22-3-13(d). In addition, 
the Director is requiring that West Virginia amend its program to limit 
such variances to industrial, commercial, residential, or public 
alternative postmining land use, in accordance with section 515(e)(2).
10. Sec. 22-3-15  Inspections
    West Virginia proposes to revise paragraph (b)(1)(C) to require 
that monitoring equipment be installed, maintained and used consistent 
with WVSCMRA Sec. 22-3-9 rather than WVSCMRA Sec. 22-3-10 as currently 
stated. The Director has determined that this correction of a cross-
reference will not render the West Virginia program inconsistent with 
the requirements of SMCRA or the Federal regulations.
    The State also proposes to delete the provision in paragraph (g) 
which provides that permittees, employees and inspectors are not to be 
held civilly liable for any injury sustained by a person accompanying 
an inspector on an inspection. The Director finds that this deletion, 
which resolves the concerns raised by OSM as set forth at 30 CFR 
948.12(a) and 948.13(e), will not render the West Virginia program 
inconsistent with the requirements of SMCRA or the Federal regulations. 
The Director is, therefore, removing the disapproval at 30 CFR 
948.12(a), and the corresponding set aside at 30 CFR 948.13(e).
    Finally, the State is deleting from paragraph (g) the provision 
that any person accompanying an inspector on an inspection shall be 
responsible for supplying any safety equipment required. There is no 
counterpart to this rule in the Federal program, and the Director finds 
that the deletion of this provision will not render the West Virginia 
program inconsistent with the requirements of SMCRA or the Federal 
regulations.
11. Sec. 22-3-17  Notice of Violation
    West Virginia proposes to revise paragraph (a) of this section to 
make it mandatory to issue a notice of violation whenever any provision 
of WVSCMRA, the regulations promulgated pursuant thereto or a permit 
condition has not been complied with. In addition, the time set for 
initial abatement of a notice of violation is proposed to be changed 
from 15 to 30 days, and the maximum time allowed as a reasonable 
extension is changed from 75 to 60 days. The Director finds that these 
revisions are no less stringent than and are procedurally similar to 
section 521(a)(3) of SMCRA.
    In paragraph (a), the State also proposes to delete the provision 
that exempts cessation orders that are released or expire within 24 
hours after issuance from mandatory civil penalty assessment of seven 
hundred fifty dollars per day per violation. While there is no direct 
Federal counterpart, the Director finds that the deletion of this 
provision will not render the State's program inconsistent with the 
requirements of SMCRA or the Federal regulations.
    The State proposes to revise paragraph (b) to allow the director to 
suspend or revoke a permit upon the operator's failure to show cause 
why the permit should not be suspended or revoked. In addition, if the 
permit is revoked, the proposal states that the commissioner shall 
initiate procedures to forfeit the operator's bond in accordance with 
rules promulgated by the Director. The Director finds that the 
proposals are consistent with the requirements of SMCRA at section 
521(a)(4) and the Federal regulations at 30 CFR 843.13.
    In addition, West Virginia proposes to recodify paragraph (d)(3) as 
new subsection (e) in order to clarify that appeal rights and 
procedures apply to all notices, orders and decisions of the 
commissioner, not just those relating to civil penalty assessments; and 
to recodify paragraph (d)(4) as new subsection (f) to clarify that 
temporary relief provisions apply to all enforcement actions and 
orders, but not to civil penalty assessments. The Director finds that 
the proposed recodification will not render the State's program 
inconsistent with the requirements of SMCRA or the Federal regulations, 
and satisfies the requirements of 30 CFR 948.16(c) (8) and (9), which 
are hereby removed.
    West Virginia proposes to revise newly redesignated section (f) to 
provide that the filing of a request for an informal conference or 
formal hearing will not stay the execution of the order appealed from. 
The Director has determined that this proposal is substantively 
identical to and, therefore, no less stringent than the corresponding 
Federal provision at section 525(a) of SMCRA. Finally, the State 
proposes to revise section (f) to provide that where a request for 
temporary relief from an order for cessation of operations is filed, 
the commissioner shall issue his decision within 5 days of receipt of 
the request. The Director finds that this proposal is substantively 
identical to and, therefore, no less stringent than the corresponding 
Federal provision at section 525(c) of SMCRA.
12. Sec. 22-3-18  Permit Approval
    The State proposes to revise paragraph (a) of this section to 
require the submission of a complete permit application before a 
decision is rendered, and to provide that the applicant has the burden 
of establishing that the application is in compliance with the program 
requirements. The Director finds that the proposed revisions are 
substantively identical to and, therefore, no less stringent than the 
corresponding Federal statute at section 510(a) of SMCRA.
    The State has amended paragraph (c) to require that permit 
applications contain violation information on any surface mining 
operation owned or controlled by the applicant, rather than just those 
operations located in the state of West Virginia. The Director has 
determined that this revision is substantively identical to and, 
therefore, 

[[Page 6516]]
no less stringent than the Federal law at section 510(c) of SMCRA.
    In addition, section (c) has been revised to add that no permit may 
be issued upon a finding of a demonstrated pattern of willful 
violations of (in addition to West Virginia statute) other State or 
Federal programs implementing SMCRA of such a degree as to indicate an 
intent not to comply with the State statute or SMCRA. The Director 
finds these changes to be substantively identical to and no less 
stringent than section 510(c) of SMCRA and satisfies the concerns 
raised in 30 CFR 948.12(g) and 948.13(f) which are hereby removed.
    Finally, West Virginia is proposing to revise, in section (c), the 
conditions under which a permit may be issued after revocation or 
forfeiture, to include situations where the violations which resulted 
in the revocation or forfeiture have not caused irreparable damage to 
the environment. While there is no direct Federal counterpart, the 
Director finds that the proposal is not inconsistent with the permit 
approval provisions of section 510 of SMCRA.
13. Sec. 22-3-19  Permit Renewal and Revision Requirements
    The State proposes to revise paragraph (a)(2) of this section by 
deleting the references to incidental boundary revisions, and adding a 
requirement that where a renewal application proposes to extend the 
operation beyond the original boundaries, the portion of the renewal 
application involving the new area is subject to the full permit 
application requirements. The State clarified the intent of the 
amendment by stating that the term ``full standards'' as used in 
WVSCMRA Sec. 22-3-19(a)(2) means that for the area being added to the 
permit, the applicant must satisfy all current permitting requirements 
and is subject to all inspection and enforcement provisions and all 
performance standards. In other words, it would be treated like a new 
permit application (Administrative Record No. WV-932). Given this 
clarification, the Director finds the revisions to be substantively 
identical to and, therefore, no less stringent than section 506(d)(2) 
of SMCRA.
    In addition paragraph (a)(4) is amended to add a two thousand 
dollar filing fee for any permit renewal for an active permit. The 
Director finds that this proposal is not inconsistent with the permit 
fee provisions in section 507(a) of SMCRA.
    Finally, West Virginia proposes to revise section (b)(3) to provide 
that where the permittee desires to add new area to a permit, the 
original permit may be amended to include the new area, provided the 
application for the new area is subject to all the procedures and 
requirements applicable to applications for original permits. The 
Director finds that the revision is substantively identical to and, 
therefore, no less stringent than section 506(d)(2) of SMCRA.
14. Sec. 22-3-22  Designation of Areas Unsuitable for Mining
    West Virginia proposes to revise paragraph (b) of this section by 
deleting the word commissioner. As revised, the provision gives any 
person having an interest which is or may be adversely affected the 
right to petition the Director to have the area designated as 
unsuitable for mining or to have such designation terminated. The 
Director finds the proposal to be substantively identical to and, 
therefore, no less stringent than section 522(c) of SMCRA.
15. Sec. 22-3-26  Surface Mining Operations Not Subject to the Act
    The State proposes to delete paragraph (b) of this section which 
provided an exemption for the extraction of coal by a landowner engaged 
in construction. There is no direct Federal counterpart to this 
exemption and the Director finds that the proposed deletion will not 
render the West Virginia program inconsistent with the requirements of 
SMCRA or the Federal regulations.
    The exemption for government financed construction at paragraph (c) 
is being revised to provide that coal extraction incidental to federal, 
state, county, municipal, or other local government financed highway or 
other construction is exempt from the requirements of the Act. The 
Director finds that this provision is substantively identical to and, 
therefore, no less stringent than section 528(2) of SMCRA.
    The State also proposes to delete paragraph (d) which provided an 
exemption for the extraction of coal affecting two acres or less. The 
Director finds this proposal to be consistent with the provisions of 
subsection 201(b) of Public Law 100-34 (effective June 6, 1987) which 
repealed the two-acre exemption originally set forth at section 528(2) 
of SMCRA and, therefore, the deletion of this provision will not render 
the State's rules inconsistent with the requirements of SMCRA or the 
Federal regulations. The Director is removing required amendment 30 CFR 
948.16(c)(7) because with the deletion it is no longer relevant.
16. Sec. 22-3-28  Special Permits for Abandoned Coal Waste Piles
    West Virginia proposes to revise paragraph (d) of this section by 
deleting the word ``reprocessing'' and adding the word ``removal'' in 
order to clarify that the special permit is solely for removal of 
existing abandoned coal waste piles. The Director finds that this 
revision will not render the State program inconsistent with the 
requirements of SMCRA or the Federal regulations. The Director notes 
that the implementing rules are located at CSR 38-2-3.14(d) (see 
Finding B-9 below).
17. Sec. 22-3-40  National Pollutant Discharge Elimination System 
(NPDES)
    The State proposes to revise this section to require a filing fee 
for an NPDES permit application of $500 and a filing fee for a renewal 
application of $100. The Director finds that this proposal is not 
inconsistent with the general permit fee provisions of section 507(a) 
of SMCRA.
18. Sec. 22B-1-4 through 12 Environmental Boards; General Policy and 
Purpose
    The State is adding these provisions to the West Virginia program 
to establish the requirements under which environmental boards will 
operate. The Director finds that the provisions are not inconsistent 
with SMCRA section 503 concerning state programs. The Director notes 
that West Virginia's administrative hearings and appeals procedures are 
the same or similar to those in sections 514 and 525 of SMCRA. The 
Director is not approving language at section 22B-1-7(d) concerning 
allowing temporary relief where the appellant demonstrates that the 
executed decision appealed from will result in the appellant suffering 
an ``unjust hardship.'' because the exception is inconsistent with 
SMCRA sections 514(d) and 525(c). In addition, the Director is 
requiring that West Virginia further amend Sec. 22B-1-7(d) to be 
consistent with SMCRA sections 514(d) and 525(c).
    Section 7(h) would allow the Surface Mining Board to consider 
economic feasibility of treating or controlling discharges from surface 
coal mining operations in appeals from decisions of an order, permit, 
or official action. In this respect, the provisions are less stringent 
than SMCRA section 515(b)(10) and less effective than the Federal 
regulations at 30 CFR 816.42, because both require discharges to be 
controlled or treated without regard to economic feasibility. 
Therefore, the Director is not approving this language 

[[Page 6517]]
to the extent that it would allow the Board to decline to order an 
operator to treat or control discharges due to economic considerations. 
In addition, the Director is requiring that West Virginia further amend 
Sec. 22B-1-7(h) to be no less stringent than SMCRA section 515(b)(10) 
and no less effective than the Federal regulations at 30 CFR 816.42, by 
requiring discharges to be controlled or treated without regard to 
economic feasibility.
19. Sec. 22B-3-4  Environmental Quality Board
    This new provision establishes the Environmental Quality Board's 
rule-making authority. Under WV S.B. 287, the provision authorizes the 
promulgation of procedural rules granting site specific variances for 
water quality standards for coal remining operations; providing minimum 
requirements for procedures for granting variances; prohibits granting 
variances without requirement of best available technology and best 
professional judgement; prohibits granting variance without 
demonstration of potential for improvement; and prohibits granting 
variance if degradation will result. The Director finds the provision 
is not inconsistent with SMCRA section 503 which provides that State 
programs must have the capacity to establish rules and regulations to 
carry out the purposes of SMCRA. The provision is also not inconsistent 
with section 301(p) of the Federal Water Pollution Control Act (33 
U.S.C. 1311) which allows alternate effluent limitations to be 
established for coal remining operations. The Director notes that any 
such procedural rules that grant variances must be submitted to OSM for 
approval prior to their implementation.
20. Sec. 22B-4  Surface Mine Board
    The State has renamed the ``Reclamation Board of Review'' the 
``Surface Mine Board'' and has established new requirements under which 
it operates. However, the amendment still requires that some board 
members represent outside interests. Therefore, the Director finds that 
these revisions do not materially affect the basis for OSM original 
determination of the Board's multiple interest status. Since the Board 
continues to represent multiple interests, its members are not 
``employees'' within the meaning of section 517(g) of SMCRA and the 
Federal regulations at 30 CFR 705.5. Therefore, the Director finds the 
provisions of section 22B-4 to be not inconsistent with SMCRA section 
503 concerning State programs, section 514 concerning decisions of 
regulatory authority and appeals, and 517(g) concerning financial 
interests of employees.

B. Proposed Revisions to the West Virginia Surface Mining Reclamation 
Regulations

1. CSR Sec. 38-2-1.2  Applicability
    West Virginia proposes to delete former paragraph (b) of this 
subsection. The Director finds that the deletion satisfies the 
disapproval codified at 30 CFR 948.12(h). 30 CFR 948.12(h) is hereby 
removed.
    West Virginia proposes to revise paragraphs (c) and (d) by 
providing for the termination and reassertion of jurisdiction over a 
completed surface mining and reclamation operation. The Director finds 
that the amendments to paragraphs (c)(2) and (d) are substantively 
identical to and no less effective than the Federal regulations at 30 
CFR 700.11(d)(1)(ii) and (2), respectively, concerning termination of 
jurisdiction. Subsection (c)(1) is less effective than the Federal 
counterpart at 700.11(d)(1)(i) to the extent that subsection (c)(1) 
does not require compliance with the Federal initial program 
regulations at Subchapter B or the West Virginia permanent regulatory 
program as a prerequisite to the termination of jurisdiction over an 
initial program site. In addition, the Director is requiring that the 
State further amend subsection (c)(1) to require compliance with the 
Federal initial program regulations at Subchapter B or the West 
Virginia permanent regulatory program regulations as a prerequisite to 
the termination of jurisdiction over an initial program site.
2. CSR Sec. 38-2-2  Definitions
    a. Chemical treatment. The WVDEP proposes to define ``chemical 
treatment'' at subsection 2.20. This definition, among other 
applications, applies to the bond release provisions at CSR 38-2-
12.2(e). CSR 38-2-12.2(e) prohibits bond release where chemical 
treatment is necessary to bring water discharged from or affected by 
the operation into compliance with effluent limitations or water 
quality standards as set forth in CSR 38-2-14.5(b). In effect, for 
example, under the proposed definition, bond would not be released 
under Sec. 38-2-12.2(e) if water discharged from or affected by an 
operation is being actively treated by chemical reagents (such as 
sodium hydroxide or calcium carbonate) to bring a discharge into 
compliance. The bond would be released, however, if that same water 
were being treated, instead, by passive treatment systems (such as 
wetlands or limestone drains) to bring the discharge into compliance. 
The Director finds that the blanket exclusion of passive treatment 
systems from the definition of chemical treatment would render the West 
Virginia program less effective than the Federal regulations at 30 CFR 
800.40(c)(3) concerning release of bond. 30 CFR 800.40(c)(3) provides 
that no bond shall be fully released until reclamation requirements of 
SMCRA are fully met. If treatment is necessary to maintain compliance, 
whether it be active or passive treatment, then the hydrologic 
protection standards of SMCRA section 515(b)(10) have not been fully 
met and bond cannot be released. The withheld bond helps assure that 
the required treatment will be continued. The fact that a treatment 
system is ``passive,'' and may not require human intervention as 
frequently as an ``active'' treatment system, does not diminish the 
need for assurance that treatment will be provided as long as is 
necessary to maintain compliance. Therefore, the Director is approving 
the definition of ``chemical treatment'' except to the extent that it 
would allow bond release where passive treatment systems are used to 
achieve compliance with applicable effluent limitations as discussed 
above. In addition, the Director is requiring that West Virginia 
further amend the West Virginia program to clarify that bond may not be 
released where passive treatment systems are used to achieve compliance 
with applicable effluent limitations. This finding does not mean that 
OSM is discouraging the use of mining and reclamation practices and the 
use of passive treatment systems that help minimize water pollution. On 
the contrary, when such practices and passive systems are designed into 
the approved operations and reclamation plans, they become an integral 
part of an effective program to minimize the formation of acidic or 
toxic drainage. However, when such passive systems are used to treat a 
discharge that would otherwise not be in compliance with effluent 
discharge limitations, such systems are, in effect, chemical treatment 
and bond release should not be granted. Passive treatment systems have 
not yet been proven effective for all parameters or on a long-term 
basis; their effectiveness appears to decrease over time. See OSM's 
directive TSR-10, Use of Wetland Treatment Systems for Coal Mine 
Drainage, for further information on this issue.

[[Page 6518]]

    b. Impoundment or impounding structure; operator; prospecting; and 
sediment control or other water retention structure, sediment control 
or other water retention system, sediment pond. The Director finds the 
proposed definition of ``impoundment or impounding structure'' at CSR 
38-2-2.66 is substantively identical to the Federal definition at 30 
CFR 701.5 and is removing the required amendment codified at 30 CFR 
948.16(f).
    The State is adding the proposed definition of ``operator'' at CSR 
38-2-2.81. This definition is substantively identical to the proposed 
statutory State definition of ``operator'' at Sec. 22-3-3. See Finding 
A-3a above for a complete discussion. The Director finds the proposed 
definition of ``operator'' is consistent with the Federal definitions 
at section 701 of SMCRA and 30 CFR 701.5.
    The Federal counterpart to the definition of ``prospecting,'' is 
the Federal definition of ``coal exploration'' at 30 CFR 701.5. The 
State and Federal definitions are different in that the Federal 
definition includes all data gathering without consideration of whether 
or not disturbance occurs. However, the Director finds the proposed 
definition of ``prospecting'' at CSR 38-2-2.95, while different, 
doesn't render the State program less effective than the Federal 
regulations, in light of the fact that CSR 38-2-13.1 contains all the 
appropriate requirements for a notice of intent to prospect where no 
disturbance is anticipated (see Finding B30 below). The Director is 
approving the definition of prospecting, and removing the required 
amendment at 30 CFR 948.16(nn). In addition, the Director notes an 
apparent inconsistency between the definition of prospecting at CSR 38-
2-2.95, which excludes the gathering of environmental data without 
disturbance from the definition of prospecting, and the requirements 
for a notice of intent to prospect at CSR 38-2-13, which recognize that 
prospecting can include data gathering without disturbance. The State 
may want to correct this.
    The Director finds the definition of ``sediment control or other 
water retention structure, sediment control or other water retention 
system, or sediment pond'' at CSR 38-2-108 to be consistent with the 
federal definition of ``siltation structure'' at 30 CFR 701.5 and can 
be approved, and the required amendment at 30 CFR 948.16(n) is 
partially satisfied.
3. CSR Sec. 38-2-3.1  Application Information
    New subsection 3.1(o) is added to authorize the grouping of 
ownership and control information by permittees who are so related by 
the submittal and maintenance of a centralized ownership and control 
file. Each file must contain required information at CSR Sec. 38-2-3.1 
(a), (c), (d), and (l) and be updated at least quarterly. However, the 
file must be complete and accurate during the time that an application 
is pending. There is no counterpart to the proposed language. However, 
the Director finds that the proposed provision is not inconsistent with 
the Federal requirements at 30 CFR 773.15 concerning review of permit 
applications and can be approved to the extent that all permit 
applicants which maintain centralized ownership and control files are 
also required to comply with all of the informational provisions 
contained in CSR 38-2-3.1.
4. CSR Sec. 38-2-3.4  Maps
    The State proposes to revise paragraph (d), subparagraphs (18), 
(22), (23), and (24) to require that the permit application identify 
each topsoil and noncoal waste storage area, each explosive storage and 
handling facility and the area of land to be affected within the 
proposed permit area according to the sequence of mining and 
reclamation. This revision is intended to satisfy the requirements of 
30 CFR 948.16(t). Paragraph (d)(23) concerning explosive storage 
facilities has also been amended to read as follows: ``The location of 
any explosive storage and handling facility; which will remain in place 
for an extended period of time during the life of the operation.'' The 
Director finds that the amendments are substantively identical to and 
no less effective than the requirements of 30 CFR 780.14(b), and that 
30 CFR 948.16(t) can be removed.
5. CSR Sec. 38-2-3.6  Operation Plan
    West Virginia proposes to revise paragraph (k) of this subsection 
to require the submission of a fugitive dust control plan. This 
revision is intended to satisfy the requirements of 30 CFR 948.16(s). 
The Director finds the amendment to be substantively identical to and 
no less effective than 30 CFR 780.15(a)(2) concerning a plan for 
fugitive dust control practices, and that 30 CFR 948.16(s) is satisfied 
and can be removed.
6. CSR Sec. 38-2-3.7  Excess Spoil
    The State proposes to delete the provision in paragraph (a) which 
gives the Director authority to approve alternative design requirements 
for excess spoil fills. This deletion satisfies the deficiency noted at 
30 CFR 948.15(k)(3) and the requirement at 948.16(i) which can be 
removed.
7. CSR 38-2-3.8  New and Existing Structures and Support Facilities
    Subsection 3.8(a) is amended to require that each permit 
application contain a description, plans, and drawings for each support 
facility to be constructed, used or maintained within the proposed 
permit area. The Director finds the proposed language to be 
substantively identical to and no less effective than 30 CFR 780.38 
concerning support facilities.
    Subsection (d) is amended by adding a provision that will provide 
for the permitting and bonding of a facility or structure that is to be 
shared by two or more separately permitted mining operations. The 
Director finds that the provision is substantively identical to and, 
therefore, no less effective than the Federal provision concerning 
shared facilities at 30 CFR 778.22 and can be approved.
8. CSR Sec. 38-2-3.12  Subsidence Control Plan
    The State proposes to revise paragraph (a), subparagraph (5) to 
require that measures be taken to mitigate or remedy material damage to 
structures due to subsidence in accordance with subsection 16.2(c) and 
(d) in addition to the existing requirement of meeting 16.2(a) 
concerning surface owner protection. While there is no direct Federal 
counterpart to this proposal, the Director finds the proposed revisions 
to be consistent with the Federal requirements at 30 CFR 784.20(b) 
concerning subsidence control plans. The State also proposes to delete 
the phrase in paragraph (d), subparagraph (2) which does not require an 
identification of measures to be taken to protect structures when the 
applicant demonstrates the right to subside without liability. This 
revision is consistent with the 1992 Energy Policy Act, which added 
section 720 to SMCRA and requires repair or compensation by the 
operator for material damage to structures caused by subsidence 
regardless of any ``right to subside.''
9. CSR Sec. 38-2-3.14  Removal of Abandoned Coal Waste Piles
    The State proposes to revise paragraph (a) of this subsection which 
allows the State to issue a special permit solely for the removal of 
existing abandoned coal processing waste piles. 

[[Page 6519]]
The added language requires that if the average quality of the refuse 
material can be classified as coal using the BTU standard in ASTM D 
388-88, a permit application which meets all applicable requirements of 
Sec. 38-2-3 shall be required. This revision is intended to satisfy the 
deficiency of 30 CFR 948.15(k)(4). The Director finds the proposed 
language is consistent with the Federal requirements at 30 CFR 773.11 
concerning requirements to obtain permits and can be approved, and that 
30 CFR 948.15(k)(4) is satisfied.
10. CSR Sec. 38-3.15  Approved Person
    West Virginia proposes to revise its approved person requirements 
in this subsection. The State is proposing to allow approved persons to 
certify associated facilities. It also proposes to require the 
submission of a registration or license in addition to a resume. 
Finally, it proposes to delete the provisions which allow the director 
to require a person to requalify for ``approved person'' status, and to 
suspend or withdraw ``approved person'' status. Although there are no 
Federal counterparts, the Director finds the proposed changes are not 
inconsistent with SMCRA and the Federal regulations concerning 
requirements for permits and permit processing, since the State has 
retained the provision, at subsection 3.15(a), which states that 
``approved person'' may only be designated by the regulatory authority 
where the WVSCMRA does not otherwise prohibit such designations.
11. CSR Sec. 38-2-3.16  Fish and Wildlife Resources
    The State proposes to revise paragraph (a) to this subsection 
deleting the word ``approval''. Under the revised provision, the 
regulatory authority will provide only for coordination of review of 
permits where such coordination is appropriate pursuant to the Fish and 
Wildlife Coordination Act (16 U.S.C. 661 et seq.). The Director finds 
the proposed deletion does not render the West Virginia program less 
effective than 30 CFR 780.16 concerning fish and wildlife information.
12. CSR Sec. 38-2-3.25  Transfer, Assignment or Sale of Permit Rights
    The State proposes to revise paragraph (a), subparagraph (4) of 
this subsection to provide that the approval of a transfer application 
may be granted in advance of the close of the public comment period, 
provided that the Director can immediately withdraw approval if 
information is made available as a result of public comment that would 
preclude approval. There is no direct Federal counterpart to the 
proposed language. The Federal regulations at 30 CFR 774.17(b) provide 
that an applicant for approval of the transfer, assignment, or sale of 
permit rights shall (at (b)(2)) advertise the filing of the application 
and identify where written comments may be sent. The State counterpart 
to the notice requirements of 30 CFR 774.17(b)(2) is CSR 38-2-
3.25(a)(3). While the Federal requirements at 30 CFR 774.17(b)(2) 
require public notice, they do not prohibit application approval prior 
to the end of the public comment period. The State proposal provides 
the regulatory authority with reasonable flexibility to promptly 
conclude approvals of transfer, assignment or sale of permit rights 
while also assuring that public comment is considered and in those 
cases where public comment presented information that would preclude 
approval, the State can immediately withdraw approval. The Director 
finds that the proposed language is not inconsistent with the intent of 
30 CFR 774.17 concerning transfer, assignment, or sale of permit rights 
and can be approved. See Finding A6, above for the Director's approval 
of the statutory provision at Sec. 22-3-8 concerning permit transfers.
    Paragraph (a)(4) is also amended to add reference to subsection 
``3.32(d)(7)'' (formerly subsection 3.31) which requires a finding by 
the State that the applicant has paid all reclamation fees from 
previous and existing operations. The Federal regulations at 30 CFR 
774.17(d)(1) provide that an application for a transfer, assignment or 
sale may be granted where the applicant is eligible to receive a permit 
in accordance with 30 CFR 773.15(b) and (c). The State counterpart to 
30 CFR 774.17(d)(1) is contained at CSR 38-2-3.25(a)(4).
    This paragraph requires that applicants be eligible for permits in 
accordance with CSR 38-2-3.32(c), which is the State counterpart to 30 
CFR 773.15(b). However, subsection 3.25(a)(4), as proposed, adds a 
cross-reference to only one portion of the State's counterpart to 30 
CFR 773.15(c), namely, subsection 3.32(d)(7), pertaining to payment of 
reclamation fees. The State has argued, and the Director agrees, that 
the other findings contained in subsection 3.32(d) (30 CFR 773.15(c)) 
need not be made during the review of an application for transfer, 
assignment or sale since these findings relate to the issuance of the 
original permit, and should, therefore, remain valid. However, the 
finding at subsection 3.32(d)(7), pertaining to payment of reclamation 
fees, must be made, since it relates specifically to the applicant for 
transfer, assignment or sale. Therefore, the Director finds that the 
additional reference to subsection 3.32(d)(7) renders the State's 
program no less effective than the Federal regulations at 30 CFR 
774.17(d)(1) and can be approved.
    The State also proposes to revise this subsection by revising 
paragraph (c) and by adding paragraphs (d) and (e). These requirements 
provide that permit assignments (operator reassignments) be advertised, 
contain the ownership and control information required by Subsection 
3.1 and subcontractors be subject to the eligibility requirements of 
Subsection 3.32. This revision is intended to satisfy the requirements 
of 30 CFR 948.16(v). Although there is no direct Federal counterpart, 
the Director finds the added language is no less effective than 30 CFR 
774.17, and that 30 CFR 948.16(v) is satisfied can be removed.
13. CSR 38-2-3.26  Ownership and Control Changes
    The language of this subsection is new and governs the reporting of 
name changes, replacements, and additions to the ownership and control 
information for any surface mining operation or permittee. While there 
is no direct Federal counterpart to the proposed language, the Director 
finds that the proposed language is not inconsistent with 30 CFR 778.13 
concerning identification of interests and 778.14 concerning violation 
information and can be approved.
14. CSR 38-2-3.27(a)  Permit Renewals and Permit Extensions
    The WVDEP proposes to add a provision which will allow the Director 
to waive the requirements for permit renewal if the permittee certifies 
in writing that all coal extraction is completed, that all backfilling 
and regrading will be completed within 60 days prior to the expiration 
date of the permit and that an application for Phase I bond release 
will be filed prior to the expiration date of the permit. The proposal 
also provides that failure to complete backfilling and grading within 
60 days prior to the expiration date of the permit will nullify the 
waiver. Finally, operations granted inactive status are also subject to 
permit renewal requirements. The Director finds this provision to be 
consistent with and no less effective than 30 CFR 773.11 which provides 
that a permittee need not renew the permit if no surface coal mining 
operations will be conducted under the permit and solely reclamation 
activities remain to be done.

[[Page 6520]]

15. CSR Sec. 38-2-3.28  Permit Revisions
    The State proposes to revise paragraph (b) in this subsection to 
require that each application for a permit revision be reviewed by the 
director to determine if an updated probable hydrologic consequences 
determination (PHC) or cumulative hydrologic impact assessment (CHIA) 
is needed. The Director finds the proposed revisions are substantively 
identical to and, therefore, no less effective than the Federal 
regulations at 30 CFR 780.21(f)(4) concerning PHC determinations.
    The State also proposes to revise paragraph (c) to give the 
Director the authority to require reasonable revision of a permit at 
any time and to delete the provision which only required a revision to 
assure adequate protection of the environment or public health and 
safety. The revisions also require notice to the permittee of the need 
for revisions and reasonable time for compliance. The Director finds 
that the proposed revisions are similar to and no less effective than 
the Federal regulations at 30 CFR 774.11(b) concerning review of 
permits. These revisions satisfy the deficiency at 30 CFR 948.15(k)(5) 
and the requirements of 948.16 (j) and (w). 30 CFR 948.16 (j) and (w) 
are hereby removed.
16. CSR Sec. 38-2-3.29  Incidental Boundary Revisions (IBRs)
    West Virginia proposes to revise its incidental boundary revision 
(IBR) requirements in this subsection. The revisions in paragraph (a) 
provide that IBRs will be limited to minor shifts or extensions into 
non-coal areas or areas where coal extraction is incidental to or of 
only secondary consideration of the intended purpose of the IBR. IBRs 
will not be granted to abate a violation for encroachment beyond the 
original permit boundaries, unless an equal amount of area is deleted 
from the permitted area. Paragraph (b) is revised to allow IBRs for 
underground mines to be larger than 50 acres when an applicant 
demonstrates the need for a larger IBR. Also, applications for an IBR 
must be accompanied by an adequate bond, a map showing the IBR area and 
a reclamation plan for the area of the IBR. The State proposes to 
delete subparagraph (6) which provides that all provisions of the IBR 
which differ from the original permit meet the requirements of the Act 
and regulations, except as provided in this subsection. Finally, the 
State proposes to add paragraph (e) which gives the Director the 
authority to require the publication of an advertisement that provides 
for a ten-day public comment period for an IBR application.
    There is no definition for ``incidental boundary revisions'' 
contained in either SMCRA or the Federal regulations. However, the 
Director notes that under the proposed language IBR's will not be 
authorized for surface or underground operations in cases where 
additional coal removal is the primary purpose of the revision. 
Therefore, the Director finds the proposed amendments to be consistent 
with the principal intent of sections 511(a)(3) of SMCRA and 30 CFR 
774.13(d) which pertain to incidental boundary revisions.
17. CSR Sec. 38-2-3.30  Variances
    The State proposes to revise its variance requirements at 
paragraphs (b), (c), (d) and (e) of this subsection. These paragraphs 
set forth requirements for granting variances from contemporaneous 
reclamation. These revisions are intended to satisfy the requirements 
at 30 CFR 948.16(x). The Director finds the proposed language is 
substantively identical to and no less effective than 30 CFR 785.18 
concerning variances for delay in contemporaneous reclamation 
requirements in combined surface and underground mining activities. The 
Director also finds the revisions do satisfy the requirements at 30 CFR 
948.16(x), which is hereby removed.
18. CSR 38-2-3.31(a)  Exemption for Government Financed Highway or 
Other Construction
    The WVDEP proposes to revise its rules to allow exemptions from the 
requirements of the WVSCMRA for county, municipal or other local 
government-financed highway or other construction. The Director finds 
this amendment to be consistent with and no less effective than the 
Federal definitions of ``government financing agency'' and 
``government-financed construction'' at 30 CFR 707.5.
19. CSR Sec. 38-2-3.32  Permit Findings
    The State proposes to delete the provision in this subsection which 
requires the WVDEP to use and update ownership and control information 
from surrounding States in the issuance of permits. While there is no 
direct counterpart to the language that is being deleted, the Director 
finds the deletion does not render the West Virginia program less 
effective than the requirements of 30 CFR 773.15(b) concerning review 
of violations. The West Virginia program continues to provide for the 
review of outstanding violations at CSR Sec. 38-2-3.32 (b) and (c).
20. CSR Sec. 38-2-3.33  Permit Conditions
    The State proposes to delete subsection (i) concerning an annual 
submittal of information required at Sec. 38-2-3.1. There is no direct 
Federal counterpart to the deleted language. The Director finds the 
proposed deletion does not render the West Virginia program less 
effective than 30 CFR 773.17 concerning permit conditions. The West 
Virginia program continues to retain at CSR 38-2-3.33(h) a counterpart 
to 30 CFR 773.17(i) concerning notification requirements following 
cessation orders.
21. CSR 38-2-3.34  Improvidently Issued Permits
    The WVDEP proposes to amend paragraph (b) by inserting the phrase 
``in paragraph (b) of subsection 3.32 of this section.'' This amendment 
identifies where in the West Virginia program the violations review 
criteria are located. The Director finds this change to be consistent 
with and no less effective than 30 CFR 773.20(b)(1)(i).
    Subparagraph (b)(3) has been amended by deleting the existing 
language and adding in its place language that is substantively 
identical to and no less effective than 30 CFR 773.20(b)(1)(iii).
    New subparagraph (b)(4) has been added to provide that a permit 
shall be determined to have been improvidently issued when the 
permittee had a permit revoked or bond forfeited and has not been 
reinstated, or the permittee was linked to a permit revocation or bond 
forfeiture through ownership or control, at the time the permit was 
issued and an ownership or control link between the permittee and the 
person whose permit was revoked or whose bond was forfeited still 
exists, or when the link was severed the permittee continues to be 
responsible for the permit revocation or bond forfeiture. Although 
there is no direct Federal counterpart, the Director finds the added 
language to be consistent with the definition of ``violation notice'' 
at 30 CFR 773.5, which definition includes notices of bond forfeiture, 
with 30 CFR 773.20 concerning improvidently issued permits.
    Paragraph (c) is amended to add ``permit revocation or a bond 
forfeiture'' to the list of circumstances that can cause a finding that 
a permit was improvidently issued. While there is no direct Federal 
counterpart, the Director finds the added language to be consistent 
with the definition of ``violation notice'' at 30 CFR 773.5 and with 30 
CFR 773.20(a)(1).

[[Page 6521]]

    New subparagraph (d)(1)(E) is added to the list of circumstances 
that could prevent an automatic suspension or rescission of a permit. 
Under subparagraph (d)(1)(E), a permit would not be automatically 
suspended or revoked if the permittee or other person responsible for 
the permit revocation or bond forfeiture has been reinstated, pursuant 
to section 18(c) of the WVSCMRA. While there is no direct Federal 
counterpart, the Director finds the added language to be consistent 
with 30 CFR 773.21(a) concerning automatic suspension or rescission of 
permits.
    West Virginia proposes to amend paragraph (f) of this subsection to 
change the cross reference in that paragraph to subsection ``(e),'' 
Section 17 of WVSCMRA. The Director finds the change does not render 
the West Virginia program less effective than 30 CFR 773.20(c)(2) 
concerning appeals of suspensions or rescissions of permits determined 
to have been improvidently issued.
    Paragraph (g) is being revised to clarify that the term ``permit 
issuance'' also includes permit transfers, assignments, or sales of 
permit rights, as well as revisions for ownership and control purposes. 
While there is no direct Federal counterpart, the Director finds the 
added language is not inconsistent with 30 CFR 773.15 concerning review 
of permit applications.
22. CSR Sec. 38-2-4  Haulageways, Roads, and Access Roads
    West Virginia proposes to revise all of its haulroad regulations at 
Section 4. The new haulroad and access road requirements provide for a 
road classification system, plans and specifications, stream crossings, 
standards for infrequently used roads, construction standards, drainage 
design standards, performance standards, maintenance standards, 
reclamation standards, primary road standards and certification. In 
addition, Section 4 contains design, construction, maintenance and 
abandonment requirements for other transportation facilities.
    a. Sec. 38-2-4.1  (a) Road Classification System. The WVDEP 
proposes to include haulageways and access roads under its road 
classification system, and is defining ``primary road.'' The Director 
finds these amendments to be substantively identical to and no less 
effective than 30 CFR 816.150(a) concerning road classification system, 
and 30 CFR 816.150(a)(2) concerning the definition of ``primary road.''
    b. Sec. 38-2-4.2 Plans and Specifications. These amendments set for 
the requirements for each road to be constructed, used, or maintained 
within the permit area. The provisions specify that road designs are to 
be certified as meeting the requirements of the WVSCMRA and 
implementing rules. The WVDEP is also reorganizing its rules by 
deleting the title ``4.3 Stream Crossings'' and designating paragraph 
(a) of the deleted subsection 4.3 as paragraph (b) of subsection 4.2. 
This reorganization is intended to clarify that CSR 38-2-4.2(b) applies 
to all stream crossings, and is not limited to only roads in stream 
channels. Under the proposed revisions, CSR 38-2-4.2(b) applies to all 
roads whether they are within or crossing a stream. The Director finds 
the proposed provisions to be consistent with 30 CFR 780.37(a) 
concerning road systems; plans and drawings to the extent that the 
provisions pertain to all roads, whether they are within or crossing a 
stream. The Director notes that 30 CFR 780.37(a) cross references the 
Federal regulations at 30 CFR 816.150(d)(1) (concerning the prohibition 
against locating a road in the channel of a stream), and this in turn 
cross-references other Federal hydrologic protection rules. The State 
language does not contain a similar cross references in CSR 38-2-
4.2(b). The Director believes, however, that a lack of such cross 
references does not render the State program less effective. The State 
hydrologic protection standards apply regardless of whether or not they 
are cross-referenced.
    c. Sec. 38-2-4.3  Existing Haulageways or Access Roads. This 
subsection provides that where it can be demonstrated that 
reconstruction of existing haulageways or access roads to meet the 
required design, construction, and environmental protection standards 
of the West Virginia program would result in greater environmental 
harm, such reconstruction may be exempt from the standards at 
subsection 4.5(a)(1) and (2), and subsection 4.6(a)(2)(A) and (b), 
where the sediment control requirements of CSR 38-2-5 can otherwise be 
met. The provisions in the State program contain grade requirements for 
roads. Since the Federal regulations contain no specific road grade 
requirements, for roads. Since the Federal regulations contain no 
specific road grade requirement but merely require, at 30 CFR 
816.150(c), that designs include appropriate grade limits, the Director 
finds these provisions to be consistent with and no less effective than 
30 CFR 780.37(a) and 816.150(c) concerning plans and drawings.
    d. Sec. 38-2-4.4  Infrequently Used Access Roads. This provision 
requires that infrequently used access roads be designed to ensure 
environmental protection appropriate for their planned duration and 
use, and be constructed in accordance with current prudent engineering 
practices and any necessary design criteria established by the 
Director. A statement has been added to clarify that prospecting roads 
are to be designed, constructed, maintained, and reclaimed in 
accordance with subsection 13.6 which governs prospecting roads. Cross 
references have also been revised. The Director finds the proposed 
amendments to be consistent with and no less effective than 30 CFR 
816.150(c) concerning design and construction limits and establishments 
of design criteria.
    Subsection 4.4 is also revised to provide that roads constructed 
for and used only to provide for infrequent service to facilities used 
in support of mining and reclamation operations may be exempt from all 
haulroad requirements in CSR 38-2-4, except for subsections 4.2, 4.3, 
4.5(a)(1), 4.5(b), 4.6(a), 4.7, and 4.8. These ``infrequently used 
access roads'' include all roads defined as ``ancillary roads'' under 
30 CFR 816.150(a)(3). Under the Federal regulations, ancillary roads 
must comply with all requirements contained in 30 CFR 816.150. To be 
consistent with the Federal regulations, the State program must require 
that all ``infrequently used access roads'' comply with the State 
program counterparts to 30 CFR 816.150. However, subsection 4.4, as 
proposed, would exempt infrequently used access roads from the 
requirements of subsection 4.9, which is the State program counterpart 
30 CFR 816.150(f) pertaining to reclamation of roads. Therefore, the 
Director is not approving subsection 4.4 to the extent that it exempts 
infrequently used access roads from the requirements of subsection 4.9. 
The Director is also requiring the State to amend its program to 
require that all infrequently used access roads comply with CSR 38-2-
4.9.
    e. Sec. 38-2-4.5  Construction. This provision sets forth the grade 
limits for the construction of haulageways or access roads and the 
tolerance standards for grade measurements and linear measurements. 
While there are no direct Federal counterparts, the Director finds 
these amendments to be consistent with 30 CFR 816.150(c), which 
requires that designs for roads contain appropriate grade limits.

[[Page 6522]]

    f. Sec. 38-2-4.6  Drainage Design. These amendments set forth the 
standards for all drainage designs of haulageways or access roads. The 
amendments also specify that culverts shall be installed and maintained 
to sustain the vertical soil pressure, the passive resistance of the 
foundation and the weight of the vehicles using the road. While there 
are no Federal counterparts which apply to all roads, the Director 
finds these amendments to be consistent with 30 CFR 816.150(c), which 
requires that road designs contain plans for surface drainage control, 
and 30 CFR 816.151(d) concerning drainage control for primary roads.
    g. Sec. 38-2-4.7  Performance Standards. These amendments are 
intended to set forth the performance standards for the location, 
design, construction, reconstruction, use, maintenance, and reclamation 
of roads. The Director finds the proposed amendments to be no less 
effective than 30 CFR 816.150(b) concerning performance standards for 
roads. The proposed changes governing sediment storage volume and 
detention time as applied to drainage from roads are intended to 
clarify that the regulatory authority may approve lesser storage values 
than 0.125 acre/feet if compliance with the applicable effluent limits 
and the general performance standards for roads can be achieved. OSM 
conducted a study of West Virginia's 0.125 acre/feet standard and 
determined that its application in West Virginia does not render the 
State program less effective than the Federal regulations at 30 CFR 
816.46(c)(1)(iii) (Administrative Record Number WV-890). The study did 
not address the adequacy of lesser storage values. However, so long as 
the end result is that applicable effluent limits are not exceeded, 
West Virginia may allow the use of lesser storage values. Therefore, 
the Director finds that the proposed language, which continues to 
require compliance with the applicable effluent limitations and 
performances standards for roads and providing the regulatory authority 
with reasonable flexibility in implementing the West Virginia program, 
does not render the West Virginia program less effective than the 
Federal regulations at 30 CFR 816.46(c)(1)(iii) concerning siltation 
structures.
    h. Sec. 38-2-4.8  Maintenance. These amendments provide that roads 
shall be maintained to meet the West Virginia performance standards for 
roads and any additional standards specified by the State. Roads that 
are damaged by catastrophic events shall be repaired as soon as is 
practicable. The Director finds these amendments to be substantively 
identical to and no less effective than 30 CFR 816.150(e) concerning 
maintenance.
    i. Sec. 38-2-4.9  Reclamation. These amendments set forth the 
performance standards for roads that are not to be retained under the 
approved postmining land use. With the exception of subsection 4.9(e), 
the Director finds the amendments to be substantively identical to and, 
therefore, no less effective than 30 CFR 816.150(f)(1-4), and (6), 
concerning reclamation of roads. Subsection 4.9(e) contains drainage 
and culvert requirements for road abandonment. While there are no 
direct Federal counterparts, the Director finds these requirements to 
be consistent with and, therefore, no less effective than the 
requirement to protect the natural drainage contained in 30 CFR 
816.150(f)(5).
    j. Sec. 38-2-4.10  Primary Roads. These amendments set forth the 
performance standards for primary roads. The Director finds these 
amendments to be substantively identical to and, therefore, no less 
effective than 30 CFR 816.151 concerning primary roads.
    k. Sec. 38-2-4.11.  Support Facilities and Transportation 
Facilities. These amendments set forth the requirements for support and 
transportation facilities such as railroad loops, spurs, sidings, 
surface conveyor systems, chutes, and aerial tramways ``which are under 
the control of the permittee.'' The Director is concerned that the 
phrase ``which are under the control of the permittee'' could be 
interpreted to exclude from these requirements certain support 
facilities which are within the definition of ``surface coal mining 
operations'' at 30 CFR 700.5. Therefore, the Director is approving this 
amendment only to the extent that it does not exclude facilities that 
are included within the definition of ``surface coal mining 
operations'' at 30 CFR 700.5.
    l. Sec. 38-2-4.12.  Certification. This provision requires that, 
upon completion of construction, all primary roads for which design 
criteria were approved as part of the permit shall be certified. Where 
the certification statement for a primary road indicates a change from 
design standards or construction requirements in the approved permit, 
such changes must be documented in as-built plans and submitted as a 
permit revision. The Director finds the proposed language to be 
consistent with and no less effective than 30 CFR 816.151(a) concerning 
certification, and 30 CFR 774.13 concerning permit revisions.
    This subsection also requires that all roads used for 
transportation of coal or spoil, and which are constructed outside the 
permitted coal extraction area shall be certified before they are used 
for such transportation. Finally, any roads within the coal extraction 
area which are constructed concurrently with progress of mining 
activities shall be certified in increments of 1,000 linear feet as 
measured from the active pit. While there are no Federal counterparts 
to these two proposals, the Director finds that they are consistent 
with 30 CFR 780.37(b) and 816.151(a).
23. CSR Sec. 38-2-5.2  Intermitteent or Perennial Streams
    The State proposes to revise this subsection to provide that before 
the director can approve any mining within 100 feet of an intermittent 
or perennial stream, the director must find that such activities will 
not cause or contribute to the violation of applicable State or Federal 
water quality standards. The Director finds that the amendment 
satisfies 30 CFR 948.16(aa) and can be approved. 30 CFR 948.16(aa) is 
hereby removed.
24. CSR Sec. 38-2-5.4  Sediment Control
    West Virginia proposes to revise paragraph (a) of this subsection 
to make its sediment control requirements applicable to other water 
retention structures, and it is deleting all references to on-bench 
sediment control systems. The State has also deleted the reference to 
the design, construction and maintenance criteria in the Technical 
Handbook. The Director finds that this revision satisfies the 
requirements of 30 CFR 948.15(k)(6) and 30 CFR 948.16(n) and can be 
approved. The required amendment at 30 CFR 948.16(n) is hereby removed.
    Paragraph (b) is revised to make its design and construction 
requirements applicable to sediment control or other water retention 
structures used in association with the mining operation. The State has 
deleted references to on-bench sediment control structures. The 
Director finds this deletion is consistent with the deletion at 
paragraph 5.4(a), and does not render the West Virginia program less 
effective than the Federal regulations at 30 CFR 780.25, 816,45, 816.46 
and 816.49.
    Subparagraph (b)(12) is revised to require that foundation 
investigations and any necessary laboratory testing be performed to 
determine foundation stability design for impoundments meeting the size 
or other criteria of 30 CFR 77.216(a). This revision satisfies the 
requirement at 30 CFR 948.16(pp) and can be approved, and 30 CFR 
948.16(pp) can be removed.

[[Page 6523]]

    Subparagraph (b)(13) has been revised to require that all sediment 
control and other water retention structures be certified in accordance 
with the design requirements of the Act and regulations and other 
design criteria established by the Director. The Director finds the 
proposed language to be consistent with and no less effective than 30 
CFR 780.25 concerning reclamation plans for siltation structures, 
impoundments, banks, dams, and embankments.
    West Virginia proposes to revise paragraph (c) to make the 
requirements of that paragraph applicable to all embankment type 
sediment control or other water retention structures, including slurry 
impoundments. The Director finds that this revision satisfies the 
requirement at 30 CFR 948.16(qq) and can be approved. 30 CFR 948.16(qq) 
is hereby removed.
    Subparagraph (c)(3) is revised to require the installation of 
cutoff trenches during embankment construction to ensure stability. The 
Director finds that this revision satisfies the requirement at 30 CFR 
948.16(rr) and can be approved. 30 CFR 948.16(rr) is hereby removed.
    Subparagraph (c)(4) is revised to require prompt notification of 
the State if any examination or inspection of an impoundment discloses 
that a hazard exists. The Director finds that this revision satisfies 
the requirement at 30 CFR 948.16(ss) and can be approved. 30 CFR 
948.16(ss) is hereby removed.
    Subparagraph (c)(6) is revised to require that the design plan for 
an impoundment which meets the size criteria of 30 CFR 77.216(a) 
include a stability analysis which includes but is not limited to 
strength parameters, pore pressures, and long-term seepage conditions. 
Subparagraph (c)(6) also provides that the design plan will include a 
description of each engineering design assumption and calculation. 
These revisions satisfy the requirements at 30 CFR 948.16(ccc) and can 
be approved, and 948.16(ccc) can be removed.
    Paragraph (d) has been revised to require that where sediment 
control or other water retention structures are constructed in sequence 
with the advance of the mining to allow for on-bench construction, such 
systems shall be constructed and certified in sections of 1,000 linear 
feet or less as measured from the active pit. While there is no direct 
Federal counterpart to the proposed language, the Director finds that 
the language is not inconsistent with 30 CFR 816.49(a)(3) concerning 
design certification.
    The State proposes to revise paragraph (e) to require the 
inspection of sediment control or other water retention structures. The 
State also proposes to require that the professional engineer, licensed 
land surveyor, or other specialist involved in the inspection of 
impoundments be experienced in the construction of impoundments. The 
Director finds that this revision satisfies the requirement at 30 CFR 
948.16(uu) and can be approved, and 948.16(uu) can be removed.
    West Virginia proposes to revise paragraph (h) to make its 
abandonment requirements applicable to sediment control and other water 
retention structures. The Director finds that these changes do not 
render the State program less effective than the Federal regulations, 
and are consistent with the required amendment at 30 CFR 948.16(n) and 
can be approved.
25. CSR 38-2-5.5  Permanent Impoundments
    The WVDEP proposes to clarify that sediment or water retention or 
impounding structures left in place after final bond release must be 
authorized by the Director as part of the permit application or a 
revision to a permit. The Director finds this revision partially 
satisfies 30 CFR 948.16(vv) (the first sentence) and can be approved. 
The Director is making this finding with the assumption that the 
apparent typographical error in the first sentence of subsection 5.5 
(``review'' should be ``revision'') will be corrected. The State has 
also proposed to amend subsection 5.5(c) to require the landowner to 
provide for sound future maintenance of a permanent impoundment. The 
Director finds that this provision satisfies the requirement codified 
in the second sentence of 30 CFR 948.16(vv). The proposed provisions 
are approved, and 30 CFR 948.16(vv) is hereby removed.
26. CSR 38-2-6  Blasting
    a. Sec. 38-2-6.3(b)  Public Notice of Blasting Operation. This 
subsection is amended to require that all local governments and 
residents or owners of dwellings or structures located within one-half 
mile of the blast site be notified of surface blasting activities 
incident to an underground mine. The State also proposes to require 
that the blasting notification be announced weekly, but in no case less 
than 24 hours before the blasting will occur. The Director finds the 
amended language to be substantively identical to and no less effective 
than 30 CFR 817.64(a).
    b. Sec. 38-2-6.6  Blasting Control for Other Structures. The State 
proposes to revise Subsection 6.6 to require that all non-protected 
structures in the vicinity of the blasting area be protected from 
damage by the establishment of a maximum allowable limit on ground 
vibration specified by the operator in the blasting plan and approved 
by the Director. The Director finds that this revision satisfies the 
requirement at 30 CFR 948.16(cc) and can be approved. 30 CFR 948.16(cc) 
is hereby removed.
    c. Sec. 38-2-6.8  Preblast Survey. Subparagraph 6.8(a) is amended 
to delete language that excludes a certain portions of the permit area 
when determining the applicability of preblast survey notification 
requirements. The Director finds this revision satisfies the 
requirements of 30 CFR 948.15(k)(7) and 948.16(l) and can be approved. 
30 CFR 948.16(l) is hereby removed.
27. Sec. CSR 38-2-8.1  Protection of Fish and Wildlife and Related 
Value
    West Virginia proposes to add an exception to paragraphs (e)(1) and 
(e)(3) of Subsection 8.1 to require the use of the best technology 
currently available to protect raptors and large mammals, except where 
the Director determines that such requirements are unnecessary. The 
Director finds the added language to be substantively identical to and 
no less effective than 30 CFR 816.97(e)(1) and (3).
28. CSR Sec. 38-2-9  Revegetation
    The State proposes to revise paragraphs (g) and (h) of Subsection 
9.3 to require that, in determining success on areas to be developed 
for forestland and wildlife resources or commercial woodlands, the 
trees and shrubs counted be healthy and in place for not less than two 
growing seasons. This revision is intended to satisfy OSM's Regulatory 
Reform III letter of March 6, 1990. The Director finds these amendments 
to be substantively identical to and no less effective than 30 CFR 
816.116(b)(3)(ii) concerning revegetation, standards for success.
29. CSR Sec. 38-2-11.1  Insurance
    The State proposes to revise paragraph (a) of this subsection to 
clarify that liability insurance must be maintained throughout the life 
of the permit or any renewal thereof. The State also proposes to revise 
this paragraph to provide that there are no exclusions for blasting 
from the property damage coverage. The Director finds the proposed 
amendments are substantively identical to and no less effective than 30 
CFR 800.60 concerning terms and conditions for liability insurance.

[[Page 6524]]

30. CSR Sec. 38-2-13  Notice of Intent to Prospect
    Subsection 13.1 is added to this section. Under this subsection, 
where prospecting operations are proposed without surface disturbance 
and without appreciable impacts on land, air, water, or other 
environmental resources, the Director may waive the requirements of 
this section and the bonding requirements of Sec. 22A-3-7 of the 
WVSCMRA. To qualify, at least 15 days prior to commencement of any 
prospecting activities, the operator must file with the Director a 
written notice of intent to prospect. The notice must include a 
description of the activities to be conducted and a USGS topographic 
map showing the area to be prospected. The Director may approve the 
notice of intent subject to the findings required by paragraph (b) of 
Subsection 13.4. CSR 38-2-13.4(b) provides that the regulatory 
authority, to approve an application, must find, in writing, that the 
applicant has demonstrated that the prospecting operation will be 
conducted in accordance with section CSR 38-2-13, and other applicable 
provisions of the State regulations and statute, and the application. 
This revision is intended to satisfy in part the requirements of 30 CFR 
948.15(l)(2). The Director finds that the proposed language is no less 
effective than 30 CFR 772.11 concerning notice requirements for 
exploration removing 250 tons of coal or less. The Director notes that 
where no surface disturbance or other appreciable impacts caused by 
coal exploration are anticipated, and no lands unsuitable are involved, 
applicants will not have some of the information required by 30 CFR 
772.11, such as information related to drilling and trenching located 
at 772.11(b)(3) and reclamation located at 772.11(b)(5).
    Subsection 38-2-13.5(b) concerning performance standards for 
prospecting roads is deleted and new requirements for prospecting roads 
are established at CSR 38-2.13.6. The new provisions provide the 
environmental standards relevant to the location, design, construction 
or reconstruction, use, maintenance, and reclamation of prospecting 
roads. The Director finds the proposed standards are substantively 
identical to and no less effective than 30 CFR 816.150 concerning 
general performance standards for roads.
    Subsection 13.10 is revised to provide that, notwithstanding any 
other provision of this section, any person who proposes to conduct 
prospecting operations on lands which have been designated as 
unsuitable for surface mining pursuant to Sec. 22A-3-22 of the WVSCMRA 
shall file a notice of intent in accordance with Subsection 13.3. 
Approval of the notice of intent shall be in accordance with Subsection 
13.4. The Director finds the amendment to be consistent with and no 
less effective than 30 CFR 772.11(a).
31. CSR Sec. 38-2-14.5  Hydrologic Balance
    West Virginia proposes to revise paragraph (b) of this subsection 
to require that monitoring frequency and effluent limitations be 
governed by the standards set forth in a National Pollutant Discharge 
Elimination System (NPDES) permit issued pursuant to Sec. 20-5-1 et 
seq. of the West Virginia Code, the Federal Water Pollution Control Act 
as amended, 33 U.S.C. 1251 et seq. and the rules and regulations 
promulgated thereunder. The Director finds these amendments to be 
consistent with and no less effective than 30 CFR 816.42 concerning 
water quality standards and effluent limitations.
    Paragraph (c) has been revised to require that any water discharged 
from a permit area and treated complies with the requirements of 
paragraph (b) of this subsection, pertaining to NPDES permits. The 
Director finds this amendment is consistent with and no less effective 
than 30 CFR 816.42 concerning water quality standards and effluent 
limitations.
    Paragraph (h) has been revised to provide that a waiver of water 
supply replacement rights granted by a landowner can apply only to 
underground mining, provided that it does not exempt any operator from 
the responsibility of maintaining water quality. Under section 
720(a)(2) of SMCRA and 30 CFR 816.41(j), the permittee must promptly 
replace any drinking, domestic, or residential water supply that is 
contaminated, diminished, or interrupted by underground mining 
activities conducted after October 24, 1992, if the well or spring was 
in existence before the permit application was received. Such water 
supplies may be replaced by restoring a spring or an aquifer, or by 
providing water from an alternative source, such as from another 
aquifer or from a public water supply or a pipeline from another 
location.
    While a landowner may not desire the replacement of a water supply 
on his or her property, a waiver is only permissible under the 
circumstances set forth in paragraph (b) of the definition of 
``Replacement of water supply'' at 30 CFR 701.5.
    The definition of ``Replacement of water supply'' at 30 CFR 701.5 
provides that, at paragraph (b), if the affected water supply was not 
needed for the land use in existence at the time of loss, 
contamination, or diminution, and if the supply is not needed to 
achieve the postmining land use, replacement requirements may be 
satisfied by demonstrating that a suitable alternative water source is 
available and could feasibly be developed. If the latter approach is 
selected, written concurrence must be obtained from the water supply 
owner.
    Therefore, the waiver of water supply proposed to be authorized by 
the State must be consistent with the definition of ``Replacement of 
water supply'' at 30 CFR 701.5. The Director notes that while section 
720(a)(2) of SMCRA does not expressly authorize waivers, the 
regulations implementing this provision recognize that waivers are 
appropriate under certain circumstances, provided the permittee 
demonstrates that an alternative source is available. However, under 
the definition, no waivers (source or delivery system) are permissible 
if the water supply is needed for either the existing land use or the 
approved postmining land use.
    The Director finds that the proposed language is not inconsistent 
with SMCRA and the Federal regulations except to the extent that the 
proposed waiver would not be implemented in accordance with the 
definition of ``Replacement of water supply'' at 30 CFR 701.5. The 
Director also finds that this revision satisfies the requirements of 
948.16(q), and that 30 CFR 948.16(q) can be removed. In addition, the 
Director is requiring that the West Virginia program be further amended 
to clarify that under Section 22-3-24(b) and CSR 38-2-14.5(h), the 
replacement of water supply can only be waived under the conditions set 
forth in the definition of ``Replacement of water supply,'' paragraph 
(b), at 30 CFR 701.5.
32. CSR Sec. 38-2-14.8  Steep Slope Mining
    The State proposes to revise subparagraph (1) of paragraph (a) of 
this subsection to provide that casting of spoil from a higher seam to 
a lower seam in multiple seam operations may only occur where the 
highwall of the lower seam intersects the outcrop of the upper seam; 
the lowest seam is mined first or in advance of the upper seams; and 
minimum bench widths based on slopes are established on the lower bench 
sufficient to accommodate both spoil placement from the upper seam and 
bench drainage structures. This revision is intended to satisfy in part 
the requirements of 30 CFR 948.15(1)(2) by 

[[Page 6525]]
preventing the placement of spoil on natural intervening slopes.
    The Federal rules do not specifically address the use of cast 
blasting as a means of spoil transport in multi-seam operations. 
However, this practice is not inherently inconsistent with any Federal 
requirement. The State rule does not exempt these operations from 
compliance with other applicable requirements of the approved program. 
Instead, it would provide additional assurance that cast lasting is 
conducted in a safe and environmentally sound manner. For example, any 
State authorized cast blasting would necessarily have to comply with 
the approved State blasting provisions at CSR 38-2-6, such as the State 
rules controlling flyrock at CSR 38-2-6.5(d). The approved State 
requirements for the compaction and stability (a 1.3 static safety 
factor is required) of the backfill at CSR 38-2-14.8(a)(4) also apply. 
In some cases, the stability analysis might require that certain 
materials need to be rehandled to place spoil in its final place or to 
achieve adequate compaction of the backfill.
    The approved State requirements for contemporaneous reclamation at 
CSR 38-2-14.15 also apply. The approved State prohibition at CSR 38-2-
14.8(a)(1) of placing spoil on the downslope also applies. Where excess 
spoil is involved, the approved State requirements at CSR 38-2-14.14 
would also apply. The required amendment codified at 30 CFR 948.16(xx) 
is being revised to require that the State amend its program at CSR 38-
2-14.8(a) to specify design requirements of outcrop barriers that will 
be the equivalent of natural barriers and will assure the protection of 
water quality and insure the long-term stability of the backfill. With 
these considerations in mind, the Director finds that the amendment to 
allow the use of cast blasting is not prohibited by or otherwise 
inconsistent with SMCRA and the Federal regulations at 30 CFR 816.107 
concerning backfilling and grading of steep slopes. The Director is 
taking this opportunity to delete the required amendments codified at 
30 CFR 948.16(yy) and (zz). The required amendments are being removed 
because the West Virginia rules that had the deficiencies were never 
approved by the West Virginia legislature and do not appear in the 
latest submittal of the rules.
    The State also proposes to revise subparagraph (4) of paragraph (a) 
to prohibit placement of woody materials in the backfill unless the 
Director first determines that the method of placement of woody 
material will not deteriorate the future stability of the backfilled 
area. The Director finds the amended language substantively identical 
to 30 CFR 816.107(d), and that this revision satisfies the requirement 
at 30 CFR 948.16(hh). 30 CFR 948.16(hh) is hereby removed.
33. CSR Sec. 38-2-14.11  Inactive Status
    West Virginia proposes to revise paragraph (b) of this subsection 
to provide that the Director may grant inactive status for a period not 
to exceed one-half the permit term if it is determined that the 
application contains sufficient information to meet all requirements of 
paragraph (a): Provided that where the applicant documents in the 
application that the operations will become inactive for more than 30 
days, but will be reactivated on an intermittent and/or irregular basis 
during the approval period, such operations are not required to reapply 
for inactive status except at the termination date of the initial term 
of approval: Provided, however, that the Director may review the 
approval of inactive status during its term and require updated 
information pursuant to paragraph (a) and, based upon this or other 
information, may modify or rescind the approval prior to its initial 
termination date. The Director finds the amended language to be no less 
effective than 30 CFR 816.131 concerning temporary cessation of 
operations, which requires notification to the regulatory authority by 
the operator of any intention to temporarily cease mining for more than 
30 days.
34. CSR Sec. 38-2-14.12  Variance From Approximate Original Contour 
Requirements
    West Virginia proposes to revise paragraph (a)(6) to provide that 
the Director may grant a variance from the requirements for restoring 
the mined land in steep slope areas to approximate original contour if 
the watershed of the permit and adjacent area will be improved by 
reducing pollutants, environmental impacts, or flood hazards; provided 
that, the watershed will be deemed improved only if the amount of total 
suspended solids or other pollutants discharged to ground or surface 
water from the permit area will be reduced, or flood hazards will be 
reduced, and if changes in seasonal flow volumes from the proposed 
permit area will not adversely affect surface water ecology or any 
existing or planned use of the surface or ground water. The Director 
finds that this change satisfies the requirement at 30 CFR 948.16(ii) 
and is no less effective than 30 CFR 785.16(a)(3)(i) and (ii). 30 CFR 
948.16(ii) is hereby removed.
35. CSR 38-2-14.14  Disposal of Excess Spoil
    Subsection (e)(2) provides that the valley fills shall be designed 
to assure a long-term static safety factor of 1.5 or greater. The 
Director finds that this provision satisfies 30 CFR 948.16(jj) which 
can be removed, and is no less effective than 30 CFR 816.71(b)(2) 
concerning excess spoil. 30 CFR 948.16(jj) is hereby removed.
    Subsection (e)(10) is amended to limit the maximum grade from the 
outslope of a valley fill toward the rock core to three percent. The 
Director finds this amendment to be substantively identical to and no 
less effective than 30 CFR 816.72(b)(3) concerning slopes of valley and 
head-of-hollow fills.
36. CSR 38-2-14.15 Contemporaneous Reclamation Standards
    West Virginia has completely revised this subsection to require 
that the mining and reclamation plan for each operation describe how 
the mining and reclamation operations will be coordinated to minimize 
total land disturbance and to keep reclamation operations as 
contemporaneous as possible with the advance of mining operations. The 
revised provisions specify time, distance and acreage limits for single 
seam contour mining, single seam contour mining and auger operations, 
area mining, augering, multiple seam mining, and mountaintop removal 
operations. The proposed rules set deadlines for existing and new 
operations to comply with these requirements, and they allow the 
Director to grant variances to specific standards with proper 
justification. The Director finds these amended provisions to be 
consistent with and no less effective than 30 CFR 816.100 concerning 
contemporaneous reclamation, and the backfilling and grading 
requirements at 30 CFR 816.102. The Director notes that 30 CFR 816.101 
concerning time and distance requirements for contemporaneous 
reclamation is suspended (57 FR 33875; July 31, 1992) and cannot be 
used as a standard against which to judge the effectiveness of State 
programs. As such, the Federal regulations do not contain specific time 
and distance requirements, but only require, at 30 CFR 816.100, that 
reclamation efforts occur as contemporaneously as practicable with 
mining operations.
    Subsection (m) is amended to add provisions governing the placement 
of coal processing waste in the backfill. Under the proposed provision, 
compaction shall be in accordance with CSR 38-2-22.3(p) and shall 
achieve a 

[[Page 6526]]
minimum static safety factor of 1.3. The coal processing waste shall 
not contain acid-producing or toxic-forming material and shall be 
placed in a controlled manner to: minimize effects on surface and 
groundwater quality and quantity; ensure mass stability; ensure 
suitable reclamation and revegetation compatible with the postmining 
land use; not create a public hazard; and prevent combustion. Such 
disposal facilities must be designed using current prudent engineering 
practices and must meet any design criteria established by the 
regulatory authority. Designs must be certified by a qualified 
registered professional engineer. Any potential hazards must be 
promptly reported. The Director finds these amendments do not render 
the State program less effective than 30 CFR 816.81 (a) and (c)(1). 30 
CFR 816.81(b) does not apply because the State is not proposing to 
allow coal waste from activities located outside the permit area to be 
placed in the backfill. 30 CFR 816.81(d) does not apply because the 
coal waste will be placed in the backfill, and not in a refuse pile. 
The State has proposed a static safety factor of 1.3 which is identical 
to that required at 30 CFR 816.102(a)(3) concerning backfilling and 
grading; general standards. The 1.3 static safety factor is the 
appropriate factor to require, since the proposed provision concerns 
placing coal waste in a backfill and not in a waste pile. Finally, the 
Director notes that all the State provisions concerning the protection 
of the hydrologic balance will continue to apply. The prohibition in 
the proposed language to the placement of acid-producing and toxic-
forming material in the backfill will help assure the protection of the 
hydrologic balance.
37. CSR Sec. 38-2-14-17  Control of Fugitive Dust
    West Virginia proposes to revise this subsection to require that 
all exposed surface areas be protected and stabilized to effectively 
control erosion and air pollution attendant to erosion.
    The Director finds this revision to be substantially identical to 
and, therefore, no less effective than the Federal regulations at 30 
CFR 816.95(a).
38. CSR 38-2-14.18  Utility Installations
    WVDEP proposes to add a provision requiring that all surface mining 
operations be conducted in a manner that minimizes damage, destruction, 
or disruption of services provided by utilities. The Director finds the 
added provision to be substantially identical to and, therefore, no 
less effective than 30 CFR 816.180 concerning utility installations.
39. CSR 38-2-14-19  Disposal of Noncoal Waste
    WVDEP proposes to add provisions to regulate the disposal of 
noncoal waste such as grease, lubricants, garbage, abandoned machinery, 
lumber and other materials generated during mining activities. Under 
the proposal, final disposal of noncoal waste will be in accordance 
with a permit issued pursuant to Chapter 22, Article 15 of the Code of 
West Virginia (Solid Waste Management Act). The Director finds these 
provisions consistent with the Federal regulations at 30 CFR 816.89(b) 
which allows operators to dispose of noncoal mine waste in State-
appointed solid waste disposal areas outside of the permit area.
    The proposed provisions would also allow timber from clearing and 
grubbing operations to be wind-rowed below the projected toe of the 
outslope. The Director finds these provisions to be non inconsistent 
with the Federal regulations at 30 CFR 816.89 concerning disposal of 
noncoal mine wastes. However, the proposed windrowing is less effective 
than the Federal steep slope regulations at 30 CFR 816.107(b). 30 CFR 
816.107(b) prohibits the placement of debris, including that from 
clearing and grubbing, on the downslope in steep slope areas. 
Therefore, the Director is approving the proposed amendments except to 
the extent that windrowing would be allowed on the downslope in steep 
slope areas. In addition, the Director is requiring that West Virginia 
further amend CSR 38-2-14.19(d) to clarify that windrowing will not be 
allowed on the downslope in steep slope areas.
40. CSR 38-2-15.2  Backfilling and Regrading; Underground Mines
    The State proposes to revise paragraph (b) of this subsection to 
require that reclamation activities of an underground mine be initiated 
within 30 days of completion of underground operations. The Director 
finds the proposed amendment to be consistent with 30 CFR 817.100 
concerning contemporaneous reclamation.
41. CSR 38-2-16.2  Subsidence Control; Surface Owner Protection
    West Virginia proposes to revise paragraph (c) of this subsection 
by deleting the phrase, ``To the extent required under applicable 
provisions of State law.'' This revision is intended to correct the 
deficiency noted at 30 CFR 948.15(k)(11). The Director finds the 
proposed deletion does not render the West Virginia program less 
effective than 30 CFR 817.121(c)(2), and satisfies the deficiency noted 
at 30 CFR 948.15(k)(11).
42. CSR Sec. 38-3-17  Small Operator Assistance Program (SOAP)
    The State is making numerous changes to its SOAP provisions.
    a. Subsection 17.1 is amended to identify services fundable under 
the SOAP and to provide that the State will develop procedures for the 
interstate exchange of SOAP information. While there is no Federal 
counterpart to interstate exchanges of SOAP information, the Director 
finds these changes to be consistent with and no less effective than 30 
CFR 795.9 concerning program services and data requirements, and no 
less stringent than section 507(c)(2) of SMCRA, concerning the 
assumption of training costs.
    b. Subsection 172. is amended to clarify that requests for SOAP 
assistance must be in writing. The Director finds the amendment to be 
consistent with 30 CFR 795.7 concerning filing for assistance.
    c. Subsection 17.3 is amended to increase the production limit of 
those operators eligible for assistance under the SOAP from 100,000 to 
300,000 tons. The State is also raising, at 17.3(b)(1), the threshold 
ownership percentage for which coal production from an operation will 
be attributed to the applicant from five percent to ten percent 
interest. Finally, the State is requiring that all coal produced by 
operations owned by persons who directly or indirectly control the 
applicant by reason of direction of the management be attributed to the 
applicant. The Director finds these changes to be substantively 
identical to counterpart provisions at 30 CFR 795.6(a). In addition, 
the requirement at 30 CFR 948.16(kk) is satisfied and is hereby 
removed.
    d. Subsection 17.4 is amended to require SOAP applicants to use 
application forms and format provided by the State. While there is no 
direct Federal counterpart, the Director finds these changes to be 
consistent with 30 CFR 795.7 concerning filing for assistance.
    e. Subsection 17.5 is amended to provide that applicants be 
notified in writing of approval or denial of a SOAP application. This 
subsection is also amended to add that contractors may be used for SOAP 
assistance to qualified laboratories. The Director finds these changes 
to be consistent with and no less effective than 30 CFR 795.8(a) 
concerning application approval and 

[[Page 6527]]
notice, and 795.10(b) concerning subcontractors.
    f. Subsection 17.6 is amended to add the term SOAP contractor, and 
to provide that the laboratory or contractor must be qualified to 
perform the required determinations and statements. The Director finds 
the changes to be consistent with and no less effective than 30 CFR 
795.10 concerning qualified laboratories and subcontractors.
    g. Subsection 17.7(a)(4) and 17.7(a)(5) are amended to clarify that 
operator liability will be based on actual and attributed annual 
production for all locations of 300,000 tons during the 12-month period 
immediately following permit issuance. The Director finds this 
provision to be substantively identical to and no less effective than 
30 CFR 795.12(a)(2), concerning applicant liability.
    Subsection 17.7(b) is amended to require applicants to submit 
written statements with sufficiently demonstrate that the applicant has 
acted in good faith at all times prior to the State waiving the 
reimbursement obligation. The Director finds this provision to be 
substantively identical to 30 CFR 795.12(b).
43. CSR Sec. 38-2-18.3  Review of Decision Not to Inspect or Enforce
    Subsection 18.3(b) has been revised to provide that any person who 
is or may be adversely affected by the decision of the Director not to 
inspect or enforce may appeal such decision to the Surface Mine Board 
pursuant to Sec. 22-4-2 of the Code of West Virginia. The Director 
finds the amended language to be substantively identical to and no less 
effective than 30 CFR 842.15(d) concerning review of decision not to 
inspect or enforce.
44. CSR Sec. 38-2-20.1  Inspection Frequencies
    The State proposes to revise paragraph (a) of this subsection to 
provide that prospecting operations be inspected ``as necessary'' to 
assure compliance with the Act and these regulations. The Director 
finds the proposed language to be substantively identical to and no 
less effective than 30 CFR 840.11(c) concerning inspections by State 
regulatory authorities.
45. CSR Sec. 38.2-20.2  Notices of Violations
    Paragraph (a) of this subsection has been amended to provide that 
when the Director determines that a surface mining and reclamation 
operation or prospecting operation is in violation of any of the 
requirements of the Act, these regulations or the terms and conditions 
of the permit or prospecting approval, a notice of violation shall be 
issued. Such notice of violation shall comply with all the requirements 
and provisions of this subsection. In the past, pursuant to its Code of 
Violations, the State issued enforcement actions rather than notices of 
violation, for certain violations. This proposal will only allow the 
issuance of a notice of violation. The Director finds the added 
language no less effective than 30 CFR 843.12(a)(1) concerning notices 
of violations.
    Subparagraph (b)(3) has been amended to change the maximum initial 
abatement period from 15-days to 30-days. This change is proposed to 
render the regulations consistent with 22-3-17(o) of WVSCMRA which now 
provides for an initial abatement period of 30 days, followed by a 
maximum additional abatement period of 60 days following issuance of a 
cessation order. The Director finds the change is reasonable and does 
not render the West Virginia program less effective than 30 CFR 
843.12(b)(3) concerning abatement of violations, or less stringent than 
section 521(a)(3) of SMCRA, which allows a maximum total abatement 
period of 90 days, following issuance of a notice of violation and 
cessation order.
46. CSR Sec. 38-2-20.4  Show Cause Orders
    West Virginia proposes to revise paragraph (b) of this subsection 
by adding the phrase, ``where violations were cited.'' The proposal 
provides that the Director may determine a pattern of violations exists 
or has existed where violations were cited on two or more inspections 
of the permit area within any 12-month period. The Director finds the 
proposed change to be substantively identical to and no less effective 
than 30 CFR 843.13(a)(2) concerning pattern of violations.
47. CSR Sec. 38-2-20.5  Civil Penalty Determinations
    Paragraph (b) has been revised to provide that the Director shall, 
for ``any'' cessation order, assess a civil penalty in accordance with 
Sec. 22-3-17(a) of the WVSCMRA for each day of continuing violation, 
except that such penalty shall not be assessed for more than 30 days. 
In accordance with this change, the sentence requiring that imminent 
harm cessation orders shall have an initial assessment in accordance 
with subsection 20.7 of the regulations is deleted. The State now 
assesses all cessation orders, including imminent harm cessation 
orders, as if they were failure-to-abate cessation orders. That is, 
they are assessed a civil penalty at the rate of $750 per day, for 30 
days, beginning with the issuance date.
    The Director finds that these proposed changes return the State 
program to its former practice of assessing imminent harm cessation 
orders as failure to abate cessation orders.
    This practice was included in West Virginia's original permanent 
program submittal, which OSM approved on January 21, 1981 (46 FR 5916-
5956). However, in 1991, West Virginia proposed to change this long-
standing practice to require that imminent harm cessation orders be 
assessed according to the State's point system at CSR 38-2-20.7. The 
Director did not approve this proposed change, noting that the State 
failed to retain the requirement that civil penalties be assessed for 
cessation orders in all instances, and that violations in imminent harm 
cessation orders be assessed an additional penalty of $750 for each day 
the failure to abate continues. The Director also questioned whether 
the State has statutory authority to assess imminent harm cessation 
orders using the point system (56 FR 58306, 58307; November 19, 1991). 
Because of these deficiencies, the Director imposed a required 
amendment, which is codified at 30 CFR 948.16(ddd) (Id. at 58311). 
Within the current proposal to return to its former practice, West 
Virginia has revised CSR 38-2-20.5(b) to require the assessment of 
civil penalties for ``any'' cessation orders, in accordance with 
Sec. 22-3-17(a), which requires that failure to abate cessation orders 
be assessed at $750 per day for each day the failure to abate 
continues. As such, imminent harm cessation orders will be assessed 
penalties of $750 per day for each day a violation continues, both 
before and after the target date for abatement. Therefore, the 
reference to Sec. 22-3-17(a) satisfies the deficiency noted at 30 CFR 
948.15(m) and the requirement at 30 CFR 948.16(ddd) concerning initial 
and mandatory civil penalty assessment procedures for imminent harm 
cessation orders. 30 CFR 948.16(ddd) is hereby removed.
    The State also proposes to revise this paragraph to provide that if 
the cessation order has not been abated within the 30-day period, the 
Director shall initiate action pursuant to Sec. 22-3-17(b), (g), (h) 
and (j) of the WVSCMRA as appropriate. The term ``modified'' was 
deleted from previous language of this provision that read, ``* * * 
abated or modified within the thirty (30) day period * * *.'' The 
Director finds this revision satisfies the requirement at 30 CFR 
948.16(eee). The deletion of the word ``modified'' is consistent with 
the Federal regulations at 30 CFR 845.15(b) 

[[Page 6528]]
concerning assessment of violations. The Director also finds that the 
requirement coded at 30 CFR 948.16(fff) concerning the starting and 
ending dates for civil penalty assessments is satisfied by the 
reference to Sec. 22-3-17(a) of the WVSCMRA at CSR 38-2-20.5(b). 30 CFR 
948.16 (eee) and (fff) are hereby removed.
48. CSR Sec. 38-2-20.6  Procedures for Assessing Civil Penalties
    The State proposes to revise paragraph (d) of this subsection to 
remove the restrictions on public participation at assessment 
conferences. The proposed rule provides that any person may submit in 
writing at the time of the assessment conference a request to present 
evidence concerning the violation(s) being conferenced. Such request 
must be granted by the assessment officer. The Director finds these 
changes satisfy the deficiency codified at 30 CFR 948.15(m)(2) and the 
requirement at 948.16(ggg). 30 CFR 948.16(ggg) is hereby removed.
    Subparagraph (h) has been amended to change the citation of 
Sec. 22-3-17(d)(3) or (4), to Sec. 22-3-17(d)(1) of WVSCMRA. This 
change was made to be consistent with the changes made to Sec. 22-3-17; 
see Finding A 11, above. The Director finds the citation changes do not 
render the State program inconsistent with 30 CFR Part 845 and are 
approved.
49. CSR Sec. 38-2-20.7  Assessment Rates
    Paragraphs (a), (b) and (c) are revised to clarify that the 
monetary denomination used in the assessment of civil penalties is 
dollars. The Director finds the revisions satisfy the requirement at 30 
CFR 948.16(hhh). 30 CFR 948.16(hhh) is hereby removed.
    Paragraph (d) is revised to ensure that an operator is awarded good 
faith only where abatement is achieved before the time set for 
abatement. The Director finds these revisions satisfy the deficiency 
codified at 30 CFR 948.15(m)(2) and the requirements of 948.16(iii). 30 
CFR 948.16(iii) is hereby removed.
50. CSR Sec. 38-2-22  Coal Refuse
    a. Subsection 22.2 to require that coal refuse disposal facilities 
be designed to attain a minimum long-term static safety factor of 1.5 
and a seismic factor of safety of 1.2. The Director finds the change 
satisfies the requirements codified at 30 CFR 948.16(aaa). 30 CFR 
948.16(aaa) is hereby removed.
    b. Subsection 22.3(p) has been revised deleting the provision that 
allows coal refuse piles to be constructed with slopes exceeding two 
(2) horizontal to one (1) vertical. The Director finds this revision 
satisfies the deficiency codified at 30 CFR 948.15(l)(2) and the 
requirements of 948.16(bbb). 30 CFR 948.16(bbb) is hereby removed.
    c. Subsection 22.4(f) has been amended to provide that Class A coal 
refuse impoundments be designed for a minimum P100+0.12 (PMP-
P100) inches of rainfall in 6 hours and Class B coal refuse 
impoundments be designed for a minimum P100+0.40 (PMP-P100) 
inches of rainfall in 6 hours. The Director finds the proposed 
amendments to be consistent with and no less effective than 30 CFR 
816.84(b)(2).
    d. Subsection 22.4(g) has been amended to add the requirement that 
all impoundments meeting size or other criteria of 30 CFR 77.216(a) 
must be designed and constructed to safely pass the probable maximum 
precipitation (PMP) of a 24 hour storm event. The Director finds the 
proposed amendment to be no less effective than 30 CFR 816.84(b)(2) 
concerning the design event for coal refuse disposal impoundments 
meeting or exceeding the criteria of 30 CFR 77.216(a) with one 
exception. Rainfall data for design storms is usually obtained from the 
U.S. Weather Service. The U.S. Weather Service's document ``Rainfall 
Frequency Atlas,'' however, does not have data charts concerning PMP 
for a 24-hour storm event. Without such data the standard cannot be 
implemented. Therefore, the Director is requiring that West Virginia 
demonstrate how the State would implement the PMP 24-hour standard, or 
revise subsection 22.4(g) to require compliance with a PMP 6-hour 
standard. Data for the PMP 6-hour storm event is available from the 
U.S. Weather Service.
    e. Subsections 22.4 (g) and (h) have been revised to allow the use 
of single open channel or open channel spillways if they are of non-
erodible materials and designed to carry sustained flows or earth- or 
grass-lined and designed to carry short-term, infrequent flows at non-
erosive velocities where sustained flows are not expected. The Director 
finds these revisions satisfy the requirements at 30 CFR 948.16(mm). 30 
CFR 948.16(mm) is hereby removed.
    f. Subsection 22.5(a)(2) has been amended to provide that all coal 
refuse sites be constructed and maintained so as to attain a minimum 
long-term static safety factor of 1.5, and that structures that have 
the capacity to impound water also attain a seismic safety factor of 
1.2. The Director finds the proposed standards are consistent with the 
requirements contained in 30 CFR 948.16(aaa) and can be approved.
    g. Subsection 22.7(a) has been amended to require that inspections 
of impounding refuse piles be made regularly, but not less than 
quarterly during construction. In addition, inspections will be made 
during placement and compaction of coal refuse material and during 
critical construction periods. Subsection 22.7(c) is amended to provide 
that impoundments not meeting MSHA size or other criteria be examined 
at least quarterly. Subsection 22.7(d) is amended to provide that a 
copy of each inspection or examination report be retained at or near 
the mine site. The Director finds the proposed amendments to be 
consistent with and no less effective than 30 CFR 816.83(d) concerning 
inspections of refuse piles, 30 CFR 816.49(a)(12) concerning 
impoundment examinations, and 816.49(a)(11)(iii) concerning inspection 
reports.
51. CSR 38-2C-4  Training of Blasters
    Section 4 has been amended to add a provision that would allow 
applicants for certification or recertification to complete a self-
study course in lieu of the existing training program. Self-study 
materials would be provided the State. While there is no direct Federal 
counterpart, the Director finds the proposed language is consistent 
with 30 CFR 850.13 concerning the training of blasters.
52. CSR 38-2C-5  Examination for Certification of Examiner/Inspector 
and Certified Blaster
    Subsections 5.1 and 5.2 are amended to add that the examination for 
certified blaster will also test on information contained in the self-
study course established by Sec. 38-2C-4 as an option to completing the 
refresher training course. While there is no Federal counterpart, the 
Director finds the proposed language is not inconsistent with 30 CFR 
850.13 concerning training of blasters.
53. CSR 38-2C-8.2  Refresher Training Course/Self-study Course
    This subsection is amended to allow the completion of the self-
study course established by Sec. 38-2C-4 as an option to completing the 
refresher training course. While there is no Federal counterpart, the 
Director finds the proposed language is not inconsistent with 30 CFR 
850.13 concerning training of blasters.
54. CSR 38-2C-10.1  Violations by a Certified Blaster
    WVDEP proposes to remove language authorizing the Director to issue 
a cessation order and/or take other action as provided by the WVSCMRA 
Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA 
Sec. 22-3-1. The 

[[Page 6529]]
Director retains authority to issue a notice of violation. While the 
Federal regulations do not specifically provide for the issuance of 
either notice of violations or cessation orders against certified 
blasters, the Director finds the proposed changes are not inconsistent 
with 30 CFR 850.15(b) concerning suspension and revocation of blaster 
certification.
55. CSR 38-2C-11.1  Penalties
    This subsection is amended to authorize the issuance of an order to 
suspend a blaster's certification based on clear and convincing 
evidence of a violation, and to provide for a hearing to show cause why 
a blasters certification should not be suspended. Deleted from this 
subsection and from subsection 11.2, and Sec. 38-2C-12 are reference to 
cessation orders. The Director finds the proposed changes to be 
consistent with and no less effective than 30 CFR 850.15(b) concerning 
suspension and revocation of blaster certification.
56. CSR 38-2D-4.4  Reclamation Objectives and Priorities
    This subsection is amended to clarify its objectives and priorities 
for abandoned mine lands reclamation projects by indicating the 
provision applies to ``past'' coal mining practices which may or may 
not constitute and extreme danger. The Director finds the proposed 
change to be no less stringent than section 403(a)(2) of SMCRA 
concerning eligible lands and water.
57. CSR 38-2D-6.3(a)  Acceptance of Gifts of Land
    This section is revised to remove the requirement that the Director 
accept gifts of land in accordance with Department of Justice 
procedures for the acquisition of real property. The Director finds the 
deletion does not render the West Virginia program less effective than 
30 CFR 879.13 concerning acceptance of gifts of land.
58. CSR 38-2D-8.7  Grant Application Procedures
    This section is amended to remove provisions which describe 
procedures for completing and submitting a grant application to OSM for 
the reclamation of abandoned mine lands. The Director finds the 
proposed deletions do not render the West Virginia program less 
effective than the grant application procedures at 30 CFR 886.15 which 
contain no counterparts to the deleted language.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for public hearings on the proposed amendment on three separate 
occasions. Public hearings were held on September 7, 1993, October 27, 
1994, and May 30, 1995, (Administrative Record Nos. WV-906, WV-958, and 
WV-983). OSM has published final rule notices on the provisions 
concerning bonding and the provisions concerning durable rock fills. 
Therefore, comments relating to those provisions will not be discussed 
here.
    Following is a summary of the substantive comments. Comments 
voicing general support or opposition to the proposed amendment but 
devoid of any specific issues are not discussed. The summarized 
comments and responses are organized by subject. All comments and 
responses have been adjusted to reflect the nomenclature of the May 16, 
1995, version of the regulations.

Amendment Review Process

    A commenter asserted that OSM has predetermined the proposed State 
amendments in the Federal Register notice dated August 12, 1993 (58 FR 
42903). Specifically, the commenter stated that OSM referred to a 
``satisfaction in part of a federal referenced regulation'' (see 
proposed regulation changes #19, 20, 33, 35, 37, 50, and 53 in the 
August 12, 1993 notice). Such statements by OSM, the commenter 
asserted, indicate that a decision has already been made and that the 
changes will not be objectively considered by OSM. In response, the 
Director believes that the commenter has misunderstood OSM's intention. 
Under 30 CFR 732.17(h)(2)(i), OSM is required to inform the public of 
proposed changes to State regulatory programs, and to publish the text 
or a summary of the proposed State program amendments. As part of that 
notification, OSM also identifies those proposed amendments that are 
related to program deficiencies that are codified in the Federal 
regulations at 30 CFR 948.16 concerning required program amendments. 
This is done to draw the public's attention to the fact that the State 
is addressing program deficiencies. Sometimes, proposed amendments 
appear to address only part of the requirements codified at 30 CFR 
948.16. In those cases, OSM often states that the proposed amendment is 
intended to satisfy a portion of the requirements of a specific 
paragraph codified at 30 CFR 948.16. In no way does such a statement by 
OSM mean, or imply, that OSM has predetermined whether or not the 
proposed amendment is approvable by OSM.

No Federal Counterpart Provisions

    Some commenters made the assertion that in situations where there 
are no Federal counterparts to the proposed State provisions that the 
proposed provisions should not be of concern to OSM. In response, the 
Director notes that, under 30 CFR 732.17, the State must submit and OSM 
must review changes to approved State programs. In those cases where 
there are no direct Federal counterparts to the proposed State 
provisions, OSM will make a determination, under 30 CFR 732.15 (a) and 
(c), of whether or not the State provisions are in accordance with 
SMCRA and consistent with the Federal regulations, and that the 
proposed State provisions would not interfere with or preclude 
implementation of SMCRA or the Federal regulations.

Statutes

    Sec. 22-3-13(b)(10)  Performance standards: The commenter stated 
that the charge to avoid acid or toxic mine drainage implies that you 
have to avoid it at all costs, and that you can't have any alternative. 
In response, the Director notes the provision is substantively 
identical to section 515(b)(10)(A) of SMCRA (see Finding A9).
    Sec. 22-3-19  Permit renewal and revision: A commenter stated that 
the proposed renewal fee is required only when the operator is going to 
continue active mining. Also, that a fee is not required for any 
reclamation work, including regrading and certainly not needed for the 
grass to grow. In response, the Director notes that under the proposed 
rules at CSR 38-2-3.27(a), the WVDEP may waive, under specified 
conditions, the requirements for permit renewal if coal removal is 
completed. Therefore, the $2000 filing fee may not affect permittees 
with only reclamation to be done.
    Sec. 22-3-19(a)(2)  Permit renewal and revision: The commenter 
stated that the amended statute remains more than a bit fuzzy as to 
whether or not the additional land area will be subject to the 
procedural requirements of a new permit, i.e., public notice, review 
and comment. The Director disagrees. The proposed language and the 
State's June 16, 1994 (WV-923) clarification letter, both clearly state 
that new areas being added to a permit at renewal will be subject to 
the full permitting requirements of the West Virginia program, 
including public review, notice, and comment.

[[Page 6530]]

    Sec. 22-3-28  Special reclamation permits: The commenter said that 
this section should be removed from the State program even though the 
State has expressed interest in leaving it in the State program in the 
event that OSM will, in the future, approve such special permits. In 
response, the Director is not acting on this provision, at this time, 
because the State has not made any substantive changes to this section. 
The State will be notified via the 30 CFR part 732 process that the 
provisions are inconsistent with SMCRA and should be removed.

Rules

Rulemaking Authority
    A commenter stated that some of the proposed rules exceed the 
authority granted to the Division under WV Code Sec. 22-3-11(a) to the 
extent that they attempt to amend 38 CSR Secs. 14.8 (steep slope 
mining) and 14.15 (backfilling and regrading). The commenter stated 
that the legislation that authorized the Division to promulgate the 
site-specific bonding regulations provided for a special exception from 
the normal rulemaking procedure (allowing the Division to proceed to 
final adoption without submission to the Legislature) specifically for 
the purpose of implementing a new bonding system, and not for any other 
amendments. In response, the Director notes that the West Virginia 
statutes at Sec. 22-3-2 and Sec. 22-3-13(d) authorize the director of 
the division of environmental protection to promulgate, administer and 
enforce rules pursuant to the West Virginia Surface Coal Mining and 
Reclamation Act. The rules the commenter referred to (CSR 38-2-14.8 and 
14.15) were promulgated as legislative rules, and were approved by the 
State legislature. See Findings B32 and B36 above for the Director's 
findings on those amended rules.
General
    CSR 38-2-1.2  Applicability: The commenter stated that this 
provision should not have retroactive application. See Section V, 
Director's Decision, below, for a complete explanation of the 
Director's retroactive approval.
Definitions
    CSR 38-2-2.20  Chemical treatment: Commenters are concerned that 
this definition, which separates passive treatment from the definition, 
will lead to problems related to bond release. The specific concern is 
that if bond release is authorized in cases where passive treatment 
system (e.g., limestone drains) are maintaining water quality 
standards, then the risk is high that water quality will degrade after 
bond release as the passive treatment systems lose effectiveness. 
Another commenter said that there is no Federal counterpart and it 
should be approved. This commenter said that the definition of 
``chemical treatment'' applies to all facets of the regulations, not 
just to bond release. The Director has approved the definition of 
``chemical treatment'' except to the extent that the definition would 
allow bond release where passive treatment systems are used to achieve 
compliance with applicable effluent standards (see Finding B-2a above). 
Although OSM encourages the use of passive treatment systems as an 
integral part of surface mining and reclamation operations, the 
effectiveness and reliability of such passive systems to control 
pollutional discharges on a long-term basis has not been proven to the 
extent that they can be considered an effective basis for bond release.
Permits
    CSR 38-2-3.7  Excess spoil: The commenters object to the removal of 
the authority to approve alternative design requirements for excess 
spoil fills. The commenter stated that identical regulations have been 
approved in the Virginia program at 480-03-19-816.73. In response, the 
Director notes that the Virginia provision was approved because it 
specifies criteria that such alternative designs must meet. Such 
criteria are not present in the West Virginia rule, and the Director 
did not approve the rule.
    CSR 38-2-3.12  Subsidence control plan: One commenter expressed 
concern as to whether or not State law is still a consideration on the 
obligation to support the surface (from subsidence) under CSR 38-2-
16.2. Another commenter stated that nothing in State SMCRA has changed 
to provide authority for removing the State law limitation found in the 
State regulation. In response, the Director notes that the deletion of 
the reference to state law is intended to clarify that the requirements 
of CSR 38-2-16.2 are not to be diminished by other State law. The 
amended State language is a response to the amendments made to Federal 
SMCRA by the Energy Policy Act of 1992. The Energy Policy Act added new 
section 720 to SMCRA to provide for the repair or compensation for 
material damage caused by subsidence, and the replacement of drinking, 
domestic, or residential water supplies damaged by underground coal 
mining operations. The Federal regulations implementing section 720 of 
SMCRA were published in the Federal Register on March 31, 1995 (60 FR 
16722-16751). Neither section 720 of SMCRA nor the implementing 
regulations defer to State law concerning the requirements to repair or 
compensate for subsidence-caused material damage to dwellings and 
related structures or the replacement of water supplies damaged by 
underground coal mining operations.
    CSR 38-2-3.14  Removal of abandoned coal waste piles: The commenter 
apparently disagrees with the proposed provision concerning the need 
for a permit if the coal waste material can be classified as coal using 
the BTU standard in ASTM D 388-88. In response, the Director notes that 
if a mined deposit is coal, a permit is required. Section 506 of SMCRA 
requires a permit if coal mining operations are to be conducted. The 
Federal regulations at 701.5 define surface mining activities to 
include the recovery of coal from deposits not in their original 
geologic location, which would include the reprocessing of abandoned 
waste piles.
    CSR 38-2-3.27  Permit renewals: The commenter disagrees with the 
proposed language that allows the State to waive the requirements for 
permit renewal only where all coal extraction is completed and all 
backfilling and regrading will be completed within 60 days prior to the 
expiration date of the permit. The commenter states that Federal law 
only requires a permit in order to ``mine'' and does not require that 
reclamation be permitted. In response, the Director notes that the 
proposed State provision is consistent with and is a reasonable 
interpretation of the Federal requirements at 30 CFR 773.11(a) 
concerning the requirements to obtain permits. See Finding B.14 above 
for the Director's approval of this provision.
    CSR 38-2-3.28  Permit revisions: The commenter disagrees with the 
amendments that would allow the State to determine if an updated 
probable hydrologic consequences (PHC) determination is necessary, or 
if other permit revisions are necessary. In response, the Director 
notes that the State requirements concerning the PHC are consistent 
with the Federal requirements at 30 CFR 780.21(f)(4). The State 
provision concerning reasonable revisions is consistent with the 
Federal requirements at 30 CFR 774.11(b) concerning review of permits.
    CSR 38-2-3.28  Permit revisions: The commenter stated that new 
provisions cannot be applied retroactively. See Section V, Director's 
Decision, below, for a complete explanation of the Director's 
retroactive approval.

[[Page 6531]]

    CSR 38-2-3.29  Incidental boundary revisions (IBR's): The commenter 
stated that it should be mandatory for the State to require an 
advertisement and a ten day public comment period for any IBR greater 
than 50 acres in size that might be granted pursuant to the waiver 
provision at the end of CSR 38-2-3.29(b)(2). The Director does not 
agree. A requirement to advertise in all such cases would eliminate the 
possibility of the regulatory authority exercising reasonable 
discretion in the conduct of its responsibilities. Also, neither SMCRA 
nor the Federal regulations require notice or comment on proposed 
IBR's. The approved State program does, however, provide for appeals of 
decisions by the regulatory authority under CSR 38-2-18.
    CSR 38-2-3.34(b) and (g) Improvidently issued permits: The 
commenter disagrees with these amendments and stated that the 
provisions appear to be for the purpose of covering agency mistakes, 
with no regard for the coal operator. The Director disagrees. As noted 
in Finding B21, above, the proposed changes are consistent with the 
language and intent of the Federal regulations at 30 CFR 773.20 
concerning improvidently issued permits and 773.15 concerning review of 
permit applications.
Roads
    CSR 38-2-4  Haulageways or Access Roads: The commenter said there 
is no Federal requirement in this area. The Director disagrees. The 
counterpart Federal provisions are at 30 CFR 816.150 concerning roads; 
general, and 816.151 concerning primary roads.
    CSR 38-2-4.4  Infrequently used access roads: The commenter 
disagrees with the need for the proposed language. The commenter stated 
that the key to the requirements for infrequently used access roads is 
use and frequency of use. Unless the road is used frequently, the 
operator should not be required to spend large sums of money on 
extensive plans, pipes, drains and other costly items. In response, the 
Director notes that a road's impact on the environment is only partly 
derived from the use of the road. The degree of alteration of the 
natural land configuration of the road itself can be the greater source 
of environmental harm. The proposed rules are designed to minimize 
those impacts.
Drainage and Sediment Control
    CSR 38-2-5.5  Permanent impoundments: The commenter stated that 
permanent impoundments should be encouraged, not restricted. In 
response, the Director notes that the provisions concerning the 
retention of permanent impoundments both authorize the retention of 
such impoundments and ensure sound future maintenance.
Blasting
    CSR 38-2-6.3(a) Public notice of blasting operations: The commenter 
stated that all natural gas pipelines should be included within the 
definition of ``public utilities'' at subsection 6.3(a) and be notified 
of the blasting schedule. Without such notice, the commenter stated, 
the opportunity for significant input on the specifics of the blasting 
plan may be lost without written notice at the permit stage. As 
discussed in Finding B26b, above, the proposed State language is 
substantively identical to and, therefore, no less effective than the 
Federal regulations at 30 CFR 817.64(a). The Director agrees that such 
notice would be valuable, however, and encourages the commenter to 
discuss this matter with the regulatory authority.
Insurance and Bonding
    CSR 38-2-11.1  Insurance: The commenter stated that the amendment 
is unclear and that it seems as though blasting liability continues 
after blasting is continued. The Director disagrees. The State language 
clearly states that insurance coverage for blasting damage may be 
terminated prior to final bond release, but not before blasting 
activities have ceased. The provision also requires that even though 
blasting coverage may be terminated, the full amount of the liability 
coverage (from subsection 11.1(a)) shall continue throughout the life 
of the permit (or renewal).
Notice of Intent To Prospect
    CSR 38-2-13.6(a)(7), (f)(6) Prospecting roads: The commenter 
recommended that the proposed language not be approved. There is no 
Federal counterpart for prospecting roads, the commenter asserted, and 
the proposed requirements would be expensive and not cost effective for 
such roads which are often infrequently used. In response, the Director 
notes that requirements for prospecting roads are intended to be 
counterparts to the Federal requirements for roads at 30 CFR 816.150, 
and as noted in Finding B30, above, the amendments are approved. 30 CFR 
815.15(b) concerning coal exploration standards requires the 
application of 816.150(b) through (f) for coal exploration which causes 
substantial disturbance.
Performance Standards
    CSR 38-2-14.5(h)  Waiver of water supply replacement: The commenter 
stated that no waivers of water supply should be allowed because they 
would be inconsistent with the Energy Policy Act of 1992. In response, 
and as discussed above in Finding B31, above, the Director has 
determined that the proposed language is not inconsistent with SMCRA 
and the Federal regulations except to the extent that the proposed 
waiver would not be implemented in accordance with the definition of 
``Replacement of water supply'' at 30 CFR 701.5. In addition, the 
Director is requiring that the West Virginia program be further amended 
to clarify that under CSR 38-2-14.5(h), the replacement of water supply 
can only be waived under the conditions set forth in the definition of 
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
    CSR 38-2-14.8  Steep slope mining: A commenter stated that the 
downslope prohibition (in 14.8(a)(1)) seems to be a new condition and 
does not take into consideration the unusual geologic conditions of the 
southern West Virginia coal fields. In response, the Director notes 
that, as discussed above in Finding B32, the amendment is intended to 
prevent the placement of spoil on natural intervening slopes in steep 
slope operations. The amendment renders the State provision 
substantively identical to 30 CFR 816.107(b)(1), which prohibits spoil 
placement on the downslope.
    A commenter suggested that, to improve clarity of the new language 
at CSR 38-2-14.8(a)(1), the phrase ``multiple seam operations'' be 
amended to read ``multiple seam contour operations.'' The Director 
notes that, while the change would improve clarity, contour mining is 
logically implied by the amendments and the State need not be required 
to revise the language.
    A commenter also stated disagreement with the prohibition at CSR 
38-2-14.8(a)(4) concerning placement of woody material in the backfill. 
The commenter asserted that when done right, such placement does not 
cause stabilization problems. In response, the Director notes that the 
proposed language is substantively identical to the Federal regulations 
at 30 CFR 816.107(d). The State language does allow the placement of 
woody materials in the fill if the regulatory authority first 
determines that the method of placement of woody material will not 
deteriorate the future stability of the backfilled area.
    CSR 38-2-14.15  Contemporaneous reclamation standards: The 
commenter 

[[Page 6532]]
made numerous comments and provided recommended language concerning 
these provisions. While the comments and recommendations may have 
merit, the commenter is not asserting that any of the proposals are 
inconsistent with SMCRA or the Federal regulations. Since the Director 
need only decide whether amendments are in accordance with SMCRA and 
the Federal regulations, he will not require the State to add language 
to its program if it is not needed to bring the program into compliance 
with Federal law and regulations. As noted in Finding B36, above, the 
Director has determined that the State's proposed language is 
consistent with the Federal regulations at 30 CFR 816.100 concerning 
contemporaneous reclamation standards and can be approved (see Finding 
B36, above).
    CSR 38-2-14.19(d)  Disposal of noncoal mine wastes: The commenter 
recommended that OSM disapprove the proposal to allow the wind-rowing 
of timber below the toe of the outslope. The commenter stated that OSM 
has disapproved this practice in the past and should do so once again. 
As explained above in Finding B39, the Director is approving the 
proposed amendments except to the extent that the amendments would 
allow wind-rowing on the downslope in steep slope areas. Such wind-
rowing in steep slope areas would be less effective than 30 CFR 
816.107(b)(3).
Subsidence Control
    CSR 38-2-16.2(c)(2)  Subsidence control; surface owner protection: 
The conmenter stated that deletion of the phrase ``To the extent 
required under applicable provisions of State law'' should not have 
been proposed because court decisions negate the validity of the 
disapproval of that phrase and the disapproval at 30 CFR 948.15(k)(11). 
In response, the Director notes that the Energy Policy Act of 1992 
amended SMCRA at new section 720 to require the repair or compensation 
for subsidence-caused material damage to certain structures. The new 
SMCRA provision does not provide for a deference to State law.
Inspection and Enforcement
    CSR 38-2-20.6  Procedure for assessing civil penalty: Two 
commenters stated that this section should be modified to ensure that 
it is clear that citizens with information and interests which support 
a coal operation or operator should be equally free to participate in 
assessment conferences as are citizens who are opposed. The Director 
disagrees that the State language is unclear. The State provision 
clearly states that ``[a]ny person, other than the operator and 
Division of Environmental Protection representives, may submit in 
writing at the time of the conference a request to present evidence 
concerning the violation(s) being conferenced.'' Clearly, the provision 
does not state that the evidence must be either in support of or 
against the violation(s) being conferenced. The commenters also 
questioned why ``any'' person could participate in the conference, and 
stated that the Division of Environmental Protection should have the 
discretion of allowing those they feel are genuinely affected by the 
proceeding to attend, not just anybody or everybody who might petition. 
In response, the Director notes that subsection CSR 38-2-20.6(e) 
provides that the conference assessment officer shall consider all 
relevant information on the violation(s). Therefore, the assessment 
officer has some discretion to determine what information is relevant 
to the violation(s) being conferenced.
    CSR 38-2-22  Coal Refuse: The commenter stated that this section 
should be amended to clarify that the coal refuse regulations do not 
apply to coal refuse placed in the backfill, but only to isolated and 
distinct structures designed solely or primarily for coal refuse 
disposal. The Director partially agrees. 30 CFR 816.81 concerning coal 
mine waste general requirements, provides that all coal mine waste 
disposed of in an area other than the mine workings or excavations 
shall be placed in new or existing disposal areas within the permit 
area. The regulations at 30 CFR 816.83 provide the standards for coal 
mine waste refuse piles, with particular emphasis on stability and 
drainage control. Coal mine waste that is placed in the backfill, 
however, presents potential acidity and toxicity problems that must be 
addressed just as those problems must be addressed if the coal waste is 
placed in a separate structure. The State has addressed those potential 
problems in its rules concerning coal refuse in the backfill at CSR 38-
2-14.15(m) (see Finding B36, above). In designing those regulations, 
the State used applicable standards from 30 CFR 816.81 concerning coal 
mine waste. In approving the proposed State provisions, OSM compared 
them to applicable parts of 30 CFR 816.81 as the primary standards for 
preventing the formation of acidity and toxicity.
    CSR 38-2-22.4(f)  Design storm specifications: The commenter 
supports the proposed changes and stated that those changes bring the 
State standards in line with Federal standards. In response, the 
Director notes that as explained in Finding B50c, above, the proposed 
amendments are approved except to the extent that the new standards 
apply to impoundments that meet the size or other criteria of 30 CFR 
77.216(a). 30 CFR 816.84(b)(2) provides that impoundments that meet the 
size or other criteria of 77.216(a) must be designed for a probable 
maximum precipitation (PMP) of a six-hour or greater precipitation 
event.
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 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.
    The Mine Safety and Health Administration (MSHA) commented that CSR 
38-2-14.15(m) concerning coal processing waste disposal, and CSR 38-2-
14.19(d) concerning disposal of non-coal waste may be less restrictive 
than MSHA's requirements. For example, MSHA stated that MSHA's minimum 
design criteria for refuse piles (30 CFR 77.214 and 77.215) have 
provisions requiring the placement of clay over any exposed coal beds 
before constructing a refuse pile, and also prohibit the placement of 
any extraneous combustible materials in a refuse pile. In response, the 
Director notes that the State rules at CSR 38-2-14.15(m) provide that 
where approval for placing coal processing waste in the backfill has 
been granted, such placement shall be done in accordance with the 
compaction requirements of CSR 38-2-22.3(p). CSR 38-2-22.3(p) requires 
MSHA approval of any alternate construction plans for refuse piles in 
compacted layers exceeding two feet in thickness. In addition, the 
proposed language provides that the coal processing waste will not 
contain acid-producing or toxic-forming material. Also, CSR 38-2-
14.19(c) provide that noncoal mine waste shall not be deposited in a 
refuse pile or impounding structure, nor shall an excavation for a 
noncoal mine waste disposal site be located within eight feet of any 
coal outcrop or coal storage area. In addition, under both of these 
rules, 

[[Page 6533]]
the coal processing waste would be placed in the backfill, a location 
from which the coal has already been removed. Finally, nothing in CSR 
38-2-14.15(m) or 14.19 excuses the operator from compliance with 
applicable MSHA requirements. The Director recognizes the applicability 
of 30 CFR 77.214 and 77.215 to refuse piles.
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), and June 29, 1995 (Administrative Record No. WV-999) OSM 
solicited EPA's concurrence on the proposed amendments. On October 17, 
1994 (Administrative Record No. WV-949), EPA gave its written 
concurrence with a condition on subsection 5.4(b)(2) of West Virginia's 
regulations. Subsection CSR 38-2-5.4(b)(2) is not being amended, and is 
not, therefore, a subject of this rulemaking. EPA also submitted 
comments concerning various State provisions that are not being 
amended. Since the provisions are not being amended, EPA's comments 
will not be addressed here.
    EPA also responded by letter dated January 31, 1996, with its 
concurrence with the proposed amendments (Administrative Record No. WV-
1019). In that letter, EPA provided comments in support of CSR 38-2-
14.15(m) concerning the prohibition of acidic coal processing waste 
being placed in backfills, and Sec. 22B-3-4(c) concerning variances to 
water quality standards for coal remaining operations.

V. Director's Decision

    Based on the above findings, and except as noted below, the 
Director is approving with certain exceptions and additional 
requirements the proposed amendments as submitted by West Virginia on 
June 28, 1993, as modified on July 30, 1993; August 18, 1994; September 
1, 1994; and May 16, 1995. As discussed in the findings, there are some 
exceptions to this approval, and those are noted below. The Director is 
also requiring the State to make additional changes to certain 
provisions to ensure that the program is no less stringent than SMCRA 
and no less effective than the Federal regulations. Those requirements 
are also noted below.
    At Sec. 22-3-13(e)--The authorization to promulgate rules that 
permit variances from approximate original contour is approved to the 
extent that it only applies to steep slope areas as defined at WVSCMRA 
Sec. 22-3-13(d). The Director is requiring that West Virginia amend its 
program to limit such variances to industrial, commercial, residential, 
or public alternative postmining land use, in accordance with section 
515(e)(2) of SMCRA.
    At Sec. 22B-1-7(d)--The authorization to allow temporary relief 
where the appellant demonstrates that the executed decision appealed 
from will result in the appellant suffering an ``unjust hardship'' is 
not approved. The Director is requiring that West Virginia further 
amend Sec. 22B-1-7(d) to be consistent with SMCRA sections 514(d) and 
525(c).
    At Sec. 22B-1-7(h)--The authorization that would allow the Surface 
Mining Board to consider economic feasibility of treating or 
controlling discharges from surface coal mining operations in appeals 
from decisions of an order, permit, or official action is not approved. 
The Director is requiring that West Virginia further amend Sec. 22B-1-
7(h) to be no less stringent than SMCRA section 515(b)(10) and no less 
effective than the Federal regulations at 30 CFR 816.42, by requiring 
discharges to be controlled or treated without regard to economic 
feasibility.
    At CSR 38-2-1.2(c)(1)--The termination of jurisdiction over an 
initial program site except to the extent that subsection (c)(1) does 
not require compliance with the Federal initial program regulations at 
Subchapter B or to the West Virginia permanent program as a 
prerequisite to the termination of jurisdiction. The Director is 
requiring that the State further amend subsection (c)(1) to require 
compliance with the Federal initial program regulations at Subchapter B 
or the West Virginia permanent regulatory program rules as a 
prerequisite to the termination of jurisdiction over an initial program 
site.
    At CSR 38-2-2.92--The definition of ``chemical treatment'' except 
to the extent that the definition of ``chemical treatment'' would allow 
bond release where passive treatment systems are used to achieve 
compliance with applicable effluent limitations. The Director is 
requiring that West Virginia further amend the West Virginia program to 
clarify that bond may not be released where passive treatment systems 
are used to achieve compliance with applicable effluent limitations.
    At CSR 38-2-3.1(o)--The grouping of ownership and control 
information is approved to the extend that all permit applicants which 
maintain centralized ownership and control files are also required to 
comply with all of the informational provisions contained in CSR 38-2-
3.1.
    At CSR 38-2-4.2(b)--Is approved to the extent that the provisions 
pertain to all roads, whether they are within or crossing a stream.
    At CSR 38-2-4.4--Is approved except to the extent that it exempts 
infrequently used access roads from the requirements of subsection 4.9. 
The Director is also requiring the State to amend its program to 
require that all infrequently used access roads comply with CSR 38-2-
4.9.
    At CSR 38-2-4.11--Is approved to the extent that the provision does 
not exclude facilities that are included within the definition of 
``surface coal mining operations'' at 30 CFR 700.5.
    At CSR 38-2-14.5(h)--Is approved except to the extent that the 
proposed waiver would not be implemented in accordance with the 
definition of ``Replacement of water supply'' at 30 CFR 710.5. The 
Director is requiring that West Virginia further amend CSR 38-2-14.5(h) 
and amend Sec. 22-3-24(b) to clarify that the replacement of water 
supply can only be waived under the conditions set forth in the 
definition of ``Replacement of water supply,'' paragraph (b), at 30 CFR 
701.5.
    At CSR 38-2-14.19--Is not approved to the extent that windrowing 
would be allowed on the downslope in steep slope areas. In addition, 
the Director is requiring that West Virginia further amend CSR 38-2-
14.19(d) to clarify that windrowing will not be allowed on the 
downslope in steep slope areas.
    At CSR 38-2-22.4(g)--The Director is requiring that West Virginia 
demonstrate how the State would implement the PMP 24-hour standard, or 
revise subsection 22.4(g) to require compliance with a PMP 6-hour 
standard.
    The Director is amending 30 CFR Part 948 to codify this decision. 
With respect to those changes in State laws and regulations approved in 
this document, the Director is making the effective date of this 
approval retroactive to the date upon which they took effect in West 
Virginia for purposes of State law. He is taking this action in 
recognition of the extraordinarily complex nature of the review and 
approval process for this amendment and the need to affirm the validity 
of State actions taken during the interval between State implementation 
and the decision being announced today. Retroactive approval of these 
provisions is in keeping with the purposes of SMCRA relating to State 
primacy and environmental protection.

[[Page 6534]]

    To assure consistency with 30 CFR 732.17(g), which state that 
``[no] * * * change to laws or regulations shall take effect for 
purposes of a State Program until approved as an amendment,'' The 
Director's approval of the revisions, as noted in the codification 
below, includes West Virginia's previous and ongoing implementation of 
these revisions.
    Retroactive approval of the revisions is appropriate because no 
detrimental reliance on the previous West Virginia laws or regulations 
has occurred for the period involved. OSM is approving these changes 
back only to the dates from which West Virginia began enforcing them. 
As support for this decision, the Director cites the rationale employed 
by the United States Claims Court in McLean Hosp. Corp. v. United 
States, 26 Cl.Ct. 1144 (1992). In McLean, the court held that 
retroactive application of a rule was appropriate where the rule was 
identical in substance to guidelines which had been in effect anyway 
during the period in question. Therefore, the Court concluded, the 
plaintiff could not ``claim that it relied to its detriment on a 
contrary rule.'' 26 Cl.Ct. at 1148. Likewise, since the Director is 
approving changes which the State has been enforcing there can be no 
claim of detrimental reliance on any contrary West Virginia Statutes or 
regulations in this instance.
    Making portions of the approval retroactive does not require 
reopening of the public comment period under section 553(b)(3) of the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3). The public, in 
general, and the coal industry in particular have had sufficient notice 
of these revised statutory and regulatory revisions to support 
retroactive OSM approval. Retroactive approval constitutes an 
acknowledgement of statutory and regulatory revisions which West 
Virginia has been implementing since the respective approval dates of 
these revisions at the State level, and would have been expected as a 
natural outgrowth of the proposal. The retroactive approval does not 
apply to earlier versions of these provisions to the extent that such 
provisions were inconsistent with Federal requirements.
    Furthermore, ``good cause'' both under section 553(b)(3)(B) of the 
APA, 5 U.S.C. 553(b)(3)(B), for retroactive approval (if notice were 
not sufficient) and under section 553(d)(3) of APA, 5 U.S.C. 553(d)(3), 
for not delaying the effective date of the approval for 30 days after 
the publication of this Federal Register decision document. As noted in 
the findings above, many of these program revisions are needed to 
render the West Virginia program consistent with SMCRA and no less 
effective than the Federal regulations.
    Failure to make OSM approval of these statutory and regulatory 
provisions retroactive could cause significant disruption to the 
orderly enforcement and administration by the State of the West 
Virginia program. The Director believes that the desire to avoid a 
significant disruption of the West Virginia program, coupled with the 
lack of any prejudice to the public or to the regulated community, are 
sufficient bases to constitute ``good cause.''

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State submits and obtains the 
Secretary's approval of a regulatory program. Similarly, 30 CFR 
732.17(a) requires that the State submit any alteration of an approved 
State program to OSM for review as a program amendment. Thus, any 
changes to the state program are not enforceable until approved by OSM. 
The Federal regulations at 30 CFR 732.17(g) prohibit any unilateral 
changes to approved State programs. In oversight of the West Virginia 
program, the Director will recognize only the statutes, regulations and 
other materials approved by OSM, together with any consistent 
implementing policies, directives and other materials, and will require 
the enforcement by West Virginia of only such provisions. The 
provisions that the Director is approving today will take effect on the 
specified dates for purposes of the West Virginia program.

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: February 8, 1996.
Allen D. Klein,
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:

[[Page 6535]]


PART 948--WEST VIRGINIA

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

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


Sec. 948.12  [Amended]

    2. Section 948.12 is amended by removing and reserving paragraphs 
(a), (c), (d), (g) and (h).


Sec. 948.13  [Amended]

    3. Section 948.13 is amended by removing and reserving paragraphs 
(a), (b), (e) and (f).
    4. Section 948.15 is amended by adding paragraph (p) to read:


Sec. 948.15  Approval of regulatory program amendments.

* * * * *
    (p)(1) General description and effective dates. Except as noted in 
paragraph (p)(3) of this section, the amendment submitted by West 
Virginia to OSM by letter dated June 28, 1993, as revised by submittals 
dated July 30, 1993; August 18, 1994; September 1, 1994; and May 16, 
1995, is approved to the extent set forth in paragraph (p)(2) of this 
section. The effective dates of the Director's approval of the 
provisions identified in paragraph (p)(2) of this section are:
    (i) July 1, 1990, for those statutory amendments contained in HB-
202;
    (ii) June 7, 1991, for those amendments contained in SB-579;
    (iii) October 16, 1991, for those amendments contained in HB-217;
    (iv) July 1, 1994, for those amendments contained in HB-4030;
    (v) June 11, 1994, for those amendments contained in HB-4065;
    (vi) February 10, 1995, for those amendments contained in SB-250;
    (vii) March 10, 1995, for those amendments contained in HB-2134;
    (viii) June 9, 1995, for those amendments contained in SB-287 and 
HB-2523;
    (ix) May 2, 1993, for those rule changes submitted on June 28, 1993 
(WV-889);
    (x) June 1, 1991, for those changes submitted on July 30, 1993 (WV-
893) which were not identified as changes in the June 28, 1993, 
submittal (WV-889);
    (xi) June 1, 1994, for those rule changes submitted on September 1, 
1994 (WV-937);
    (xii) May 1, 1995, for those blaster certification revisions 
submitted on May 8, 1995 (WV-979);
    (xiii) June 1, 1995, for those abandoned mine land revisions 
submitted May 8, 1995 (WV-979);
    (xiv) June 1, 1995, for all remaining changes submitted on May 16, 
1995 (WV-979).
    (2) Approved revisions. Except as noted in paragraph (p)(3) of this 
section, the following provisions of the amendment described in 
paragraph (p)(1) of this section are approved:

(i) Revisions to the West Virginia Surface Coal Mining and 
Reclamation Act

1. Sec. 22-1-4 through 8--Division of Environmental Protection.
2. Sec. 22-2--Abandoned Mine Lands and Reclamation Act.
3. Sec. 22-3-3--Definitions.
4. Sec. 22-3-5--Surface Mining Inspectors and Supervisors.
5. Sec. 22-3-7--Notice of Intent to Prospect.
6. Sec. 22-3-8--Surface Mining Reclamation Permit.
7. Sec. 22-3-9--Permit Application Requirements.
8. Sec. 22-3-9a--Permit to Mine Two Acres or Less. [Deleted]
9. Sec. 22-3-13--Performance Standards to the extent that subsection 
13(e) only applies to steep slope areas as defined in Sec. 22-3-
13(d).
10. Sec. 22-3-15--Inspections.
11. Sec. 22-3-17--Notice of Violation.
12. Sec. 22-3-18--Permit Approval.
13. Sec. 22-3-19--Permit Renewal and Revision Requirements.
14. Sec. 22-3-22--Designation of Areas Unsuitable for Mining.
15. Sec. 22-3-26--Surface Mining Operations Not Subject to the Act.
16. Sec. 22-3-28--Special Permits for Abandoned Coal Waste Piles.
17. Sec. 22-3-40--National Pollutant Discharge Elimination System 
(NPDES).
18. Sec. 22B-1-4 through 12--Environmental Boards; General Policy 
and Purpose, except language at Sec. 22B-1-7(d) which allows 
temporary relief where the appellant demonstrates that the executed 
decision appealed from will result in the appellant suffering an 
``unjust hardship'' and except language at Sec. 22B-1-7(h) which 
allows the Surface Mining Board to consider economic feasibility of 
treating or controlling discharges from surface coal mining 
operations in appeals from decisions of an order, permit, or 
official action.
19. Sec. 22B-3-4--Environmental Quality Board.
20. Sec. 22B-4--Surface mine board.

(ii) Revisions to the West Virginia Surface Mining Reclamation 
Regulations

    1. CSR Sec. 38-2-1.2--Applicability; except subsection 1.2(c)(1) 
to the extent that it does not require compliance with the Federal 
initial program regulations at Subchapter B or the West Virginia 
permanent regulatory program as a prerequisite to the termination of 
jurisdiction over an initial program site.
    2. CSR 38-2-2--Definitions; except to the extent that the 
definition of ``chemical treatment'' at CSR 38-2-2.20 would be 
applied in the context of section CSR 38-2-12.2(e) to authorize bond 
release for sites with discharges that require passive treatment to 
meet discharge standards.
    3. CSR Sec. 38-2-3.1(o)--Application information to the extent 
that all permit applicants which maintain centralized ownership and 
control files are also required to comply with all of the 
informational provisions contained in CSR 38-2-3.1.
    4. CSR Sec. 38-2-3.4--Maps.
    5. CSR Sec. 38-2-3.6--Operation Plan.
    6. CSR Sec. 38-2-3.7--Excess Spoil.
    7. CSR Sec. 38-2-3.8--New and Existing Structures and Support 
Facilities.
    8. CSR Sec. 38-2-3.12--Subsidence Control Plan.
    9. CSR Sec. 38-2-3.14--Removal of Abandoned Coal Waste Piles.
    10. CSR Sec. 38-2-3.15--Approved Person.
    11. CSR Sec. 38-2-3.16--Fish and Wildlife Resources.
    12. CSR Sec. 38-2-3.25--Transfer, Assignment or Sale of Permit 
Rights.
    13. CSR Sec. 38-2-3.26--Ownership and Control Changes.
    14. CSR Sec. 38-2-3.27(a)--Permit Renewals and Permit 
Extensions.
    15. CSR Sec. 38-2-3.28--Permit Revisions.
    16. CSR Sec. 38-2-3.29--Incidental Boundary Revisions (IBRs).
    17. CSR Sec. 38-2-30--Variances.
    18. CSR Sec. 38-2-3.31(a)--Exemption for Government Financed 
Highway or Other Construction.
    19. CSR Sec. 38-2-3.32--Permit Findings.
    20. CSR Sec. 38-2-3.33--Permit Conditions.
    21. CSR Sec. 38-2-3.34--Improvidently Issued Permits.
    22. CSR Sec. 38-2-4--Haulageways, Roads, and Access Roads:
    22a. CSR Sec. 38-2-4.1(a)--Road Classification system;
    22b. CSR Sec. 38-2-4.2--Plans and Specifications; except CSR 38-
2-4.2(b) is approved to the extent that the provisions pertain to 
all roads, whether they are within or crossing a stream;
    22c. CSR Sec. 38-2-4.3--Existing Haulageways or Access Roads;
    22d. CSR Sec. 38-2-4.4--Infrequently Used Access Roads; except 
CSR 38-2-4.4 is approved except to the extent that it exempts 
infrequently used access roads from the requirements of subsection 
4.9;
    22e. CSR Sec. 38-2-4.5--Construction;
    22f. CSR Sec. 38-2-4.6--Drainage Design;
    22g. CSR Sec. 38-2-4.7--Performance Standards;
    22h. CSR Sec. 38-2-4.8--Maintenance;
    22i. CSR Sec. 38-2-4.9--Reclamation;
    22j. CSR Sec. 38-2-4.10--Primary Roads;
    22k. CSR Sec. 38-2-4.11--Support Facilities and Transportation 
Facilities except to the extent that the provision does not exclude 
facilities that are included within the definition of ``surface coal 
mining operations'' at 30 CFR 700.5.
    22l. CSR Sec. 38-2-4.12--Certification.
    23. CSR Sec. 38-2-5.2--Intermittent or Perennial Streams.
    24. CSR Sec. 38-2-5.4--Sediment Control.
    25. CSR Sec. 38-2-5.5--Permanent Impoundments.
    26. CSR Sec. 38-2-6--Blasting;
    26a. CSR Sec. 38-2-6.3(b)--Public Notice of Blasting Operations;
    26b. CSR Sec. 38-2-6.6--Blasting Control for Other Structures;
    26c. CSR Sec. 38-2-6.8--Preblast Survey.
    27. CSR Sec. 38-2-8.1--Protection of Fish and Wildlife and 
Related Values.
    28. CSR Sec. 38-2-9--Revegetation.
    
[[Page 6536]]

    29. CSR Sec. 38-2-11.1--Insurance.
    30. CSR Sec. 38-2-13--Notice of Intent to Prospect.
    31. CSR Sec. 38-2-14.5--Hydrologic Balance except to the extent 
that the proposed waiver at subsection (h) would not be implemented 
in accordance with the definition of ``Replacement of water supply'' 
at 30 CFR 701.5.
    32. CSR Sec. 38-2-14.8--Steep Slope Mining.
    33. CSR Sec. 38-2-14.11--Inactive Status.
    34. CSR Sec. 38-2-14.12--Variance From Approximate Original 
Contour Requirements.
    35. CSR Sec. 38-2-14.14--Disposal of Excess Spoil.
    36. CSR Sec. 38-2-14.15--Contemporaneous Reclamation Standards.
    37. CSR Sec. 38-2-14.17--Control of Fugitive Dust.
    38. CSR Sec. 38-2-14.18--Utility Installations.
    39. CSR Sec. 38-2-14.19--Disposal of Noncoal Waste is not 
approved to the extent that windrowing would be allowed on the 
downslope in steep slope areas.
    40. CSR Sec. 38-2-15.2--Backfilling and Regrading; Underground 
Mines.
    41. CSR Sec. 38-2-16.2--Subsidence Control; Surface Owner 
Protection.
    42. CSR Sec. 38-2-17--Small Operator Assistance Program (SOAP).
    43. CSR Sec. 38-2-18.3--Review of Decision Not to Inspect or 
Enforce.
    44. CSR Sec. 38-2-20.1--Inspection Frequencies.
    45. CSR Sec. 38-2-20.2--Notices of Violations.
    46. CSR Sec. 38-2-20.4--Show Cause Orders.
    47. CSR Sec. 38-2-20.5--Civil Penalty Determinations.
    48. CSR Sec. 38-2-20.6--Procedures for Assessing Civil 
Penalties.
    49. CSR Sec. 38-2-20.7--Assessment Rates.
    50. CSR Sec. 38-2-22--Coal Refuse.
    51. CSR Sec. 38-2C-4--Training of Blasters.
    52. CSR Sec. 38-2C-5--Examination for Certification of Examiner/
Inspector and Certified Blaster.
    53. CSR Sec. 38-2C-8.2--Refresher Training Course/Self-study 
Course.
    54. CSR Sec. 38-2C-10.1--Violations by a Certified Blaster.
    55. CSR Sec. 38-2C-11.1--Penalties.
    56. CSR Sec. 38-2D-4.4(b) Reclamation Objectives and Priorities.
    57. CSR Sec. 38-2D-6.3(a) Acceptance of Gifts of Land.
    58. CSR Sec. 38-2D-8.7(a) Grant Application Procedures.

    (3) Exceptions.
    (i) Sec. 22-3-13--Performance Standards is not approved to the 
extent that subsection 13(e) applies to areas other than steep slope 
areas as defined in Sec. 22-3-13(d).
    (ii) Sec. 22B-1-4 through 12--Environmental Boards; General Policy 
and Purpose: Language at Sec. 22B-1-7(d) which allows temporary relief 
where the appellant demonstrates that the executed decision appealed 
from will result in the appellant suffering an ``unjust hardship'' is 
not approved; and language at Sec. 22B-1-7(h) which allows the Surface 
Mining Board to consider economic feasibility of treating or 
controlling discharges from surface coal mining operations in appeals 
from decisions of an order, permit, or official action is not approved.
    (iii) CSR Sec. 38-2-1.2(c)(1) concerning termination of 
jurisdiction over an initial program site is approved except to the 
extent that subsection (c)(1) does not require compliance with the 
Federal initial program regulations at Subchapter B or to the West 
Virginia permanent program as a prerequisite to the termination of 
jurisdiction.
    (iv) CSR Sec. 38-2-2.20 concerning the definition of ``chemical 
treatment'' is not approved to the extent that the definition would be 
applied in the context of section CSR 38-2-12.2(e) to authorize bond 
release for sites with discharges that require passive treatment to 
meet discharge standards.
    (v) CSR Sec. 38-2-4.4 is not approved to the extent that it exempts 
infrequently used access roads from the requirements of subsection 4.9.
    (vi) CSR Sec. 38-2-4.11 is not approved to the extent that the 
provision excludes facilities that are included within the definition 
of ``surface coal mining operations'' at 30 CFR 700.5.
    (vii) CSR Sec. 38-2-14.5(h) is not approved to the extent that the 
proposed waiver at subsection (h) would not be implemented in 
accordance with the definition of ``Replacement of water supply'' at 30 
CFR 710.5.
    (viii) CSR Sec. 38-2-14.19 is not approved to the extent that 
windrowing would be allowed on the downslope in steep slope areas.
    5. Section 948.16 is amended by removing and reserving paragraphs 
(c), (f), (i), (j), (l), (n), (q), (s), (t), (v), (w), (x), (aa), (cc), 
(hh), (ii), (jj), (kk), (mm), (nn), (pp), (qq), (rr), (ss), (uu), (vv), 
and (yy) through (iii); revising paragraph (xx); and adding paragraphs 
(mmm) through (uuu), reading as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (xx) By August 1, 1996, West Virginia shall submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise subsection CSR 38-2-
14.8(a) to specify design requirements for constructed outcrop barriers 
that will be the equivalent of natural barriers and will assure the 
protection of water quality and insure the long-term stability of the 
backfill.
* * * * *
    (mmm) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise Sec. 22-3-13(e) to 
limit the authorization for a variance from approximate original 
contour to industrial, commercial, residential, or public alternative 
postmining land use, in accordance with section 515(e)(2) of SMCRA.
    (nnn) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise Sec. 22B-1-7(d) to be 
consistent with SMCRA sections 514(d) and 525(c).
    (ooo) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise Sec. 22B-1-7(h) to be 
no less stringent than SMCRA section 515(b)(10) and no less effective 
than the Federal regulations at 30 CFR 816.42, by requiring discharges 
to be controlled or treated without regard to economic feasibility.
    (ppp) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise CSR Sec. 38-2-
1.2(c)(1) to require compliance with the Federal initial program 
regulations at Subchapter B or the West Virginia permanent program 
regulations as a prerequisite to the termination of jurisdiction over 
an initial program site.
    (qqq) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise CSR Sec. 38-2-2.20, 
or otherwise amend the West Virginia program to clarify that bond may 
not be released where passive treatment systems are used to achieve 
compliance with applicable effluent limitations.
    (rrr) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise CSR Sec. 38-2-4.4 to 
require that all infrequently used access roads comply with CSR 38-2-
4.9.
    (sss) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise CSR Sec. 38-2-14.5(h) 
and Sec. 22-3-24(b) to clarify that the replacement of water supply can 
only be waived under the conditions set forth in the definition of 
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.

[[Page 6537]]

    (ttt) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise CSR Sec. 38-2-
14.19(d) to clarify that windrowing will not be allowed on the 
downslope in steep slope areas.
    (uuu) By August 1, 1996, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise subsection 22.4(g) to 
require compliance with a PMP 6-hour standard, or demonstrate how the 
State would implement the PMP 24-hour standard at CSR 38-2-22.4(g).
    6. Section 948.26 is amended by removing the text and reserving the 
heading as follows:


Sec. 948.26   Required abandoned mine land reclamation program/plan 
amendments. [Reserved]

[FR Doc. 96-3413 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M