[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38382-38388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18610]


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DEPARTMENT OF THE INTERIOR
30 CFR Part 948

[WV-075-FOR]


West Virginia Permanent 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 announcing the approval, with certain exceptions, of

[[Page 38383]]

amendments to the West Virginia permanent regulatory program 
(hereinafter referred to as the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA Act). The 
amendments concern revisions to the West Virginia Surface Mining 
Reclamation Regulations. The amendments are intended to improve the 
clarity and effectiveness of the West Virginia program, and to revise 
the State program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: July 24, 1996.

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, West Virginia 25301. Telephone: (304) 347-
7158.

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. Background information on the West 
Virginia program, including the Secretary's findings, the disposition 
of comments, and the conditions of the approval can be found in the 
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent 
actions concerning the West Virginia program and previous amendments 
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated April 2, 1996 (Administrative Record Number WV-
1024), the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to its approved permanent regulatory program 
pursuant to 30 CFR 732.17. The amendment contains revisions to the West 
Virginia Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et 
seq.).
    The proposed amendment was published in the April 23, 1996, Federal 
Register (61 FR 17859), and in the same notice, OSM opened the public 
comment period and provided opportunity for a public hearing on the 
adequacy of the proposed amendment. The comment period closed on May 
23, 1996.
    The last time the State regulations were significantly revised was 
on February 21, 1996. The Director partially approved the revisions in 
the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR 
948.15 for the provisions partially approved, and 30 CFR 948.16 for the 
required amendments.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the West Virginia program.
    1. Sec. 38-2-2.106 Definition of ``Safety factor.'' This definition 
is revised to mean the ratio of the sum of the resisting forces to the 
sum of the loading or driving forces as determined by acceptable 
engineering practices. Prior to this change, the term was defined as 
the ratio of the sum of the resisting forces to the sum of the loading 
forces in a constructed valley fill, backfill, dam, or refuse pile. The 
Director finds the term as revised to be substantively identical to and 
no less effective than one of the two options contained in the 
counterpart Federal definition at 30 CFR 701.5
    2. Sec. 38-2-3.2(e) Readvertisement of permit applications. This 
provision is amended by adding the phrase, ``that do not significantly 
affect the health, safety or welfare of the public and,'' to the first 
sentence. With this change, a limited number of minor changes may be 
grouped and readvertised if the changes do not significantly affect the 
health, safety or welfare of the public and do not significantly affect 
the method of operation, the reclamation plan, and/or the original 
advertisement. This notice is in addition to the original advertisement 
requirement of one advertisement per week, for four successive weeks. 
The Director finds the added language does not render the provision 
less effective than the Federal regulations at 30 CFR 773.13 concerning 
public participation in permit processing.
    3. Sec. 38-2-3.6(h)(5) Certification of drainage/sediment control 
structure designs. This provision is amended by changing a cited 
reference concerning dams. ``Article 5D of Chapter 20'' is deleted and 
replaced by ``Article 14 of Chapter 22.'' The Director finds that the 
citation change does not render the provision less effective than the 
Federal regulations at 30 CFR 780.25(a) concerning preparation and 
certification of plans.
    4. Sec. 38-2-3.8(c) Revision or reconstruction of existing 
structures and support facilities. This provision is amended by adding 
the following language: ``Provided, that those [existing] structures 
and facilities, where it can be demonstrated that reconstruction or 
revision would result in greater environmental harm and the performance 
standards set forth in the Act and these regulations can otherwise be 
met, may be exempt from revision or construction.'' This amendment, in 
effect, provides an alternative to requiring revision or reconstruction 
of structures or support facilities in cases where greater 
environmental harm would result from the revisions or reconstruction.
    The Federal regulations at 30 CFR 701.11(e)(1), provide for a 
similar exemption. Such exemptions to design requirements for existing 
structures can be granted as part of the permit application process 
after obtaining the information required by the State counterparts to 
30 CFR 780.12 or 784.12 and after making the findings required in the 
State counterparts to 30 CFR 773.15. Proposed subsection 3.8(c) does 
not refer to these State counterparts. However, since these 
counterparts are, indeed, part of the State's program (see Sec. 38-2-
3.8(b), 3.32(d)(6)), cross-references to those provisions in subsection 
3.8(c) are unnecessary.
    The Federal regulations at 30 CFR 701.11(e)(2) provide that such 
exemptions shall not apply to (a) the requirements for existing and new 
coal mine waste disposal facilities; and (b) the requirements to 
restore the approximate original contour of the land. The West Virginia 
program, however, lacks a counterpart to these Federal limitations 
concerning the applicability of the proposed exemption.
    The Director is approving the amendments to CSR 38-2-3.8(c). In 
addition, the Director is requiring that West Virginia further amend 
the West Virginia program to be consistent with 30 CFR 701.11(e)(2) by 
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to 1) 
the requirements for new and existing coal mine waste disposal 
facilities; and 2) the requirements to restore the land to approximate 
original contour.
    5. Sec. 38-2-3.27 Permit renewals and extensions. The introductory 
paragraph of this provision is amended by deleting the word ``may'' and 
adding in its place the word ``shall.'' In addition, language has been 
deleted that required all backfilling and grading be completed within 
60 days prior to the expiration date of the permit, and that an 
application for Phase I bond release be filed prior to the expiration 
date of the

[[Page 38384]]

permit. As amended, the provision provides that the Director of the 
WVDEP shall waive the requirements for renewal if the permittee 
certifies in writing that all coal extraction is completed, that all 
backfilling and regrading will be completed and reclamation activities 
are ongoing. The Director finds that the proposed provision is 
substantively identical to and no less effective than the Federal 
regulations at 30 CFR 773.11, which provides that an operator does not 
have to renew a permit to conduct reclamation activities.
    6. Sec. 38-2-4.4 Infrequently used access roads. This provision is 
revised by deleting and adding rule citations. As amended, infrequently 
used access roads may not be exempt from the requirements of Secs. 38-
2-4.2, 4.7(a), 4.8, 4.9, and 5.3. The Director finds the changes to be 
consistent with the Federal regulations at 30 CFR 816/817.150. In 
addition, the amendments satisfy the required program amendments 
codified at 30 CFR 948.16(rr). 30 CFR 948.16(rrr) required that West 
Virginia revise Sec. 38-2-4.4 to require that all infrequently used 
access roads comply with Sec. 38-2-4.9. Since this required amendment 
has been satisfied, it is hereby removed.
    7. Sec. 38-2-4.12 Certification of primary roads. This provision is 
amended by deleting the requirement that changes documented in the as-
built plans be submitted to the Director of WVDEP as a permit revision. 
In its place, the following language is added: ``If as-built plans are 
submitted, the certification shall describe how and to what extent the 
construction deviates from the proposed design, and shall explain how 
and certify that the road will meet performance standards.'' In effect, 
these amendments replaces a requirement that all changes documented as 
as-built plans be submitted as a permit revision, with a requirement 
that when such changes are submitted, the submittal shall include an 
explanation of the changes, and a certification that the changes will 
meet performance standards
    The Director finds that the deletion of the requirement to submit 
as-built plans to the Director of the WVDEP renders the amendment 
provision less effective than the Federal regulations at 30 CFR 
774.11(c) concerning regulatory review of permits. In effect, the 
automatic acceptance of certified as-built plans removes the regulatory 
authority from its responsibility under 30 CFR 774.11(c) which requires 
a finding for even minor permit revisions. This finding by the 
regulatory authority must address all program requirements, not just 
performance standards.
    Therefore, the Director is approving the proposed changes, except 
to the extent that the Director of the WVDEP is removed from the 
responsibility of reviewing permit revisions (such as as-built plans 
changes) as is required under 30 CFR 774.11(c). In addition, the 
Director is requiring that the State further amend CSR 38-2-4.12 to 
reinstate the following deleted language: ``and submitted for approval 
to the Director as a permit revision.''
    8. Sec. 38-2-5.4(c) Safety standards for embankment type 
structures. The first paragraph of this provision is amended by 
deleting the phrase ``which may include slurry impoundments.'' With 
this amendment, the provision's safety standards apply to all 
embankment type sediment control or other water retention structures. 
The Director finds that the removal of the reference to slurry 
impoundments renders the States provision unclear as to its application 
to slurry impoundments. If, the provision does not apply to slurry 
impoundments (which appears to be the purpose of the deletion), the 
provision is rendered less effective than the Federal regulations at 30 
CFR 816/817.49 and cannot be approved. Therefore, the Director is 
approving the provision except to the extent that the provision does 
not apply to slurry impoundments. In addition, the Director is 
requiring that the State further amend the West Virginia program by 
clarifying that the requirements at CSR 38-2-5.4(c) also apply to 
slurry impoundments. The Director notes that this can be accomplished 
either by reinstating the deleted language or be replacing the term 
``water retention structure'' with the term ``impoundment.''
    9. Sec. 38-2-11.6(a) Review of permits for adequacy of bond. This 
provision is amended to relocate the site-specific bonding requirements 
applicable to all four categories of mining at the time of permit 
renewal or mid-term review, whichever occurs first. These requirements 
also do not allow a permit to be renewed until the appropriate amount 
of bond has been posted. However, the Director finds the proposed 
revision, which is merely for organizational purposes, is not 
inconsistent with the Federal bonding requirements at 30 CFR 800.13 and 
30 CFR 774.15(c).
    10. Sec. 38-2-11.6(c)(6), (d)(6), (e)(5), (f)(5) Bond reduction 
credits. These provisions are being amended to delete, in various 
places, the phrase ``within five (5) years of the date of SMA 
approval.'' In effect, activities for which a permittee may receive 
bond reduction credits are no longer required to be performed within 
five years from the date of SMA approval. The Director finds that, 
although there are no direct Federal counterparts, the proposed 
provisions would have no significant financial impacts and, therefore, 
would not adversely affect the findings that formed the basis for the 
Secretary's approval of the alternative bonding system pursuant to 30 
CFR 800.11(e).
    11. Sec. 38-2-12.2(e) Bond release--chemical treatment. The 
existing language of this provision is deleted and replaced by the 
following:
    Notwithstanding any other provisions of this rule, no bond release 
or reduction will be granted if, at the time, water discharged from or 
affected by the operation requires chemical treatment in order to 
comply with applicable effluent limitations or water quality standards; 
Provided, that the Director may approve a request for Phase I but not 
Phase II or III, release if the applicant demonstrates to the 
satisfaction of the Director that either:
    (A) The remaining bond is adequate to assure long term treatment of 
the drainage; or
    (B) The operator has irrevocably committed other financial 
resources which are adequate to assure long term treatment of the 
drainage; Provided, that the alternate financial resources must be in 
acceptable form, and meet the standards set forth in Section 11 of the 
Act and Section 11 of these regulations; provided, however, that the 
alternate financial arrangements shall provide a mechanism whereby the 
Director can assume management of the resources and treatment work in 
the event that the operator defaults for any reason; and provided 
further, that default on a treatment obligation under this paragraph 
shall be considered equivalent to a bond forfeiture, and the operator 
will be subject to penalties and sanctions, including permit blocking, 
as if a bond forfeiture had occurred.
    In order to make such demonstration as referenced above, the 
applicant shall address, at a minimum, the current and projected 
quantity and quality of drainage to be treated, the anticipated 
duration of treatment, the estimated capital and operating cost of the 
treatment facility, and the calculations which demonstrate the adequacy 
of the remaining bond or of the alternate financial resources.
    In effect, the added language would allow, under the specified 
circumstances, Phase I bond release on operations which require 
chemical treatment in order to comply with applicable effluent 
limitations or water quality standards.

[[Page 38385]]

    The Director notes that the State's definition of ``chemical 
treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM. 
Specifically, the language of the definition that excludes passive 
treatment systems from being considered ``chemical treatment'' was not 
approved to the extent that such passive treatment systems would be 
applied in the context of Sec. 38-2-12.2(e) to authorize bond release 
for sites with discharges that require passive treatment to meet 
discharge standards. For a complete explanation of the partial 
disapproval of the State's definition of ``chemical treatment,'' see 
Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511) at 
page 6517.
    The proposed language concerning incremental bond release could be 
implemented in a manner that is no less effective than the Federal 
requirements at 30 CFR 800.40(c) concerning bond release. The proposed 
language provides that the bond remaining after Phase I release, or the 
other financial resources committed to the treatment, must be adequate 
to assure long-term treatment of this discharge. In addition, the new 
language provides that the other financial resources committed to long-
term treatment must be irrevocably committed, and the currently 
approved bonding requirements continue to apply. Finally, while these 
new provisions will provide bond monies for long-term treatment, they 
in no way eliminate the currently approved provisions that provide for 
adequate bond monies to assure completion of the approved reclamation 
plan (for example, to assure revegetation).
    Therefore, the Director is approving the proposed revisions at CSR 
38-2-12.2(e) to the extent that passive treatment, where it is 
implemented to achieve compliance with effluent limitations or water 
quality standards, is chemical treatment under the West Virginia 
program definition of chemical treatment at CFR 38-2-2.20.
    12. Sec. 38-2-14.3(c) Topsoil substitutes. The Director is 
deferring action on this proposed amendment because it was 
inadvertently omitted from the proposed rule notice published on April 
23, 1996 (61 FR 17859) that announced the changes submitted by the 
State and requested public comment. The Director will provide 
opportunity for public comment on this change in the near future by 
notice in the Federal Register.
    13. Sec. 38-2-14.14(e)(4) Valley fills--rock core chimney drains. 
This provision is being amended by deleting the third sentence, which 
concerns the control of surface water runoff, and replacing that 
language with the following:
    Surface water runoff from areas above and adjacent to the fill 
shall be diverted into properly designed and constructed stabilized 
diversion channels which have been designed using best current 
technology to safely pass the peak runoff from a 100 year, 24-hour 
precipitation event. The channel shall be designed and constructed to 
ensure stability of the fill, control erosion, and minimize water 
infiltration into the fill.
    The Federal regulations prohibit uncontrolled flow onto excess 
spoil fills and require that diversion channels be constructed off the 
fills. OSM's technical committee agreed that such diversions could be 
constructed on durable rock fills, but it never addressed their use on 
valley fills. (See the August 16, 1995, Federal Register (60 FR 42437) 
for a discussion of OSM's approval of West Virginia's recently revised 
provisions concerning durable rock fills.) Given the differences in the 
construction techniques of the two types of fills, OSM cannot say with 
any confidence that the proposal, which would allow the construction of 
diversions on valley fills, its environmentally sound. The State needs 
to submit scientific evidence to OSM demonstrating that the proposed 
method of construction will not harm the long-term integrity of valley 
fills. A technical evaluation of this issue must occur before OSM can 
find the proposed State requirements at subsection 14.14(e)(4) to be no 
less effective than 30 CFR 816/817.72(a)(2). Therefore, the Director is 
not approving the proposed amendments at this time. Since this 
requirement is to take effect on July 1, 1996, OSM requests that its 
implementation be delayed and the WVDEP continue to require that runoff 
be diverted around valley fills until the study can be completed and a 
final determination is rendered by OSM.
    14. Sec. 38-2-14.15(m) Coal processing waste disposal. This 
provision is being amended by deleting the prohibition at 14.15(m)(1) 
that coal processing waste ``will not contain acid producing or toxic 
forming material.'' A new provision at 14.15(m)(2) is added to provide 
as follows:

    (2) The coal processing waste will not be placed in the backfill 
unless it has been demonstrated to the satisfaction of the Director 
that: (A) the coal processing waste to be placed based upon 
laboratory testing (sic) to be non-toxic and/or non-acid producing; 
or (B) an adequate handling plan including alkaline additives has 
been developed and the material after alkaline addition is non-toxic 
and/or non-acid producing.

    The Director finds, that in accordance with 30 CFR 816/817.102(e), 
except for the requirements concerning disposal, foundation 
investigations, and emergency procedures, the proposed language is 
consistent with and no less effective than the Federal regulations at 
30 CFR 816/817.81 concerning coal mine waste. The Director is approving 
this amendment only to the extent that, with the disposal of coal 
processing waste in the backfill, the backfill will not exceed the 
approximate original contour (AOC). If AOC is exceeded, then the 
disposal of coal processing waste in the backfill must comply with the 
West Virginia program counterparts to 30 CFR 816/817.83 concerning coal 
mine waste--refuse piles. In addition, the Director is requiring that 
the State further amend the West Virginia program to require compliance 
with 30 CFR 816/817.81 (b), (d), and (e) regarding coal refuse 
disposal, foundation investigations and emergency procedures and to 
clarify that where the coal processing waste proposed to be placed in 
the backfill contains acid- or toxic-producing materials, such material 
must not be buried or stored in proximity to any drainage course such 
as springs and seeps, must be protected from groundwater by the 
appropriate use of rock drains under the backfill and along the 
highwall, and be protected from water infiltration into the backfill by 
the use of appropriate methods such as diversion drains for surface 
runoff or encapsulation with clay or other material of low 
permeability. That is, such acid- or toxic-producing materials must be 
hydraulically separated from any groundwater and from water 
infiltration into the backfill.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), on 
May 1, 1996, comments were solicited from various interested Federal 
agencies (Administrative Record Number WV-1030). The U.S. Army Corps of 
Engineers responded that they found the amendments to be satisfactory. 
The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) responded with several comments. However, non of the comments 
MSHA submitted pertain to the provisions that are being amended by the 
State. Therefore, those comments will not be discussed in this notice.

[[Page 38386]]

Public Comments

    A public comment period and opportunity to request a public hearing 
was announced in the April 23, 1996, Federal Register (61 FR 17859). 
The comment period closed on May 23, 1996. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held. The West Virginia Mining and Reclamation Association and the 
West Virginia Coal Association responded and urged approval of the 
amendments. No other public comments were received.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State 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 Clear Air Act (42 U.S.C. 7401 et 
seq.). On May 1, 1996, the Director requested EPA's concurrence and 
comments (Administrative Record Numbers WV-1029, 1030).
    EPA responded on June 27, 1996 (Administrative Record No. WV-1037) 
and commented on two provisions. Concerning CSR 38-2-12.2(e), EPA 
conditionally concurred, and stated that the proposed revision for 
allowing bond release could result in a situation where less funds 
would be available for long term treatment unless three critical areas 
are addressed: (1)An accurate determination of the effectiveness, 
duration, and long term costs of treatment must be made to avoid 
underestimating abatement needs; (2) An assurance that the alternate 
financial resources, which are described by the proposed revision, will 
be irrevocably committed (such as in a trust fund, dedicated escrow 
account, or other similar manner) to assure its availability for 
treatment in case of bankruptcy; and (3) Assurance that the bond monies 
set aside for long term water treatment are in addition to the bond 
monies needed to assure the completion of the reclamation plan (such as 
for revegetation).
    In response, the Director acknowledges the EPA's concerns, but 
believes that these results are not likely to occur. The proposed 
language provides that the bond remaining after Phase I release, or the 
other financial resources committed to the treatment, must be adequate 
to assure long term treatment of the discharge. In addition, the new 
language provides that the other financial resources committed to long 
term treatment must be irrevocably committed, and the currently 
approved bonding requirements continue to apply. Finally, while these 
new provisions will provide bond monies for long term treatment, they 
in no way eliminate the currently approved provisions that provide for 
adequate bond monies to assure completion of the approved reclamation 
plan (for example, to assure revegetation). Therefore, the Director is 
approving the provisions.
    The EPA commented that the revisions at CSR 38-2-14.15(m) could 
result in acid seepage unless the approved handling plans include 
diversion drains for surface runoff, refuse encapsulation with clay or 
other material of low permeability, and rock drains under the backfill 
and along the highwall, to intercept and convey groundwater away from 
the refuse. As discussed above in Finding 14, the Director agrees and 
is requiring that the State further amend the West Virginia program to 
clarify that where the coal processing waste proposed to be placed in 
the backfill contains acid- or toxic-producing materials, such material 
must not be buried or stored in proximity to any drainage course such 
as springs and seeps, must be protected from groundwater by the 
appropriate use of rock drains under the backfill and along the 
highwall, and be protected from water infiltration into the backfill by 
the use of appropriate methods such as diversion drains for surface 
runoff, encapsulation with clay or other material of low permeability. 
That is, such acid- or toxic-producing materials must be hydraulically 
separated from any groundwater and from water infiltration into the 
backfill.

V. Director's Decision

    Based on the findings above, the Director is approving the 
amendment submitted by West Virginia on April 2, 1996, except as noted 
below.
    The Director is requiring that WVDEP further amend the West 
Virginia program to be consistent with 30 CFR 701.11(e)(2) by 
clarifying that the exemption at CSR 38-2-3.8(c) does not apply to (1) 
the requirements for new and existing coal mine waste disposal 
facilities; and (2) the requirements to restore the land to approximate 
original contour.
    The amendments at CSR 38-2-4.4 satisfy the required program 
amendment codified at 30 CFR 948.16(rrr), which is hereby removed.
    CSR 38-2-4.12 is approved except to the extent that the Director of 
the WVDEP is removed from its responsibility (under 30 CFR 774.11(c)) 
of reviewing permit revisions (such as reviewing as-built plans 
changes). In addition, the Director is requiring that the State further 
amend CSR 38-2-4.12 to reinstate the following deleted language: ``and 
submitted for approval to the Director as a permit revision.''
    CSR 38-2-5.4(c) is approved except to the extent that the provision 
does not apply to slurry impoundments. In addition, the Director is 
requiring that the State further amend the West Virginia program by 
clarifying that the requirements at CSR 38-2-5.4(c) also apply to 
slurry impoundments.
    CSR 38-2-12.2(e) is approved to the extent that passive treatment, 
where it is implemented to achieve compliance with effluent limitations 
or water quality standards is chemical treatment under the West 
Virginia program definition of chemical treatment at CFR 38-2-2.20.
    Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring 
action on this proposed amendment because it was inadvertently omitted 
from the proposed rule notice published on April 23, 1996 (61 FR 17859) 
that announced the changes submitted by the State.
    CSR 38-2-14.14(e)(4) which would allow drainage to be diverted onto 
valley fills is not approved and its implementation is to be delayed 
pending the submission and approval of scientific evidence showing that 
the proposed construction of diversions on valley fills will not 
adversely affect their long-term stability.
    CSR 38-2-14.15(m) is approved only to the extent that, with the 
disposal of coal processing waste in the backfill, the backfill will 
not exceed the approximate original contour (AOC). If AOC is exceeded, 
then the disposal of coal processing waste in the backfill must comply 
with the West Virginia program counterparts to 30 CFR 816.83 concerning 
coal processing waste--refuse piles. In addition, the Director is 
requiring that the State further amend the West Virginia program to 
require compliance with the State counterparts to 30 CFR 816/817.81 
(b), (d) and (e) regarding disposal, foundation investigations and 
emergency procedures and to clarify that where the coal processing 
waste proposed to be placed in the backfill contains acid-or toxic-
producing materials, such material must not be buried or stored in 
proximity to any drainage course such as springs and seeps, must be 
protected from groundwater by the appropriate use of rock drains under 
the backfill and along the highwall, and be protected from water 
infiltration into the backfill by the use of appropriate methods such 
as diversion drains for surface runoff or encapsulation with clay or 
other

[[Page 38387]]

material of low permeability. That is, such acid- or toxic-producing 
materials must be hydraulically separated from any groundwater and from 
water infiltration into the backfill.
    The Federal regulations at 30 CFR Part 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted 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 his 
oversight of the West Virginia program, the Director will recognize 
only the statutes, regulations and other materials approved by him, 
together with any consistent implementing policies, directives and 
other materials, and will require the enforcement by West Virginia of 
only such provisions.

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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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 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.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 10, 1996.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.

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

PART 948--WEST VIRGINIA

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

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

    2. In Section 948.15, paragraph (q) is added to read as follows:


Sec. 948.15  Approval of regulatory program amendments.

* * * * *
    (q) The amendment to the West Virginia program concerning changes 
to the West Virginia regulations as submitted to OSM on April 2, 1996, 
is approved effective July 24, 1996 except as noted below:

    CSR 38-2-4.12 is approved except to the extent that the Director 
of the WVDEP is removed from the responsibility (as is required by 
30 CFR 774.11(c)) of reviewing permit revisions (such as reviewing 
as-built plans changes).
    CSR 38-2-5.4(c) is approved except to the extent that the 
provision does not apply to slurry impoundments.
    CSR 38-2-12.2(e) is approved to the extent that passive 
treatment, where it is implemented to achieve compliance with 
effluent limitations or water quality standards is chemical 
treatment under the West Virginia program definition of chemical 
treatment at CFR 38-2-2.20.
    Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring 
action on this proposed amendment because it was inadvertently 
omitted from the proposed rule notice published on April 23, 1996 
(61 FR 17859) that announced the changes submitted by the State.
    CSR 38-2-14.14(e)(4) which would allow drainage to be diverted 
onto valley fills is not approved.
    CSR 38-2-14.15(m) is approved to the extent that, with the 
disposal of coal processing waste in the backfill, the backfill will 
not exceed the approximate original contour (AOC). If AOC is 
exceeded, then the disposal of coal processing waste--refuse piles.

    3. Section 948.16 is amended by removing and reserving paragraph 
(rrr), and adding paragraph (vvv) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (vvv) By January 15, 1997, 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 the West Virginia 
program as follows:
    (1) Amend the West Virginia program to be consistent with 30 CFR 
701.11(e)(2) by clarifying that the exemption at CSR 38-2-3.8(c) does 
not apply to (1) the requirements for new and existing coal mine waste 
disposal facilities; and (2) the requirements to

[[Page 38388]]

restore the land to approximate original contour.
    (2) Amend CSR 38-2-4.12 to reinstate the following deleted 
language: ``and submitted for approval to the Director as a permit 
revision.''
    (3) Amend the West Virginia program by clarifying that the 
requirements at CSR 38-2-5.4(c) also apply to slurry impoundments.
    (4) Amend CSR 38-2-14.15(m), or otherwise amend the West Virginia 
program to require compliance with 30 CFR 816/817.81 (b), (d), and (e) 
regarding coal refuse disposal, foundation investigations and emergency 
procedures and to clarify that where the coal processing waste proposed 
to be placed in the backfill contains acid- or toxic-producing 
materials, such material must not be buried or stored in proximity to 
any drainage course such as springs and seeps, must be protected from 
groundwater by the appropriate use of rock drains under the backfill 
and along the highwall, and be protected from water infiltration into 
the backfill by the use of appropriate methods such as diversion drains 
for surface runoff or encapsulation with clay or other material of low 
permeability.

[FR Doc. 96-18610 Filed 7-23-96; 8:45 am]
BILLING CODE 4310-05-M