[Federal Register Volume 65, Number 161 (Friday, August 18, 2000)]
[Rules and Regulations]
[Pages 50409-50431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20800]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-085-FOR]


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 announcing its approval, with certain exceptions, of an 
amendment to the West Virginia regulatory program under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). The program 
amendment consists of changes to the West Virginia regulations (38 CSR 
2) contained in House Bill 4223, and changes to Sec. 22-3 of the Code 
of West Virginia contained in Senate Bill 614. The amendment is 
intended to comply with the Consent Decree that was agreed to by the 
plaintiffs and the West Virginia Division of Environmental Protection 
(WVDEP) and approved by the U.S. District Court for the Southern 
District of West Virginia on February 17, 2000, in the matter of Bragg 
v. Robertson, Civil Action No. 2:98-0636 (S.D.W.Va.).

EFFECTIVE DATE: August 18, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158. E-mail: [email protected].

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. You can find background information 
on the West Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of the approval in the 
January 21, 1981, Federal Register (46 FR 5915-5956). You can find 
later actions concerning the West Virginia program and previous 
amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated March 14, 2000 (Administrative Record Number WV-
1147) and March 28, 2000 (Administrative Record Number WV-1148), and 
electronic mail dated April 6, 2000 (Administrative Record Number WV-
1149), the WVDEP submitted an amendment to its program. The amendment 
concerns changes to the West Virginia surface mining reclamation 
regulations made by the State Legislature in House Bill 4223, and 
changes made to the Code of West Virginia in Senate Bill 614. Most of 
the amendment is intended to comply with the Consent Decree that was 
agreed to by the plaintiffs and the WVDEP and approved by the U.S. 
District Court for the Southern District of West Virginia on February 
17, 2000, in the matter of Bragg v. Robertson, Civil Action No. 2:98-
0636 (S.D.W.Va.).
    We announced receipt of the proposed amendment in the April 25, 
2000, Federal Register (65 FR 24158-24162), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period closed on May 25, 2000. 
Since no one requested a public hearing, none was held.

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. Any revisions that we do not specifically discuss 
below concern nonsubstantive wording changes or revised paragraph 
notations to reflect organizational changes that result from this 
amendment.
    In addition, to expedite our review of the amendment, we have 
separated from this amendment the proposed rules at new section CSR 38-
2-7.5 concerning ``homesteading'' as a postmining land use for permits 
that meet the requirements for a variance from approximate original 
contour (AOC). These new rules were submitted to comply with the 
Consent Decree mentioned above. We will render our findings on new 
section CSR 38-2-7.5 in a separate notice to be published in the 
Federal Register.

A. Senate Bill 614

    Numerous wording and paragraph notation changes have been made.
    These are nonsubstantive changes that will not be discussed. The 
substantive changes are identified below.
    1. W.Va. Code 22-3-3. Definitions.
    At Sec. 22-3-3(e) the definition of the term ``approximate original 
contour'' (AOC) is amended. The word, ``disturbed'' has been deleted 
from the phrase, ``backfilling and grading of the disturbed areas.'' 
Added in place of the deleted word is the word, ``mined.'' As amended, 
AOC means: ``that surface configuration achieved by the backfilling and 
grading of the mined areas so that * * *.'' We find that the amended 
phrase is identical to the counterpart phrase in the definition of AOC 
at section 701(2) of SMCRA, and at 30 CFR 701.5 of the Federal 
regulations. Therefore, we find the revision to be no less stringent 
than SMCRA and no less effective than the Federal regulations and can 
be approved.
    At Sec. 22-3-3(u) (2), the definition of ``surface mine,'' 
``surface-mining'' or ``surface-mining operations'' is amended by 
deleting the word ``may'' in the sentence immediately before 
subdivision (i), and replacing that word with the word ``does.'' As 
amended, the sentence reads: ``Surface-mining does

[[Page 50410]]

not include any of the following: * * *.'' We find that the amendment 
merely clarifies the meaning of the quoted phrase and can be approved. 
However, as discussed below, our approval does not mean that the three 
examples of exemptions to the definition are approved parts of the West 
Virginia program.
    In the February 9, 1999, Federal Register (64 FR 6201-6218), we 
addressed a West Virginia program amendment in which the State proposed 
adding the three exemptions to the definition of ``surface mine,'' 
``surface-mining'' or ``surface-mining operations,'' and which are 
located at section 22-3-3(u)(2)(i), (ii), and (iii). In that notice, we 
deferred our decision on the section 22-3-3(u)(2)(i) concerning 
government-financed reclamation contract; disapproved section 22-3-
3(u)(2)(ii) concerning coal extraction as an incidental part of 
development for commercial, residential, industrial, or civic use; and 
approved section 22-3-3(u)(2)(iii) concerning the reclamation of an 
abandoned or forfeited mine by a no-cost reclamation contract to the 
extent that the reclamation activities do not include coal extraction. 
See the February 9, 1999, notice and the May 5, 2000, Federal Register 
(65 FR 26130-26136) for more information on OSM decisions relating to 
State amendments on government-financed reclamation contracts, coal 
extraction as an incidental part of development for commercial, 
residential, industrial, or civic use, and the reclamation of abandoned 
or forfeited mines by no-cost reclamation contracts.
    At Sec. 22-3-3(y), the definition of ``lands eligible for 
remining'' is amended in the second sentence by deleting the word 
``may'' and adding in its place the word ``do.'' As amended, the 
sentence reads as follows: ``Surface-mining operations on lands 
eligible for remining do not affect the eligibility of the lands for 
reclamation and restoration under article two of this chapter.'' We 
find that the amendment to Sec. 22-3-3(y) does not render the provision 
less stringent than SMCRA at section 404 which provides that surface 
coal mining operations on lands eligible for remining shall not affect 
the eligibility of such lands for reclamation and restoration. 
Therefore, the amendment can be approved. We note, however, that on 
February 9, 1999 (64 FR 6201-6218), we approved the definition of 
``lands eligible for remining'' at section 22-3-3(y) only to the extent 
that AML funds may be used to reclaim sites where a bond or deposit has 
been forfeited only if the bond or deposit is insufficient to provide 
for adequate reclamation or abatement. That qualified approval still 
stands.
    2. W.Va. Code 22-3-13. General environmental protection performance 
standards for surface mining; variances.
    At Sec. 22-3-13(c)(3), concerning mountaintop removal mining 
operations, the list of approvable postmining land uses is amended as 
follows. In the first sentence, the word ``woodland'' is deleted, the 
words ``commercial forestry'' are added, the words ``or fish and 
wildlife habitat and recreation lands use'' are deleted, the word 
``facility'' and the words ``including recreational uses'' are added. 
As amended, the sentence reads as follows: ``In cases where an 
industrial, commercial, agricultural, commercial forestry, residential, 
public facility including recreational uses is proposed for the 
postmining use of the affected land * * *.''
    In addition, a new subdivision Sec. 22-3-13(c)(3)(B)(iii) is added 
to require that the applicant provide assurances that the proposed 
postmining land use will be ``obtainable according to data regarding 
expected need and market.'' The previously existing subdivision (iii) 
is renumbered as subdivision (iv), and so on.
    SMCRA at section 515(c)(3) provides for the following postmining 
land uses for mountaintop removal operations: industrial, commercial, 
agricultural, residential, and public facility (including recreational 
facilities). On September 1, 1983 (48 FR 39892, 39893), OSM amended its 
rules concerning postmining land uses and variances. In the preamble, 
OSM discussed amending the definition of ``land use'' at 30 CFR 701.5. 
In that discussion, OSM stated that ``Agricultural use is interpreted 
as including cropland, pastureland or land occasionally cut for hay, 
grazingland, and forestry.'' We have considered ``forestry'' to be a 
subset of the ``agricultural'' postmining land use since 1983. Even 
though the State has listed commercial forestry separately, it is an 
approvable postmining land use for mountaintop removal operations under 
the ``agricultural'' postmining land use. Therefore, the deletion of 
the term ``woodland'' and the addition of the term ``commercial 
forestry'' do not render subsection (c)(3) less stringent than section 
515(c)(3) of SMCRA and can be approved.
    On May 14, 1999 (64 FR 26288), we determined that the State's 
postmining land use of ``fish and wildlife habitat'' rendered the West 
Virginia program less stringent than SMCRA, because SMCRA at section 
515(c)(3) does not authorize ``fish and wildlife habitat'' as a 
postmining land use for mountaintop removal operations. We disapproved 
the State's proposed ``fish and wildlife habitat'' postmining use at 
section 22-3-13(c)(3), and required that the West Virginia program be 
amended to remove the phrase ``or fish and wildlife habitat and 
recreation lands.'' We also required that the term ``public use'' at 
section 22-3-13(c)(3) be amended to include the term ``facility'' and 
also to clarify that the term will be interpreted the same as ``public 
facility (including recreation facilities) use'' at SMCRA section 
515(c)(3). We codified these required amendments in the Federal 
regulations at 30 CFR 948.16(iiii)(1) and (2). The State has responded 
to these required amendments by deleting the words ``or fish and 
wildlife habitat and recreation lands use'' and by adding the words 
``facility including recreational uses.'' As amended, section 22-3-
13(c)(3) is substantively identical to the approvable postmining land 
uses for mountaintop removal operations provided at section 515(c)(3) 
of SMCRA with one exception. The State term ``public facility including 
recreational uses'' differs from the SMCRA term ``public facility 
(including recreational facilities).'' The meaning of the difference is 
not readily apparent.
    In May 14, 1999, Federal Register notice discussed above, we 
explained that SMCRA's use of the term ``facilities'' means that 
various structures which support the public or recreational use of the 
land are required to be developed. For example, the postmining land use 
of ``public facility (including recreational facilities)'' requires a 
structure or development of some sort created by man that the public is 
able to use. A ``public facility'' might include developments such as 
governmental buildings, prisons, schools, reservoirs, or airports. 
``Recreational facilities'' might include developed recreational 
facilities such as parks, camps, and amusement areas, as well as areas 
developed for uses such as hiking, canoeing, and other less intensive 
recreational uses. However, even the less intensive recreation 
facilities would require structures or developments to support the 
public uses. For example, less intensive recreation facilities such as 
those for hiking and camping may require access roads, parking lots, 
rest rooms, developed trails, boat ramps, camping shelters, etc. In the 
required amendment codified at 30 CFR 948.16(iiii)(2), we require that 
the State amend the term ``public use'' at section 22-3-13(c)(3) to 
include the term ``facility'' and also to clarify that the term will be 
interpreted

[[Page 50411]]

the same as ``recreational facilities use'' at SMCRA section 515(c)(3). 
In this amendment, the State has added the term ``recreational use,'' 
but has not submitted an explanation as to how the term will be 
interpreted.
    It is not clear whether or not the proposed postmining land use of 
``public facility including recreational uses'' is intended to mean the 
same as ``public facility (including recreational facilities) use'' at 
section 515(c)(3) of SMCRA. Therefore, we are approving the amendment 
only to the extent that the term ``public facility including 
recreational uses'' is interpreted to mean the same as the SMCRA term 
``public facility (including recreational facilities) use'' as 
discussed above. In addition, since the State has satisfied the 
provisions of the required amendment codified at 30 CFR 948.16(iiii) 
(1) and (2), except for providing the clarification concerning how the 
WVDEP will interpret the term ``recreational uses,'' we are deleting 
most of the required amendment except that we will continue to require, 
at (iiii), that the State amend the term ``recreational uses'' at W.Va. 
Code 22-3-13(c)(3) to mean ``recreational facilities use'' at SMCRA 
section 515(c)(3).
    Finally, the added words ``obtainable according to data regarding 
expected need and market'' at subdivision 22-3-13(c)(3)(B)(iii) are 
identical to, and therefore no less stringent than, the SMCRA provision 
at section 515(c)(3)(B)(ii) and can be approved. These changes are in 
response to a study that we conducted on mountaintop removal mining in 
West Virginia.
    3. W.Va. Code 22-3-23. Release of bond or deposits; application; 
notice; duties of director; public hearings; final maps on grade 
release.
    At subsection 22-3-23(c), a new subdivision number and title at 
(c)(1) are added to read as follows. ``(1) For all operations except 
those with an approved variance from approximate original contour:'' 
Previously existing subdivisions (c)(1), (2), and (3) have been 
relettered as (c)(1)(A), (B), and (C). As amended, subdivision 22-3-
23(c)(1) applies only to operations that do not have an approved 
variance from the AOC requirements. This change does not render the 
West Virginia program less stringent than SMCRA and can be approved.
    New subdivision 22-3-23(c)(2) is added to impose specific bond 
release requirements on operations with an approved variance from the 
AOC requirements.
    New subdivision 22-3-23(c)(2)(A) provides that when the operator 
completes the backfilling, regrading and drainage control of a bonded 
area in accordance with the operator's approved reclamation plan, the 
release of 50 percent of the bond or collateral for the applicable 
bonded area will be granted: Provided, that a minimum bond of $10,000 
shall be retained after grade release.
    New subdivision 22-3-23(c)(2)(B) provides that two years after the 
last augmented seeding, fertilizing, irrigation or other work to ensure 
compliance subdivision 22-3-13(b)(19) concerning revegetation, the 
release of an additional 10 percent of the bond or collateral for the 
applicable bonded area will be granted: Provided, that a minimum bond 
of $10,000 shall be retained after this phase of bond release.
    New subdivision 22-3-23(c)(2)(C) provides that when the operator 
has completed successfully all surface mining and reclamation 
activities, the release of the remaining portion of the bond, but not 
before the expiration of the revegetation responsibility period 
specified in subdivision 22-3-13(b)(20) will be granted: Provided, that 
the revegetation has been established on the regraded mined lands in 
accordance with the approved reclamation plan and if applicable the 
necessary postmining infrastructure is established and any necessary 
financing is completed: Provided, however, that the release may be made 
where the quality of the untreated postmining water discharged is 
better than or equal to the premining water quality discharged from the 
mining site.
    These provisions apply to mountaintop removal and steep slope 
mining operations which have been granted exceptions or variances from 
the AOC requirements. As amended, subdivisions 22-3-23(c)(2)(A), (B), 
and (C) differ from the State's approved bond release provisions at 
subdivisions 22-3-23(c)(1)(A), (B), and (C) (and which now apply only 
to mined lands which were not subject to an AOC variance) in two ways: 
(1) the percentages of the bond that may be released at the different 
stages; and (2) the requirement that final bond cannot be released on 
lands subject to an AOC variance unless, and if applicable, any 
necessary postmining infrastructure is established and any necessary 
financing is completed. The proposed percentages of the bond that may 
be released at the different stages of reclamation do not exceed the 
percentages provided for in section 519(c) of SMCRA and the Federal 
regulations at 30 CFR 800.40(c). There is no direct Federal counterpart 
to the requirement that final bond cannot be released on lands subject 
to an AOC variance unless, and if applicable, any necessary postmining 
infrastructure is established and any necessary financing is completed. 
However, we find that this requirement is not inconsistent with the 
SMCRA bond release requirements at section 519(c) and the mountaintop 
removal and steep slope mining requirements at sections 515(c) and 
515(e).
    The proposed language also contains the following proviso: 
``Provided, however, That the release may be made where the quality of 
the untreated postmining water discharged is better than or equal to 
the premining water quality discharged from the mining site.'' This 
provision is less stringent than section 519(c) of SMCRA, and less 
effective than 30 CFR 800.40(c)(3), which together require that all 
reclamation requirements of the Act and the permit, including water 
quality, be fully met. Under the new language, the bond could be 
released where the quality of the water being discharged from the 
reclaimed mine site does not meet effluent limitations and applicable 
State and Federal water quality standards as required by section 519(c) 
of SMCRA and 30 CFR 816.42 and 817.42. Therefore, the proviso cannot be 
approved.
    Except for the proviso language quoted above, we find that new 
subdivisions 22-3-23(c)(2)(A), (B), and (C) are consistent with the 
Federal bond release provisions at SMCRA section 519(c) and 30 CFR 
800.40(c) and can be approved. The proviso at subdivision (c)(2)(C) 
which provides, ``Provided, however, That the release may be made where 
the quality of the untreated postmining water discharged is better than 
or equal to the premining water quality discharged from the mining 
site,'' is not approved. Therefore, we are requiring that the West 
Virginia program at W.Va. Code Sec. 22-3-23(c)(2)(C) be further amended 
to delete the proviso which allows the release of bond where the 
quality of untreated postmining water discharged is better than or 
equal to the premining water quality discharged from the mining site. 
We previously disapproved and set aside similar language at section 22-
3-23(c)(1)(C). We codified that disapproval at 30 CFR 948.12(e), and 
the set aside at 30 CFR 948.13(c). We recommend the language at section 
22-3-23(c)(1)(C) that is set aside, and therefore not a part of the 
approved West Virginia program, also be deleted.

B. House Bill 4223

    1. CSR 38-2-2.31. Definition of commercial forestry and forestry.
    This new definition is added to read as follows.


[[Page 50412]]


    2.31.a. Commercial Forestry, as used in Subsection 7.4 of this 
rule, means a long-term postmining land use designed to accomplish 
the following: (1) Achieve greater forest productivity than that 
found on the mine site before mining; (2) Minimize erosion and/or 
sediment yield and serve the hydrologic functions of infiltrating, 
holding, and yielding water commonly found in undisturbed forests; 
(3) Result in biodiversity by facilitating rapid recruitment of 
native species of plants and animals via the process of natural 
succession; (4) Result in a premium forest that will thrive under 
stressful conditions; and (5) Result in landscape, vegetation and 
water resources that create habitat for forest-dwelling wildlife.
    2.31.b. Forestry, as used in Subsection 7.4 of this rule, means 
a long-term postmining land use designed to accomplish the 
following: (1) Achieve forest productivity equal to that found on 
the mine site before mining; (2) Minimize erosion and/or sediment 
yield and serve the hydrologic functions of infiltrating, holding, 
and yielding water commonly found in undisturbed forests; (3) Result 
in biodiversity by facilitating rapid recruitment of native species 
of plants and animals via the process of natural succession; and (4) 
Result in landscape, vegetation and water resources that create 
habitat for forest-dwelling wildlife.

    The Federal regulations at 30 CFR 701.5 define ``forestry'' within 
the definition of ``land use'' at paragraph (d) to mean land used or 
managed for the long-term production of wood, wood-fiber, or wood-
derived products. Neither of the State's definitions specifically state 
that forestry means land used or managed for the production of wood, 
wood-fiber, or wood-derived products as does the Federal definition at 
30 CFR 701.5. However, the State's revised definition of ``Commercial 
Forestry'' at the land use categories at CSR 38-2-7.2.i. clarifies that 
commercial forestry is where forest cover is managed for commercial 
production of timber products. We therefore find that the lack of 
reference to wood, wood-fiber, and wood-derived products at CSR 38-2-
2.31.a. does not render the West Virginia program less effective than 
the Federal regulations and can be approved. However, the definition of 
``forestry'' lacks a reference to wood products. Therefore, to be no 
less effective than the Federal definition of forestry under the 
definition of land use at 30 CFR 701.5, we are requiring that the West 
Virginia program at CSR 38-2-2.31.b. be amended to clearly define 
forestry to mean a postmining land use used or managed for the long 
term production of wood or wood products.
    2. CSR 38-2-2.45. Definition of downslope.
    This definition is amended by deleting the words ``except in 
operations where the entire upper horizon above the lowest coal seam is 
proposed to be partly or entirely removed.'' The deleted language was 
never approved by OSM. (See 64 FR 6201, 6205, February 9, 1999.) As 
amended, ``downslope'' means the land surface between the projected 
outcrop of the lowest coal seam being mined along each highwall, or any 
mining-related construction, and the valley floor. We note, however, 
that as amended, the State definition is identical to the Federal 
definition of ``downslope'' at 30 CFR 701.5 with the following 
exception.
    In the proposed definition, the words ``or any mining-related 
construction'' do not appear in the Federal definition. OSM approved 
the mining-related construction language in the October 4, 1991 Federal 
Register (56 FR 50256, 50257-58). In that finding, OSM stated that the 
Federal definition is not intended to prohibit the construction of haul 
roads or pond embankments on steep slopes below the outcrop of the 
lowest coal seam being mined. Therefore, OSM determined that, to the 
extent that the term ``mining-related construction'' refers to 
structures such as those listed above, the State definition is no less 
effective than the Federal regulations. Similarly, OSM stated that to 
the extent that the proposed State's language is intended to prohibit 
the downslope placement of spoil removed by mining-related 
construction, it is not inconsistent with any Federal requirement. The 
WVDEP further clarified its definition of downslope by stating 
(Administrative Record Number WV-857) that the revised definition does 
not allow indiscriminate placement of materials on the downslope 
between the bench or cut and any mining-related construction. OSM 
approved the amended definition to the extent that the clarification 
provided by the State prohibits the placement of any debris, abandoned 
or disabled equipment, spoil material, or waste mineral matter between 
the lowest coal seam being mined and any mining-related construction. 
In our meeting with the WVDEP on May 3, 2000 (Administrative Record 
Number WV-1165A), the WVDEP stated that it continues to prohibit 
indiscriminate placement of materials on the downslope between the 
bench or cut and any mining-related construction. Therefore, for these 
reasons we find that as amended, the definition of ``downslope'' does 
not render the West Virginia program less effective than the Federal 
definition at 30 CFR 701.5 and can be approved.
    3. CSR 38-2-2.98. Definition of prospecting.
    This definition is amended by deleting the word ``substantial'' 
before the word ``disturbance'' in the first sentence. The effect of 
this deletion is that the definition of ``prospecting'' is no longer 
limited to those activities that cause ``substantial'' disturbance. On 
February 9, 1999 (64 FR 6201, 6205), we disapproved a West Virginia 
amendment concerning the definition of ``prospecting.'' In that 
amendment, the State added the word ``substantial'' to its definition 
of ``prospecting.'' The Federal regulations at 30 CFR 701.5 contain a 
definition of ``coal exploration'' that is synonymous with 
``prospecting,'' except the Federal definition lacks the word 
``substantial.'' In the disapproval, we noted that the Federal 
regulations at 30 CFR 772.11 require that a notice of intent to explore 
for coal be filed for any coal exploration operation, regardless of 
whether any disturbance at all will occur. In promulgating this revised 
Federal regulation on December 29, 1988, the Director stated that ``for 
the regulatory authority to determine which proposed coal exploration 
operations may substantially disturb the natural land surface, it must 
be informed of all proposed exploration.'' (53 FR 52943). Therefore, we 
did not approve the proposed addition of the word ``substantial'' to 
modify the word ``disturbance'' in the State's definition of 
``prospecting.''
    We find that the deletion of the word ``substantial,'' from the 
State's definition of ``prospecting'' fully addresses the reason for 
our disapproval of February 9, 1999. The State's definition of 
``prospecting'' is now no less effective than its Federal counterpart 
at 30 CFR 701.5, and with the Federal regulations at 30 CFR 772.11. 
Therefore, the deletion of the word ``substantial'' can be approved.
    4. CSR 38-2-2.123. Definition of substantially disturb.
    This definition is amended by deleting the word ``and'' after the 
words ``significantly impact land,'' and adding in its place the word 
``or.'' With this change, substantially disturb means to significantly 
impact land or water resources.
    On February 9, 1999 (64 FR 6201, 6206), we approved an amendment to 
the State's definition of ``substantially disturb'' but, in the 
interest of clarity, also required the State to amend the phrase ``land 
and water resources'' to read ``land or water resources.'' In its 
submittal of that amendment, the WVDEP stated that it interprets the 
definition of ``substantially disturb'' to mean that if land and/or 
water resources are significantly impacted by

[[Page 50413]]

prospecting that will mean that those resources have been 
``substantively (sic) disturbed.'' We approved the amended definition 
to the extent that it is construed in the manner explained by the 
WVDEP. However, because future administrations could construe the use 
of the term ``and'' in its more commonly understood sense, as a 
conjunctive connector, we required that the West Virginia program be 
further amended by changing the phrase ``land and water resources'' to 
``land or water resources'' in the definition of ``substantially 
disturb.'' We codified that required amendment in the Federal 
regulations at 30 CFR 948.16(xxx). In the currently proposed amendment, 
the State has clarified the definition of ``substantially disturb,'' 
and thereby has satisfied the required program amendment codified at 30 
CFR 948.16(xxx). Therefore, we are approving the amendment to the 
definition of ``substantially disturb'' and we are removing the 
required amendment codified at 30 CFR 948.16(xxx).
    5. CSR 38-2-2.136. Definition of woodlands.
    The definition of woodlands is deleted. As discussed above in 
Finding A. 2., we are approving the deletion of ``woodlands'' as an 
acceptable postmining land use for mountaintop removal operations. This 
postmining land use has no Federal counterpart. Therefore, we likewise 
find that the deletion of the definition of ``woodlands'' does not 
render the West Virginia program inconsistent with SMCRA or the Federal 
regulations and can be approved.
    6. CSR 38-2-3.8.c. Structures and support facilities.
    This subsection is amended by adding a new concluding sentence 
which reads as follows: ``This exemption shall not apply to new and 
existing coal waste facilities.''
    The Director approved amendments to CSR 38-2-3.8(c) on July 24, 
1996 (61 FR 38382, 38383). In addition to the approval, the Director 
required at 30 CFR 948.16(vvv)(1) that the West Virginia program be 
further amended 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 proposed amendment is intended to satisfy the required 
amendment codified at 30 CFR 948.16(vvv)(1)(1) by clarifying that the 
exemption at CSR 38-2-3.8(c) does not apply to the requirements for new 
and existing coal mine waste disposal facilities. The proposed 
amendment, therefore, satisfies the required amendment codified at 30 
CFR 948.16(vvv)(1)(1) and can be approved. However, the remaining 
requirement at 30 CFR 948.16(vvv)(1)(2), which is to clarify that the 
exemption at CSR 38-2-3.8(c) does not apply to the requirements to 
restore the land to AOC has not yet been satisfied and will remain in 
force. We will revise the required amendment codified at 30 CFR 
948.16(vvv)(1) to only delete the satisfied portion at 
948.16(vvv)(1)(1).
    7. CSR 38-2-3.25 Transfer, assignment, or sale of permit rights and 
obtaining approval.
    This subsection is amended by adding the term ``reinstatement'' in 
the title of the subsection, and in four locations where the phrase 
``transfer, assignment, or sale'' appears. In addition, subdivision 
3.25.b. is amended by adding a sentence which states that, ``as a 
condition of reinstatement, the Director may require a modification to 
the mining and reclamation plan.'' With this amendment, the provisions 
of CSR 38-2-3.25 will apply to reinstated permits. In its submittal of 
this amendment, the WVDEP stated that the purpose of this amendment is 
to provide rules consistent with the W.Va. Code change that was 
approved by OSM.
    On February 9, 1999 (64 FR 6201, 6203), we published a final rule 
notice in which we addressed an amendment to the West Virginia Surface 
Coal Mining and Reclamation Act (WVSCMRA) at section 22-3-17(b). That 
section was amended by adding a paragraph which provides that, within 
one year following the notice of a permit revocation, subject to the 
discretion of the director and based upon a petition for reinstatement, 
the revoked permit may be reinstated. Further, the provision provides 
that the reinstated permit may be assigned to any person who meets the 
permit eligibility requirements of the WVSCMRA at 
Sec. 22-3.
    We approved the reinstatement provisions because the Federal 
requirements do not specifically prohibit the reinstatement of a 
revoked permit. We note, of course, that even though WVSCMRA provides 
for a reinstatement period of up to one year after permit revocation, 
the reinstatement procedures must not result in the intentional delay 
of bond forfeiture reclamation by the WVDEP. We approved the statutory 
revision in so far as the new language added to section 22-3-17(b) did 
not contain any provisions that were less stringent than the 
requirements of SMCRA. However, because the State's proposed 
reinstatement provisions did not reference the transfer, assignment or 
sale requirements of section 22-3-19(d) of WVSCMRA or CSR 38-2-3.25, 
and because the WVDEP had not fully developed its reinstatement 
procedures, we stated that the proposed provisions could not be 
implemented until the West Virginia program was further amended. We 
required at 30 CFR 948.16(www) that the State further amend the West 
Virginia program to accomplish the following: (1) adopt reinstatement 
procedures similar to its transfer requirements contained in CSR 38-2-
3.25; (2) allow for public participation; (3) require that the revoked 
permit meet the appropriate permitting requirements of the WVSCMRA; and 
(4) require that the mining and reclamation plan be modified to address 
any outstanding violations for any permit reinstated pursuant to 
Sec. 22-3-17(b) of the WVSCMRA. In the preamble containing our finding, 
we also stated that in no event can a reinstated permit be approved in 
advance of the close of the public comment period, and the party 
seeking reinstatement must post a performance bond that will be in 
effect before, during, and after the reinstatement of the revoked 
permit. The proposed regulatory amendment has been submitted to address 
the required amendment codified at 30 CFR 948.16(www).
    The amendments to CSR 38-2-3.25 address the required amendment 
codified at 30 CFR 948.16(www), as follows. Concerning requirement (1), 
the State has adopted reinstatement procedures similar to its transfer 
requirements contained in CSR 38-2-3.25 by adding the term 
``reinstatement'' to the title of section CSR 38-2-3.25, and at four 
locations within the section and thereby, adopting the requirements for 
transfer, assignment, or sale of permit rights as the reinstatement 
provisions. This satisfies requirement (1) at 30 CFR 948.16(www).
    Concerning requirement (2), ``allow for public participation,'' the 
State amendment adds the term ``reinstatement'' to subdivision CSR 38-
2-3.25.a.3. which provides for public comment on the proposed permit 
reinstatement. This satisfies requirement (2) at 30 CFR 948.16(www).
    Concerning requirement (3), ``require that the revoked permit meet 
the appropriate permitting requirements of the WVSCMRA,'' the State 
amendment adds the term ``reinstatement'' to subdivision CSR 38-2-
3.25.a.4. This subdivision provides that an approval of an application 
may be granted upon a written finding that the applicant will

[[Page 50414]]

conduct mining operations in accordance with the purpose and intent of 
the WVSCMRA, CSR 38-2, and the terms and conditions of the permit. Such 
findings, the provision states, will be based on information set forth 
in the application for transfer, assignment, or sale and any other 
information made available to the Director of the WVDEP. This satisfies 
requirement (3) at 30 CFR 948.16(www). We note that the word 
``reinstatement'' was inadvertently omitted from the requirement that 
such findings will be based on information set forth ``in the 
application for transfer, assignment, or sale'' and any information 
made available to the Director of the WVDEP. Therefore, subdivision CSR 
38-2-3.25.a.4. must be further amended to add the word 
``reinstatement'' to the phrase ``transfer, assignment, or sale'' in 
the second sentence of subdivision CSR 38-2-3.25.a.4.
    Concerning requirement (4), ``require that the mining and 
reclamation plan be modified to address any outstanding violations for 
any permit reinstated pursuant to Sec. 22-3-17(b) of the WVSCMRA,'' the 
State amendment added a sentence to subdivision CSR 38-2-3.25.b. The 
new sentence provides that, ``as a condition of reinstatement, the 
Director may require a modification to the mining and reclamation 
plan.'' With the added sentence, CSR 38-2-3.25.b. provides that: (1) 
Any person who assumes ownership or control directly or indirectly of a 
surface mining and reclamation operation shall become responsible for 
the correction of all outstanding unabated violations; and (2) as a 
condition of reinstatement, the Director may require a modification to 
the mining and reclamation plan. These provisions together satisfy the 
intent of requirement (4), and is consistent with the ``successor in 
interest'' obligations contained in 30 CFR 774.17(f). We find that the 
required amendment codified at 30 CFR 948.16(www) is satisfied and can 
be removed, and that, therefore, the amendment can be approved.
    The proposed amendment does not address our February 9, 1999, 
statement (at 64 FR 6201, page 6203) that, ``in no event can a 
reinstated permit be approved in advance of the close of the public 
comment period * * *.'' It may be appropriate that in cases of 
transfer, assignment or sale of permit rights that the procedures at 
CSR 38-2-3.25.b. allow for the approval of a transfer, assignment or 
sale of a permit in advance of the close of the comment period. Under 
certain limited circumstances, this could accommodate the sale of 
assets from one party to another.
    However, in cases of reinstated permits, there would be no sale of 
assets from one party to another. Therefore, there should be no 
provision to allow approval of a reinstated permit prior to the close 
of the public comment period. The State has indicated its intent not to 
allow approval of reinstatement of a permit in advance of the close of 
the public comment period (Administrative Record Number WV-1165). 
Nevertheless, we are requiring that the West Virginia program at CSR 
38-2-3.25.b. be further amended to provide that in no event can a 
reinstated permit be approved in advance of the close of the public 
comment period.
    8. CSR 38-2-7.2.i. Commercial woodland.
    The land use category of ``commercial woodland'' is amended by 
deleting the word ``woodland,'' and adding in its place the word 
``forestry.'' As amended, the land use of ``commercial forestry'' 
means, ``where forest cover is managed for commercial production of 
timber.''
    The Federal regulations at 30 CFR 701.5 define the term 
``forestry'' under the definition of ``land use'' at paragraph (d) to 
mean ``land used or managed for the long-term production of wood, wood 
fiber, or wood-derived products.'' As amended, the State's ``commercial 
forestry'' is similar to the Federal definition of ``forestry'' land 
use, except that the Federal definition provides slightly more detail. 
For example, the Federal definition states that ``forestry'' involves 
the production of wood, wood fiber, or wood-derived products. The State 
definition, however, merely refers to the production of timber 
products. The State's definition is still no less effective than the 
Federal definition because the timber products referred to in the 
State's definition could be used to produce wood fiber or wood-derived 
products.
    The State definition of ``commercial forestry'' also lacks a 
requirement found in the Federal definition that the forest cover be 
managed for the ``long-term'' production of timber. This does not 
render the State definition less effective than the Federal definition. 
The State has added new definitions of ``commercial forestry'' and 
``forestry'' at CSR 38-2-2.31.a., and .b., and both include the ``long-
term'' standard. While these new definitions specifically apply to the 
new rules at CSR 38-2-7.4 concerning AOC variance operations, it is not 
unreasonable to conclude that all forestry operations are considered to 
be long-term. Therefore, we find the definition of ``commercial 
forestry'' to be no less effective than the Federal regulations at 30 
CFR 701.5 and can be approved.
    9. CSR 38-2-7.3. Criteria for approving alternative postmining use 
of land.
    New subdivision 7.3.c. is added to provide that: ``A change in 
postmining land use to grassland uses such as rangeland and/or hayland 
or pasture is prohibited on operations that obtain an approximate 
original contour variance described in WV Code Sec. 22-3-13(b)(25)(c). 
Provided, however, That this subdivision is not effective until 
Sections 7.4 and 7.5 of this rule are approved by the federal Office of 
Surface Mining.'' It must be noted that there is a citation error in 
the quoted language. The mountaintop removal AOC variance provisions 
are located at section 22-3-13(c), not section 22-3-13(b)(25)(c). In 
its June 9, 2000, letter, the WVDEP stated that the citation error has 
been corrected (Administrative Record Number WV-1165). A spokesperson 
for the Secretary of State also confirmed that the citation error at 
subdivision 7.3.c. had been corrected in the surface mining reclamation 
rules that were filed by the WVDEP and which will take effect on August 
1, 2000 (Administrative Record Number WV-1171).
    There is no direct Federal counterpart to the proposed amendment. 
Under section 515(c)(3) of SMCRA, industrial, commercial, agricultural, 
residential or public facility (including recreational facilities) uses 
may be approved as postmining land uses for mountaintop removal mining 
operations. Certain managed grassland uses, such as grazing land, 
hayland or pasture land, are included within the Federal 
``agricultural'' land use category. SMCRA at section 515(c)(3)(A) 
provides that the regulatory authority may grant a permit for 
mountaintop removal operations where (among other requirements) it 
deems that the proposed postmining land use constitutes an equal or 
better economic or public use of the affected land, as compared with 
the premining use. In this proposed amendment, the State has apparently 
concluded that such low intensity agricultural uses do not represent an 
equal or better economic or public use of the affected land. We find 
that the proposed amendment is not inconsistent with SMCRA at section 
515(c)(3), which requires the regulatory authority to make such 
determinations, and can be approved.
    10. CSR 38-2-7.4. Standards applicable to approximate original 
contour variance operations with a postmining land use of commercial 
forestry and forestry.
    This subsection is new and contains the following subdivisions:

[[Page 50415]]

    a. 7.4.a. Applicability. Subdivision 7.4.a.1. provides that CSR 38-
2-7.4 applies to commercial forestry and forestry as they are defined 
at CSR 38-2-2.31 (see Finding B. 1., above). The proposed language is 
as follows.

    Commercial Forestry and forestry may be approved as a post 
mining land use for surface mining operations that receive variances 
from the general requirement to restore the postmining site to its 
approximate original contour. An applicant may request AOC variance 
for purposes of this section for the entire permit area or any 
segment thereof. Either commercial forestry or forestry shall be 
established on all portions of the permit area. Provided, that the 
faces of valley fills shall be reclaimed as described in 7.4.b.1.J 
of this rule.

    SMCRA at section 515(c) provides that the following postmining land 
uses (PMLU) may be approved for mountaintop removal mining operations, 
provided other specified criteria are met: industrial, commercial, 
agricultural, residential, or public facility (including recreational 
facilities) use. We have recognized forestry as an agricultural PMLU 
since 1983 (September 1, 1983; 48 FR at 39893). Consequently, 
commercial forestry may be approved for mountaintop removal mining 
operations as an agricultural use, provided the specified criteria at 
section 515(c) are met.
    An agricultural PMLU is not an approvable PMLU under SMCRA at 
section 515(e)(2) for steep slope mining operations seeking a variance 
from the requirements to restore the land to AOC. Therefore, since we 
recognize forestry only as an agricultural PMLU, commercial forestry 
and forestry PMLU cannot be approved for steep slope mining operations 
seeking a variance from the requirements to restore the land to AOC.
    Consequently, CSR 38-2-7.4.a.1., which authorizes commercial 
forestry and forestry for mining operations that receive variances from 
the general requirement to restore the postmining site to its AOC is no 
less stringent than 515(c) of SMCRA to the extent that it applies only 
to mountaintop removal mining operations.
    The WVDEP has stated (Administrative Record Number WV-1165A) that 
the definitions of ``commercial forestry'' and ``forestry'' will be 
applied only as follows. ``Commercial forestry,'' both the definition 
and the implementing regulations at CSR 38-2-7.4, applies only to that 
portion of the operation which receives a variance from the 
requirements to achieve AOC. ``Forestry,'' both the definition and the 
implementing regulations at CSR 38-2-7.4, applies only to that portion 
of the operation which does not receive an AOC variance and the land 
surface after mining will achieve AOC.
    We clarified in our postmining land use policy document issued on 
June 23, 2000, that postmining land uses for mountaintop removal mining 
operations must afford some added benefit either from a public policy 
or an economic standpoint in compensation for not returning the land to 
AOC. Under the Federal regulations at 30 CFR 785.14(c)(1)(ii), 
mountaintop removal operations must comply with the alternative 
postmining land use requirements of 30 CFR 816.133(a) through (c). Like 
section 515(b)(2) of SMCRA, paragraphs (a) and (c) of 30 CFR 816.133 
specify that the only acceptable alternative postmining land uses are 
those that are higher or better than the premining uses. This means 
that the postmining use must represent an added benefit from either a 
public or economic standpoint. Therefore, for example, rather than a 
forestry premining use resulting in a forestry postmining use, to 
create an added benefit, a forestry premining use would have to result 
in a commercial forestry postmining use or some other higher or better 
use.
    CSR 38-2-7.4.a.1. provides that ``commercial forestry and 
forestry'' may be approved as a postmining land use for surface mining 
operations that receive variances from the AOC requirements. As 
discussed above, however, only commercial forestry would provide an 
added benefit in compensation for not returning the land to AOC. Most 
likely, a forestry postmining use in West Virginia would be similar to 
the premining use and would not provide an added economic or public 
benefit for not returning the land to AOC. Therefore, forestry does not 
qualify as a higher or better postmining land use for an AOC variance 
whereas commercial forestry does qualify for an AOC variance. CSR 38-2-
7.4.a.1. does not make it clear that only commercial forestry may be 
approved for areas receiving a variance from the AOC requirements. We 
are approving CSR 38-2-7.4.a.1., but only to the extent that it applies 
to mountaintop removal mining operations that receive an AOC variance 
pursuant to W.Va. Code. 22-3-13(c). In addition, we are requiring that 
the West Virginia program be further amended to make it clear that at 
CSR 38-2-7.4.a.1., only commercial forestry postmining use and not 
forestry postmining use may be approved for areas receiving a variance 
from the AOC requirements.
    b. 7.4.b. Requirements. This subsection contains requirements 
concerning planting and management plan development, oversight 
procedures, landscape criteria, soil and soil substitutes, soil 
placement and grading, liming and fertilizing, ground cover vegetation, 
tree species and compositions, standards of success, front faces of 
valley fills, and long-term monitoring and adaptive management. 
Subsection 7.4.b. contains the following requirements.
    7.4.b.1. This provision provides that the Director of the WVDEP may 
authorize commercial forestry and forestry as a postmining land use 
only if the following conditions have been satisfied.
    7.4.b.1.A. Planting and management plan development. This 
subdivision contains the following requirements.

    7.4.b.1.A.1. A registered professional forester shall develop a 
planting plan and long-term management plan for the permitted area 
that meets the requirements of the West Virginia Surface Coal Mining 
and Reclamation Act. These plans shall be made a part of the surface 
mining permit application and shall be the basis for determining the 
capability of the applicant to meet the requirements of this rule. 
The plans shall be in sufficient detail to demonstrate that the 
requirements of the commercial forestry and forestry uses can be 
met. The plans shall contain a signed statement of intent from the 
landowner demonstrating its commitment to long-term implementation 
and management in accordance with the plan. Once final bond release 
is authorized, the permittee's responsibility for implementing the 
long-term management plan ceases. Upon final bond release, the 
jurisdiction of the Director over the permittee, the operator, the 
landowner or any other responsible party shall cease. The minimum 
required content of these plans shall be as follows:
    7.4.b.1.A.2. The landowner or other responsible party shall 
submit their objectives for achieving commercial forestry and 
forestry postmining land uses. The Director may approve the uses 
only when the planting plan and long term management plan 
demonstrate that the forest will be managed only for long term 
forest products, such as sawlogs or veneer, that take 50 to 80 years 
to mature.
    7.4.b.1.A.3. A commercial species planting plan and prescription 
shall be developed by the registered professional forester to 
achieve the commercial forestry and forestry use. The plan shall 
include the following:
    7.4.b.1.A.3.(a) A topographic map of the permit area, 1:12000 or 
finer, showing the mapped location of premining native soil. A 
description of each soil mapping unit that includes, at minimum, 
total depth and volume to bedrock, soil horizons, including the O, 
A, E, B, C, and Cr horizon depths, soil texture, structure, color, 
reaction and bedrock type and a site index for common native tree 
species. An approved certified professional

[[Page 50416]]

soil scientist shall conduct a detailed on-site survey, create the 
maps, and provide the written description of the soils. As part of 
the field survey, the soil scientist shall map and certify the 
slopes that are 50% or less with a confidence level of  
2%.
    7.4.b.1.A.3.(b) An approved geologist shall create a certified 
geology map showing the location, depth, and volume of all strata in 
the mined area, the physical and chemical properties of each stratum 
to include rock texture, pH, potential acidity and alkalinity, total 
soluble salts, degree of weathering, extractable levels of 
phosphorus, potassium, calcium, magnesium, manganese, and iron and 
other properties required by the director to select best available 
materials for minesoils.
    7.4.b.1.A.3.(c) A description of the present soils and soil 
substitutes to be used as the plant medium and the proposed 
handling, and placement of these materials. The handling plan shall 
include procedures to:
    7.4.b.1.A.3.(c)(1) protect native soil organisms and the native 
seed pool;
    7.4.b.1.A.3.(c)(2) include organic debris such as litter, 
branches, small logs, roots, and stumps in the soil;
    7.4.b.1.A.3.(c)(3) inoculate the minesoil with native soil 
organisms;
    7.4.b.1.A.3.(c)(4) increase soil fertility; and
    7.4.b.1.A.3.(c)(5) encourage plant succession.
    7.4.b.1.A.3.(d) A surface preparation plan which includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and tree 
planting.
    7.4.b.1.A.3.(e) Liming and fertilization plans.
    7.4.b.1.A.3.(f) Mulching type, rates and procedures.
    7.4.b.1.A.3.(g) Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub, and vine 
plant materials for ground cover.
    7.4.b.1.A.3.(h) A tree planting prescription to establish 
commercial forestry and forestry, to include species, stems per 
acre, planting mixes, and site-specific planting arrangements to 
maximize productivity.
    7.4.b.1.A.4. A long-term management plan shall be developed by a 
registered professional forester. The plan shall include:
    7.4.b.1.A.4.(a) A topographic map, with a minimum scale of 
1:12000 shall be used to show the boundaries and extent of the 
proposed surface mining operation, the boundaries of areas being 
planned for commercial forestry and forestry land uses, and the 
proposed postmining surface configuration, stream drainages and 
wetlands, and the plant species mix that will be planted in each 
area.
    7.4.b.1.A.4.(b) A proposed schedule of all silvicultural 
activities necessary to develop the forest resources for commercial 
forestry and forestry.
    7.4.b.1.A.4.(c) A description of activities necessary to protect 
the forest resources from vandalism, wildfire, insects, diseases, 
exotic organisms and herbivory detrimental to long-term success.
    7.4.b.1.A.4.(d) A plan to assure forest access for future 
management, protection, and eventual utilization of the forest 
resources. The plan shall be developed to minimize adverse 
environmental impacts, including additional road building and other 
land disturbances. Forestry best management practices shall be 
followed.
    7.4.b.1.A.4.(e) A plan for using forestry best management 
practices to minimize silvicultural and harvesting impacts on the 
permit area and on waters of the State. Best Management Practices 
shall be sufficient to assure compliance with applicable State and 
Federal water quality standards.
    7.4.b.1.A.5. A signed statement from the permittee containing 
financial information and data sufficient to demonstrate:
    7.4.b.1.A.5.(a) That achieving the commercial forestry use is 
practicable with respect to the private financial capability 
necessary to achieve the use; and
    7.4.b.1.A.5.(b) That the commercial forestry use will be 
obtainable according to data regarding expected need and market.
    7.4.b.1.A.6. Two copies of the planting plan, management plan, 
pertinent maps and statement of intent shall be submitted to the 
appropriate Division of Forestry District Forester and two copies of 
each plan shall be submitted to the Director of the Division of 
Environmental Protection.

    SMCRA at section 515(c)(3)(B), and the Federal regulations at 30 
CFR 785.14(c) provide that an applicant for a mountaintop removal 
mining permit must present specific plans for the proposed postmining 
land use. SMCRA and the Federal regulations do not, however, contain 
the same level of specificity as do these regulations with respect to 
the plans that must be submitted to support a particular authorized 
postmining land use. The provisions at CSR 38-2-7.4.b.1.A. provide 
detailed requirements concerning the specific plans that must be 
submitted for commercial forestry and forestry. The new provisions are 
not inconsistent with the requirements of SMCRA at section 515(c)(3)(B) 
and the Federal regulations at 30 CFR 785.14(c), which require that an 
applicant for a mountaintop removal mining permit present specific 
plans for the proposed postmining land use. However, in addition to 
these specific requirements in this subdivision, an applicant must 
demonstrate compliance with all of the existing State requirements 
concerning mountaintop removal mining operations at W.Va. Code 22-3-
13(c) and CSR 38-2-14.10. Therefore, we find that the provisions at CSR 
38-2-7.4.b.1.A. are not less stringent than SMCRA nor less effective 
than the Federal regulations and can be approved to the extent that 
they supplement, but do not supersede, the existing mountaintop removal 
permitting requirements and performance standards at W.Va. Code 22-3-
13(c) and CSR 38-2-14.10. In addition, we are approving these 
requirements to the extent that the use of best management practices at 
CSR 38-2-7.4.b.1.A.4.(e) will be limited to postmining timber 
harvesting practices conducted after final bond release and not as a 
substitute for the sediment control practices required at CSR 38-2-5.4 
during mining and reclamation activities. Moreover, the termination of 
jurisdiction portion of CSR 38-2-7.4.b.1.A.1. is no less effective than 
the Federal termination of jurisdiction regulation at 30 CFR 
700.11(d)(1)(ii), which authorizes the regulatory authority to 
terminate jurisdiction over a permanent program surface coal mining 
operation upon final bond release, but only to the extent that the 
State also applies the reassertion of jurisdiction requirements in its 
program at CSR 38-2-1.2.d. to these sites.
    7.4.b.1.B. Oversight Procedures for Achieving Commercial Forestry 
and Forestry. This subdivision contains the following requirements.

    7.4.b.1.B.1. Before approving a commercial forestry and forestry 
reclamation plan, the Director shall assure that the planting plan, 
long-term management plan, and statement of intent are reviewed and 
approved by a registered professional forester employed either by 
the West Virginia Division of Forestry or the Director of the 
Division of Environmental Protection and that a certified 
professional soil scientist employed by the Director reviews and 
field verifies the soil slope and sandstone mapping. Before 
approving the reclamation plan, the Director shall assure that the 
reviewing forester has made site-specific written findings 
adequately addressing each of the elements of the plans and 
statements. The reviewing forester and soil scientist shall make 
these findings within 45 days of receipt of the plans and maps.
    7.4.b.1.B.2. If after reviewing the plans, the reviewing 
forester and soil scientist find that the plans and statements 
comply with the requirements of this land use, they shall prepare 
written findings stating the basis of approval. A copy of the 
findings shall be sent to the Director and to the surface mining 
permit supervisor for the region in which the permit is located. The 
written findings shall be made part of the facts and findings 
section of the surface mining permit application file. The Director 
shall assure that the plans and statements comply with the 
requirements of this rule and other provisions of the approved State 
surface mining program.
    7.4.b.1.B.3. If the reviewing forester finds the plans to be 
insufficient, the forester shall either:
    7.4.b.1.B.3.(a) Contact the preparing forester or the permittee 
and provide the permittee with an opportunity to make the changes 
necessary to bring the reclamation plan into compliance with the 
regulations, or
    7.4.b.1.B.3.(b) Notify the Director that the reclamation plan 
does not meet the requirements of the regulations.
    The Director may not approve the surface mining permit until 
finding that the reclamation plans satisfy all of the requirements 
of the regulations.


[[Page 50417]]


    SMCRA and the Federal regulations do not contain specific 
counterparts to these provisions. The new provisions are, however, not 
inconsistent with the requirement of SMCRA at section 515(c) and the 
Federal regulations at 30 CFR 785.14 concerning mountaintop removal 
mining operations. Furthermore, there is nothing in these provisions 
that replaces the existing State requirements concerning mountaintop 
removal mining operations at W.Va. Code 22-3-13(c) or the regulations 
at CSR 38-2-14.10. Rather, the new requirements at CSR 38-2-
7.4.b.1.B.2. provide that the Director of the WVDEP must assure that 
the plans and statements comply with both the new rule, and with other 
provisions of the approved State surface mining program. It should be 
noted that these requirements are in addition to the permit approval 
requirements of W.Va. Code 22-3-18, which also must be satisfied prior 
to the issuance of a permit. Because nothing in these proposed rules 
supersedes or replaces the existing requirements, we find that the new 
provisions at CSR 38-2-7.4.b.1.B. are not inconsistent with SMCRA or 
the Federal regulations and can be approved.
    7.4.b.1.C. Landscape Criteria. This subdivision contains the 
following requirements.

    7.4.b.1.C.1. For commercial forestry, the Director shall assure 
that the postmining landscape is rolling, and diverse. The backfill 
on the mine bench shall be configured to create a postmining 
topography that includes the principles of landforming (e.g. the 
creation of swales) to reflect the premining irregularities in the 
land. Postmining landform shall provide a rolling topography with 
slopes of both 5% and 15% with an average slope of 10% to 12.5%. The 
elevation change between the ridgeline and the valleys shall be 
varied. The slope lengths shall not exceed 500 feet. The minimum 
thickness of backfill, including minesoil, placed on the pavement of 
the basal seam mined in any particular area shall be ten (10) feet.
    7.4.b.1.C.2. For commercial forestry, the surface drainage 
pattern shall contain watersheds of various sizes, shall exhibit a 
dendritic drainage pattern that simulates the premining pattern, and 
shall include the drainage channels, sediment control or other water 
retention surfaces, which shall remain on the site after bond 
release.
    7.4.b.1.C.3. For commercial forestry, in areas where drainage 
channel design criteria do not mandate erosion control materials, 
and in other drainage areas where applicable, bioengineering 
techniques such as fascines, branch packings, live crib walls, and 
plantings of native herbs and shrubs appropriate for the site shall 
be used, to the extent possible, to increase the site biodiversity. 
Only native stone shall be used for erosion control.
    7.4.b.1.C.4. For commercial forestry, at least 3 ponds, 
permanent impoundments or wetlands totaling at least 3.0 acres shall 
be created on each 200 acres of permitted area. They shall be 
dispersed throughout the landscape and each water body shall be no 
smaller than 0.20 acres. All ponds, permanent impoundments or 
wetlands shall be subject to the requirements of subsection 5.5 of 
this rule, and shall be left in place after final bond release. The 
substrate of the ponds and wetlands must be capable of retaining 
water to support aquatic and littoral vegetation.
    7.4.b.1.C.5. For forestry, all ponds and impoundments created 
during mining shall be left in place after bond release and shall be 
subject to the requirements of section 5.5 of the Rules, except for 
ponds and impoundments located below the valley fills. The substrate 
of the ponds and wetlands must be capable of retaining water to 
support aquatic and littoral vegetation.
    7.4.b.1.C.6. Before Phase III bond release may be approved, the 
ponds, permanent impoundments or wetlands used to satisfy parts 
7.4.d.1.C.4. and 5. of this rule shall be vegetated on the perimeter 
with at least six native herbaceous species typical of the region at 
a density of not less than 1 plant per linear foot of edge, and at 
least 4 native shrub species at a density of not less than 1 shrub 
per 6 linear feet of edge. No species of herbaceous or shrub species 
shall be less than 15% of the total for its life form. This 
requirement may be met by planted vegetation or that which naturally 
colonizes the site.
    7.4.b.1.C.7. The landscape criteria in parts 7.4.d.1.C.1., 2., 
3., 4., 5., and 6. above, do not apply to valley fills.

    SMCRA and the Federal regulations do not contain all of the 
specific counterparts to these provisions. However, except as discussed 
below, the new provisions at CSR 38-2-7.4.b.1.C are not inconsistent 
with the requirements of SMCRA at section 515(c) and the Federal 
regulations at 30 CFR 785.14 concerning mountaintop removal mining 
operations and can be approved.
    CSR 38-2-7.4.b.1.C.5. provides that for forestry, all ponds and 
impoundments created during mining shall be left in place after bond 
release and shall be subject to the requirements of section 5.5 of the 
Rules, ``except for ponds and impoundments located below the valley 
fills.'' The meaning of the phrase, ``except for ponds and impoundments 
located below the valley fills'' is unclear. In our meeting with the 
WVDEP on May 3, 2000, the WVDEP stated that the phrase means that ponds 
and impoundments located below the valley fills are not required to be 
left in place after bond release, whereas ponds located elsewhere on 
the permit area are required to be left in place after bond release.
    Nevertheless, the language at CSR 38-2-7.4.b.1.C.5 provides for a 
broad exemption from the permanent impoundment requirements at CSR 38-
2-5.5. Federal regulations at 30 CFR 816.49(b) set forth requirements 
applicable to all impoundments that will remain after mining, 
regardless of their location. The West Virginia counterpart to 30 CFR 
816.49(b) is CSR 38-2-5.5. Therefore, we find that the language at CSR 
38-2-7.4.b.1.C.5 which states, ``except for ponds and impoundments 
located below the valley fills'' renders the West Virginia program less 
effective than the Federal regulations at 30 CFR 816.49(b) and cannot 
be approved. Furthermore, we are requiring the State to either remove 
the phrase, ``except for ponds and impoundments located below the 
valley fills,'' from its regulations at CSR 38-2-7.4.b.1.C.5 or revise 
the language to clarify that ponds and impoundments below the fill that 
are left in place must meet the requirements of CSR 38-2-5.5.
    7.4.b.1.D. Soil and Soil Substitutes. This subdivision contains the 
following requirements.

    7.4.b.1.D.1. Soil is defined as and shall consist of the O, A, 
E, B, C and Cr horizons.
    7.4.b.1.D.2. The Director shall require the operator to recover 
and use the soil volume equal to the total soil volume on the mined 
area, as shown on the soil maps and survey except for those areas 
with a slope of at least 50%. The Director shall assure that all 
saved soil includes all of the material from the O through Cr 
horizons.
    7.4.b.1.D.3. When the soil volume recovered in 7.4.b.1.D.2. 
above, is insufficient to meet the depth requirements, selected 
overburden materials may be used as soil substitutes. In such cases, 
the Director shall require the operator to recover and use all of 
the weathered, slightly acid brown sandstone from within ten (10) 
feet of the soil surface on the mined area. This weathered, slightly 
acid, brown sandstone material may contain or be supplemented with 
up to 25% by-volume weathered, slightly acid brown shale or 
siltstone from within ten (10) feet of the soil surface. Material 
from this layer may be removed with the soil and mixed with the soil 
in order to meet the depth requirement. Provided, that once the 
operator has recovered material sufficient to meet the depth 
requirements, it may cease recovering such material.
    7.4.b.1.D.4. When the materials described in 7.4.b.1.D.2. and 3. 
of this rule are insufficient to meet the depth requirements, then 
the Director shall require the operator to recover and use all of 
the weathered, slightly acid, brown sandstone from below ten feet of 
the soil surface on the mined area. Provided, that once the operator 
has recovered material sufficient to meet the depth requirements, it 
may cease recovering such material.
    7.4.b.1.D.5. If the applicant affirmatively demonstrates that 
the materials described in 7.4.b.1.D.2., 3., and 4. of this rule 
within the mined area are insufficient to meet the depth 
requirements, then up to 2/3 of the minesoil may consist of the best 
available material or mix of materials.

[[Page 50418]]

    7.4.b.1.D.6. Before approving the use of soil substitutes, the 
Director shall require the permittee to demonstrate that the 
selected overburden material is suitable for restoring land 
capability and productivity. This will be demonstrated by the 
results of chemical and physical analyses that show that this 
material is at least 75% sandstone, has at least 15% fines (2mm), 
has a net acid-base accounting between -3 and +3 calcium carbonate 
equivalent per 1000 tons of material excluding siderite effects, a 
soluble salt level less than 1.0 mmhos/cm, to result in a long-term 
equilibrium pH of between 5.0 and 6.5 and additional analyses as the 
Director deems necessary. If this spoil is made up of strongly 
contrasting materials with respect to acid/base accounting these 
materials shall be blended.
    7.4.b.1.D.7. The minesoils shall be distributed across the 
disturbed areas, except the faces of valley fills, in a uniform and 
consistent mix.
    7.4.b.1.D.8. For commercial forestry, the final surface material 
used as the planting and growth medium (hereinafter referred to as 
commercial forestry minesoil) shall consist of a minimum of four 
feet, and an average of at least five feet, of soil or a mixture of 
materials consisting of no less than one-third soil and two-thirds 
of the materials described in 7.4.b.1.D.3. and 4. of this rule.
    7.4.b.1.D.9. For forestry, the final surface material used as 
the planting and growth medium (forestry minesoil) shall consist of 
a minimum of 4 feet of soil, or a mixture of soil and suitable soil 
substitutes described in 7.4.b.1.D.4 through 6 of this rule.
    7.4.b.1.D.10. Commercial forestry minesoil shall be placed on 
that portion of the mined area which receives an AOC variance. For a 
proposed mine permit area or any specifically defined segment of the 
proposed permit area that does not satisfy the volumetric criteria 
for AOC, an AOC variance shall be required. In order to define the 
portion of the permit classified as AOC-compliant or AOC-variant, 
the permit may be divided into segments. The number of segments 
shall not exceed the number of excess spoil disposal areas proposed 
and each segment shall include at least one associated fill. In no 
event will there be more variance segments than there are excess 
spoil disposal areas on the permit area. For each segment, the AOC 
status shall be defined as complying with AOC if that segment meets 
the backfill volume, valley fill design, backfill inflection point 
tests and other criteria as described in the AOC policy adopted by 
the Director.
    7.4.b.1.D.11. Forestry minesoil shall, at a minimum, be placed 
on all areas achieving AOC.
    7.4.b.1.D.12. If the applicant does not demonstrate that there 
is sufficient material available on the permit area to satisfy the 
requirements of 7.4.d.1.D., then the Director may not authorize this 
post mining land use.
    7.4.b.1.D.13. The Director shall require the operator to 
include, as part of the commercial forestry and forestry minesoil 
mix, organic debris such as forest litter, branches, small logs, 
roots and stumps in the soil to help re-seed and resprout the native 
vegetation, inoculate the minesoil with native soil organisms, 
increase soil fertility, and encourage plant succession.
    7.4.b.1.D.14. The Director shall require that soil be removed 
and re-applied in a manner that minimizes stockpiling to protect 
seed pools and soil organisms. Only soil removed from the mined area 
during the one-year period immediately following commencement of 
soil removal may be placed in a long-term stockpile. Except for soil 
in a long-term stockpile, soil redistribution shall be done within 
six months of soil removal. Except for soil in a long-term 
stockpile, soil shall be stored for less than six months in piles 
less than six feet high and 24 feet wide in a stable area within the 
permit area where it will not be disturbed and will be protected 
from water or wind erosion or contaminants that lessen its 
capability to support vegetation. Long-term stockpiles shall be 
seeded with the legumes specified in the ground cover mixes used for 
reforestation (7.4.d.1.G.1. of this rule).

    There are no specific counterparts to the provisions at CSR 38-2-
7.4.b.1.D. at SMCRA section 515(c) nor the Federal regulations at 30 
CFR 785.14 concerning mountaintop removal mining operations. There is 
nothing in these provisions that replace the existing State 
requirements concerning mountaintop removal mining operations at W.Va. 
Code 22-3-13(c) or the regulations at CSR 38-2-14.10. During our 
meeting with the WVDEP on May 3, 2000, the WVDEP stated that the 
existing State requirements concerning mountaintop removal mining 
operations at W.Va. Code 22-3-13(c) or the regulations at CSR 38-2-
14.10. continue to apply.
    The Federal regulations at 30 CFR 701.5 define topsoil to mean the 
A and E soil horizon layers of the four master soil horizons, which 
include the A, E, B and C horizons. In addition, the Federal 
regulations at 30 CFR 816.22(a)(1)(i) require that, prior to mining, 
all topsoil be removed as a separate layer and segregated. As an 
alternative, 30 CFR 816.22(a)(2) provides that if the topsoil is less 
than six inches thick, the operator may remove the topsoil and the 
unconsolidated materials immediately below the topsoil and treat the 
mixture as topsoil. During our meeting with the WVDEP on May 3, 2000, 
the WVDEP officials stated that the topsoil in the steep slope areas 
where mountaintop removal permits are requested is typically three 
inches thick.
    The new State provision incorporates the flexibility afforded by 30 
CFR 816.22(a)(ii) because of the thin topsoil in most steep slope areas 
of West Virginia. The new State provisions at CSR 38-2-7.4.b.1.D.2. 
require the operator to recover and use the soil volume equal to the 
total soil volume on the mined area, as shown on the soil maps and 
survey except for those areas with a slope of at least 50%. All saved 
soil must include all of the material from the O through Cr horizons. 
However, the proposed rule at CSR 38-2-7.4.b.1.D.2. does not require an 
operator to recover and use topsoil from areas with slopes 50 percent 
(27 degrees) or greater. The Federal regulations at 30 CFR 816.22, like 
the State rules at CSR 38-2-14.3, require an operator to save and 
redistribute all topsoil. Therefore, we are not approving the phrase, 
``except for those areas with a slope of at least 50%,'' and we are 
requiring the State to delete this phrase from its regulations at CSR 
38-2-7.4.1.D.2. Furthermore, the State must define the O and Cr soil 
horizons since neither horizon is defined in existing regulations, and 
we are requiring that the State amend its program to do so.
    In addition, new CSR 38-2-7.4.b.1.D.6. provides that, before 
approving the use of soil substitutes, the Director shall require the 
permittee to demonstrate that the selected overburden material is 
suitable for restoring land capability and productivity on the basis of 
chemical and physical analyses. In order to be no less effective than 
the Federal regulations at 30 CFR 816.22(b), the proposed State rule 
must also provide that the substitute material is equally suitable for 
sustaining vegetation as the existing topsoil and the resulting medium 
is the best available in the permit area to support vegetation. 
Therefore, we are requiring that CSR 38-2-7.4.b.1.D.6. be further 
amended to provide that the substitute material must be equally 
suitable for sustaining vegetation as the existing topsoil and the 
resulting medium is the best available in the permit area to support 
vegetation.
    CSR 38-2-7.4b.1.D.10 provides that for each segment of the permit, 
the AOC status shall be defined as complying with AOC if that segment 
meets the backfill volume, valley fill design, backfill inflection 
point tests and other criteria as described in the AOC policy adopted 
by the Director. The final consent decree that was approved by U.S. 
District Court Chief Judge Charles Haden on February 17, 2000, which 
settled the Bragg v. Robertson case, Civil Action No. 2:98-0636 (S.D. 
W.Va.), required the parties to develop a plan to meet AOC and to 
optimize spoil placement for surface mining valley fills. In addition, 
the consent decree provided that the plan could only be implemented 
pursuant to an MOU or agreement among the affected Federal and State 
agencies. On March 6 and 13, 2000, the U.S. Environmental Protection 
Agency and the U.S. Army Corps of

[[Page 50419]]

Engineers, respectively, submitted letters to the WVDEP agreeing to the 
use of the State's AOC Process Guidance Document dated January 27, 2000 
(Administrative Record Nos. WV-1153 and WV-1154). On March 24, 2000, 
OSM notified WVDEP that it had reviewed the AOC Process Guidance 
Document and, with certain exceptions, concurred with the 
implementation of that document (Administrative Record No. WV-1150). 
The final AOC Process Guidance Document was implemented by WVDEP on 
June 5, 2000. The proposed rule cited above will ensure compliance with 
that document. However, it must be noted that, in addition to the 
requirements set forth in the AOC Process Guidance Document, we are 
only approving this provision to the extent that the design and 
construction requirements set forth in CSR 38-2-3.7 and 38-2-14.14 for 
the disposal of excess spoil must also be satisfied.
    CSR 38-2-7.4.b.1.D.13 provides that the Director shall require the 
operator to use, as part of the soil mix, organic debris such as forest 
litter, branches, small logs, roots and stumps in the soil to reseed 
and resprout the native vegetation, inoculate the mine soil, increase 
soil fertility and encourage plant succession. As mentioned above, soil 
is defined as the O, A, E, B, C, and Cr horizons. New CSR 38-2-
7.4.b.1.E.1. also provides that the Director of the WVDEP must require 
the permittee to place mine soil loosely and in a non-compacted manner 
while meeting the static safety factor requirements. Therefore, organic 
material may only be placed in the soil mix if such placement will 
enhance the soil, promote vegetative growth and not affect stability.
    The Federal regulations at 30 CFR 816.22(d) provide that topsoil 
and topsoil substitute materials must be redistributed in a manner that 
achieves an approximately uniform and stable thickness consistent with 
the approved postmining land use, contours and surface water drainage 
systems. These rules further provide that the regraded land must be 
treated if necessary to reduce potential slippage of the redistributed 
material and to promote root penetration. The Federal regulations also 
address the presence of organic materials in both backfills and excess 
spoil fills. For example, the Federal regulations at 30 CFR 816.102 (d) 
concerning backfilling and grading require the removal of all organic 
material before placement of spoil on slope areas. Likewise, 30 CFR 
816.71(e) concerning the placement of excess spoil provides that all 
vegetative and organic materials shall be removed from the disposal 
area prior to placement of the excess spoil. 30 CFR 816.107(d) 
concerning the backfilling and grading of steep slopes provides that 
woody materials may not be placed in the backfill of steep slope areas 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area. 30 CFR 816.71(e) also provides 
that organic material may be included in the topsoil to control 
erosion, promote growth of vegetation, or increase the moisture 
retention of the soil. Because the proposed and existing State rules 
will limit the placement of organic material, such as branches, roots, 
and stumps, in the soil mix for redistribution, while still requiring 
backfilled and excess spoil areas to comply with the required static 
safety factors and ensuring that any woody material buried in the 
backfill in steep slope areas will not deteriorate the stable 
conditions of the backfill areas, we find that proposed CSR 38-2-
7.4.b.1.D.13 is consistent with and no less effective than the Federal 
soil redistribution and stability requirements at 30 CFR 816.22(d), 
816.71(e), 816.102(d), 816.107(d) and can be approved.
    Except as discussed above, we find the new provisions at CSR 38-2-
7.4.b.1.D to be consistent with the Federal topsoil and subsoil 
provisions at 30 CFR 816.22. They do not render the West Virginia 
program less stringent than SMCRA nor less effective than the Federal 
regulations and can be approved.
    7.4.b.1.E. Soil Placement and Grading. This subdivision contains 
the following requirements.

    7.4.b.1.E.1. The Director shall require the permittee to place 
minesoil loosely and in a non-compacted manner while meeting static 
safety factor requirements. Minesoil shall be graded only when 
necessary to maintain stability or on slopes greater than 20% unless 
otherwise approved by the Director. Grading shall be minimized to 
reduce compaction. When grading is approved by the Director, only 
light grading equipment may be used to grade the tops off the piles, 
roughly leveling the area with no more than one or two passes. 
Tracking in and rubber-tired equipment shall not be used. Non-
permanent roads, equipment yards, and other trafficked areas shall 
be deep-ripped (24" to 36") to mitigate compaction and to allow 
these areas to be restored to productive commercial forestry. Soil 
physical quality shall be inadequate if it inhibits water 
infiltration or prevents root penetration or if their physical 
properties or water-supplying capacities cause them to restrict root 
growth of trees common to the area. Slopes greater than 50% shall be 
compacted no more than is necessary to achieve stability and non-
erodability.
    7.4.b.1.E.2. The Director shall require the permittee to leave 
soil surfaces rough with random depressions across the entire 
surface to catch seed and sediment, conserve soil water, and promote 
revegetation. Organic debris such as forest litter, logs, and stumps 
shall be left on and in the soil.

    These provisions are consistent with the Federal requirements for 
soil redistribution at 30 CFR 816.22(d) and the final grading 
requirements at 30 CFR 816.102(h) and (j) which allow for the 
construction of small depressions to retain moisture, minimize erosion 
and assist revegetation and for the preparation of the final graded 
surfaces in a manner that minimizes erosion and provides a surface for 
replacement of topsoil that will minimize slippage. 30 CFR 816.107(d), 
concerning the backfilling and grading of steep slopes, provides that 
woody materials may not be placed in the backfill of steep slope areas 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area. Also, the Federal requirements 
at 30 CFR 816.71(e) concerning the placement of excess spoil provide 
that the regulatory authority may approve the use of organic material 
on the topsoil as mulch, or in the topsoil to promote growth of 
vegetation or increase the moisture retention of the soil. The emphasis 
in the State provisions toward minimizing compaction is consistent with 
the needs of forestry and tree growth and the Federal soil 
redistribution requirements at 30 CFR 816.22(d). The provisions do, at 
CSR 38-2-7.4.b.1.E.1., however, require compliance with the static 
safety requirements for stability of the replaced soil. Therefore, the 
Director of the WVDEP can prohibit the placement of woody material in 
the soil if the stability requirements would not be met. There is 
nothing in the provisions at CSR 38-2-7.4.b.1.E. that supersedes or 
negates compliance with the West Virginia program's effluent 
limitations or water quality standards. Therefore, we are approving the 
new provisions at CSR 38-2-7.4.b.1.E. to the extent that these 
provisions do not supersede the State's general backfilling and grading 
requirements at CSR 38-2-14.15.a. which are no less effective than the 
Federal requirements at 30 CFR 816.102(a).
    7.4.b.1.F. Liming and Fertilizing. This subdivision contains the 
following requirements.

    7.4.b.1.F.1. The Director shall require the permittee to apply 
lime where the average

[[Page 50420]]

soil pH is less than 5.5. Lime rates will be used to achieve a 
uniform soil pH of 6.0. An alternate maximum or minimum soil pH may 
be approved, however, based on the optimum pH for the forest 
revegetation species. Soil pH may vary from 4.5 to a maximum of 7.0 
from place to place across the reclaimed area with no more than 10% 
of the site below pH 5.0 and/or no more than 10% of the site above 
pH 6.5. Low and high pH levels may be approved only when tree 
species tolerant of the pH range have been approved for planting.
    7.4.b.1.F.2. The Director shall require the permittee to 
fertilize based on the needs of trees and ground cover vegetation. 
The permittee shall apply up to 300 pounds/acre of diammonium 
phosphate (18-46-0) and up to 100 pounds/acre potassium sulfate (0-
0-52) with the ground cover seeding. Other fertilizer materials and 
rates may be used only if the Director finds that the substitutions 
are appropriate based on soil tests performed by state certified 
laboratories.

    The Federal revegetation regulations at 30 CFR 816.111 do not 
contain specific liming or fertilization standards. The Federal 
regulations do require that the permittee establish a diverse, 
effective, and permanent vegetative cover that is in accordance with 
the approved permit and reclamation plan.
    Subsection 7.4.b.1.F.2. provides for fertilizing rates of up to 300 
pounds/acre of diammonium phosphate (18-46-0) and up to 100 pounds/acre 
potassium sulfate (0-0-52) with the ground cover seeding. Other 
fertilizer materials and rates may be used only if the Director of the 
WVDEP finds that the substitutions are appropriate based on soil tests 
performed by state certified laboratories. The approved State rules at 
CSR 38-2-9.2.i.1 require a minimum of 600 pounds of 10-20-10 or 10-20-
20 per acre, unless alternative rates are approved based on soil 
analyses performed by qualified laboratories. During our meeting with 
the WVDEP on May 3, 2000, the WVDEP stated that the new liming and 
fertilizing requirements at CSR 38-2-7.4.b.1.F. are intended to meet 
the specific needs for commercial tree growth and will be used in lieu 
of the fertilizing requirements at CSR 38-2-9.2.i.1 for commercial 
forestry and forestry postmining land use on operations receiving a 
mountaintop removal AOC variance. There are no corresponding Federal 
standards concerning fertilizer requirements. Therefore, the State must 
use its technical judgement to determine the appropriate rate of 
fertilizer application. Although the new rate is expected to promote 
tree growth and discourage competition from herbaceous cover, we 
recommend that the State require fertilizer types and rates according 
to soil tests of the mined area. Nevertheless, we find that the 
proposed provisions at CSR 38-2-7.4.b.1.F. are not inconsistent with 
the Federal revegetation standards and can be approved.
    7.4.b.1.G. Ground Cover Vegetation. This subdivision contains the 
following requirements.

    7.4.b.1.G.1. The Director shall require the permittee to 
establish a temporary erosion control vegetative cover as 
contemporaneously as practicable with backfilling and grading until 
a permanent tree cover can be established.
    This cover shall consist of a combination of native and 
domesticated non-competitive and non-invasive cool and warm season 
grasses and other herbaceous vine or shrub species including legume 
species and ericaceous shrubs. All species shall be slow growing, 
tolerant of low pH, and compatible with tree establishment and 
growth. The ground cover vegetation shall be capable of stabilizing 
the soil from excessive erosion, but it should be minimized to 
control tree-damaging rodent population, and allow the establishment 
and unrestricted growth of native herbaceous plants and trees. 
Seeding rates and composition must be in the planting plan. The 
following ground cover mix and seeding rates (pounds/acre) shall be 
used: winter wheat (15 lbs/acre, fall seeding), foxtail millet (5 
lbs/acre, summer seeding), redtop (2 lbs/acre), perennial ryegrass 
(2 lbs/acre), orchardgrass (5 lbs/acre), weeping lovegrass (2 lbs/
acre) kobe lespedeza (5 lbs/acre), birdsfoot trefoil (10 lbs/acre), 
and white clover (3 lbs/acre). Kentucky-31 fescue, serecia 
lespedeza, all vetches, clovers (except ladino and white clover) and 
other aggressive or invasive species shall not be used. South-and 
west-facing slopes with a soil pH of 6.0 or greater, the four 
grasses in the mixture shall be replaced with 20 lbs/acre of warm-
season grasses consisting of the following species: Niagara big 
bluestem (5 lbs/acre), Camper little bluestem (2 lbs/acre), Indian 
grass (2 lbs/acre), and Shelter switch grass (1 lb/acre), or other 
varieties of these species approved by the Director. Also, a 
selection of at least 3 native shrub species native of the area 
shall be included in the ground cover mix. Provided, that on slopes 
less than 20%, the Director may approve lesser or no vegetative 
cover when tree growth and productivity will be enhanced and 
excessive sedimentation will not result.
    7.4.b.1.G.2. All mixes shall be compatible with the plant and 
animal species of the region and the commercial forestry use. The 
Director shall require the use of a variety of site-specific ground 
cover treatments so that different ground cover treatments are used 
on different parts of the reclamation area to add biodiversity and 
landscape mosaic to the overall plan.
    7.4.b.1.G.3. The permittee may regrade and reseed only those 
rills and gullies that are unstable.

    The Federal regulations at 30 CFR 816.111 require that the 
permittee establish a diverse, effective, and permanent vegetative 
cover that is in accordance with the approved permit and reclamation 
plan. In addition, the Federal regulations at 30 CFR 816.111(c) provide 
for the establishment of a quick-growing, temporary, stabilizing cover 
provided that measures to establish permanent vegetation are included 
in the approved permit and reclamation plan. Furthermore, the Federal 
requirements at 30 CFR 816.114 provide that mulch and other soil 
stabilizing practices must be used on all areas that have been regraded 
and covered by topsoil or topsoil substitutes. The proposed provisions 
at CSR 38-2-7.4.b.1.G. are not inconsistent with these Federal 
revegetation standards with the following exceptions.
    CSR 38-2-7.4.b.1.G.1. provides that on slopes less than 20%, the 
Director of the WVDEP may approve lesser or no erosion control 
vegetative cover when tree growth and productivity will be enhanced and 
``excessive'' sedimentation will not result. The exact meaning of the 
term ``excessive'' sedimentation is not clear.
    SMCRA at section 515(b)(10)(B)(i) provides that coal mining 
operations must be conducted so as to prevent, to the extent possible 
using the best technology currently available, additional contributions 
of suspended solids to streamflow, or runoff outside the permit area, 
but in no event shall contributions be in excess of requirements set by 
applicable State or Federal law. Therefore, to be no less stringent 
than SMCRA, the term ``excessive sedimentation'' may not be interpreted 
to allow additional contributions of suspended solids to streamflow, or 
runoff outside the permit area in excess of requirements set by 
applicable State or Federal law. We note that, except for the phrase, 
``excessive sedimentation,'' there is nothing in new CSR 38-2-
7.4.b.1.G.1. that supersedes or negates the approved State provisions 
at CSR 38-2-14.5.b. concerning effluent limitations. It appears that 
the effluent limitations at CSR 38-2-14.5.b. would continue to apply. 
However, under the proposed State rule, sedimentation, as long as it 
was not excessive, would be allowed in streams. Subsection 14.5.b., 
like 30 CFR 816.42, provides that discharge from areas disturbed by 
surface mining shall not violate effluent limitations or cause a 
violation of applicable water quality standards.
    By limiting the amount of temporary vegetative cover on slopes less 
than 20 percent, it is anticipated that tree growth and productivity 
will be enhanced. While temporary vegetation does to some extent 
compete with tree species during the early growing seasons, such 
vegetative cover is essential to ensure stability and prevent

[[Page 50421]]

erosion. Even prior to the establishment of the temporary vegetative 
cover, 30 CFR 816.114 requires that mulch and other soil stabilizing 
practices be used to protect the topsoil and topsoil substitutes. CSR 
38-2-9.2.i.2 contains the State's mulch specifications. In addition, 
the Federal regulations at 30 CFR 816.95(a) require that all exposed 
surface areas be protected and stabilized to effectively control 
erosion and air pollution attendant to erosion.
    As proposed, CSR 38-2-7.4.b.1.G.1. is less effective than the 
Federal requirements at 30 CFR 816.42, 816.95(a), 816.111, and 816.114 
because the proposed standard to authorize lesser or no vegetative 
cover is modified by the undefined phrase, ``excessive sedimentation.'' 
To be no less effective than the Federal requirements, the Director can 
only be allowed to approve lesser or no vegetative cover on slopes less 
than 20 percent when mulch or other soil stabilizing practices have 
been used to protect all disturbed areas and it has been demonstrated 
that the reduced vegetative cover is sufficient to control erosion and 
air pollution attendant to erosion. Therefore, we are not approving the 
word ``excessive'' in the phrase ``excessive sedimentation'' at CSR 38-
2-7.4.b.1.G.1. Furthermore, we are requiring the deletion of the word 
``excessive'' from the proposed State rule at CSR 38-2-7.4.b.1.G.1 to 
ensure compliance with State water quality requirements at CSR 38-2-
14.5.b. In addition, we are requiring that the West Virginia program be 
further amended to provide that lesser or no vegetative cover may only 
be authorized by the Director when mulch or other soil stabilizing 
practices have been used to protect all disturbed areas and it has been 
demonstrated that the reduced vegetative cover is sufficient to control 
erosion and air pollution attendant to erosion regardless of slope.
    CSR 38-2-7.4.b.1.G.3. only authorizes the regrading and reseeding 
of rills and gullies that are unstable. Normally, the presence of 
unstable rills and gullies indicates that excessive erosion has 
occurred. The Federal regulations at 30 CFR 816.95(b) require the 
regrading of all rills and gullies that disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the receiving 
stream. Therefore, we are approving CSR 38-2-7.4.b.1.G.3. only to the 
extent that it is interpreted to require the repair of all rills and 
gullies that disrupt the approved postmining land use or the 
establishment of vegetative cover or cause or contribute to a violation 
of water quality standards for the receiving stream. In addition, we 
are requiring that CSR 38-2-7.4.b.1.G.3. be further amended to require 
the repair of all rills and gullies that disrupt the approved 
postmining land use or the establishment of vegetative cover or cause 
or contribute to a violation of water quality standards for the 
receiving stream.
    7.4.b.1.H. Tree Species and Compositions. This subdivision contains 
the following requirements.

    7.4.b.1.H.1. Commercial tree and nurse tree species selection 
shall be based on site-specific characteristics and long-term goals 
outlined in the forest management plan and approved by a registered 
professional forester. For commercial forestry, the Director shall 
assure that all areas suitable for hardwoods are planted with native 
hardwoods at a rate of 500 seedlings per acre in continuous mixtures 
across the permitted area with at least six (6) species from the 
following list: white and red oaks, other native oaks, white ash, 
yellow-poplar, black walnut, sugar maple, black cherry, or native 
hickories. For forestry, the Director shall assure that all areas 
suitable for hardwoods are planted with native hardwoods at a rate 
of 450 seedlings per acre in continuous mixtures across the 
permitted area with at least three (3) or four (4) species from the 
following list: white and red oaks, other native oaks, white ash, 
yellow-poplar, black walnut, sugar maple, black cherry, or native 
hickories.
    7.4.b.1.H.2. For commercial forestry, each of the species shall 
be not less than 10% of the total planted composition and at least 
75% of the total planted woody plant composition shall be from the 
list of species in part 7.4.d.1.G.1. Species shall be selected based 
on their compatibility and expected site-specific long-term 
dynamics. For forestry, if only three species from the above list 
are planted, then each of the species shall be not less than 20% of 
the total planted composition. If four species from the list in part 
7.4.d.1.G.1. are planted, then each of the species shall be not less 
than 15% of the total planted composition. Species shall be selected 
based on their compatibility and expected site-specific long-term 
dynamics.
    7.4.b.1.H.3. Between 5% and 10% of the required number of woody 
plants shall be a planted in a continuous mix of three or more nurse 
tree and shrub species that improve soil quality and habitat for 
wildlife. They shall consist of black alder, black locust, bristley 
locust, redbud, or bi-color lespedeza or other non-invasive, native 
nurse tree or shrub species, approved by the Director. One to five 
acres within each 100 acres of the permit area shall be left 
unplanted with trees, but left with ponds, wetlands or ground cover 
vegetation only. These areas may be continuous or divided into 2-4 
separate parcels, each at least 0.25 acres large.
    7.4.b.1.H.4. On areas unsuitable for hardwoods, the Director may 
authorize the following conifers: Virginia pine, red pine, white 
pine, pitch pine, or pitch x loblolly hybrid pine. Areas unsuitable 
for hardwoods shall be limited to southwest-facing slopes greater 
than 10% or areas where the soil pH is less than 5.5. These conifers 
shall be planted as single-species stands less than 10 acres in size 
at the same rate as the hardwood requirements in 7.4.b.1.H.1 of this 
rule. The Director shall assure that no reclaimed area of the permit 
area contains a total of more than 15% conifers.
    7.4.b.1.H.5. The Director shall assure that the specific species 
and selection of trees and shrubs shall be based on the suitability 
of the planting site for each species' site requirements based on 
soil type, degree of compaction, ground cover, competition, 
topographic position, and aspect.
    7.4.b.1.H.6. For commercial forestry only, in addition to the 
trees and shrubs required in the sections above, 2-0 white pine 
seedlings shall be planted across all sites at a rate of 5 to 10 
trees per acre. These trees will be used for the productivity check 
required for Phase III bond release.

    SMCRA at section 515(b)(19) provides for the revegetation of the 
affected lands with a diverse, effective, and permanent vegetative 
cover. The Federal regulations at 30 CFR 816.116(b)(3) provide the 
standards for success of revegetation for areas to be developed for 
forest products. Subsection 816.116(b)(3)(i) provides that the 
regulatory authority shall establish minimum stocking and planting 
arrangements based on local and regional conditions. The proposed tree 
species and compositions at subsection CSR 38-2-7.4.b.1.H. are 
consistent with SMCRA at section 515(b)(19) and with the Federal 
regulations at section 816.116(c)(3)(i).
    New CSR 38-2-7.4.b.1.H.1 provides that ``commercial forestry'' 
requires a planting rate of 500 seedlings per acre and ``forestry'' 
requires 450 seedlings per acre. The existing rules at CSR 38-2-9.3.g 
provide that ``forestland'' requires 450 trees, including volunteer 
tree species, and/or shrubs and CSR 38-2-9.3.h.1 requires a stocking 
rate of 450 trees per acre for commercial reforestation operations. 
During our meeting with the WVDEP on May 3, 2000, the WVDEP stated that 
new CSR 38-2-7.4.b.1.H.1 provides the standards for commercial forestry 
and forestry for postmining land use for surface mining operations that 
receive variances from the requirement to restore AOC. Therefore, upon 
approval of CSR 38-2-7.4.b.1.H.1, the stocking rates at CSR 38-2-9.3.g 
and .h will only apply to surface mining operations with postmining 
land uses of forestland/wildlife or commercial reforestation that do 
not receive variances from AOC.
    We note that there is a citation error at new CSR 38-2-7.4.b.1.H.2. 
CSR 38-2-7.4.b.1.H.2. cites CSR 38-2-7.4.d.1.G.1. as the source of a 
list of woody plant species. The list of woody

[[Page 50422]]

plant species is actually located at CSR 38-2-7.4.b.1.H.1.
    Based on the findings above, and except as noted below, we find 
that the provisions of new CSR 38-2-7.4.b.1.H. are consistent with 
SMCRA at section 515(b)(19) and with the Federal regulations at section 
816.116(c)(3)(i) and can be approved. The citation error noted at CSR 
38-2-7.4.b.1.H.2. is a typographical error that must be corrected. 
Therefore, we are requiring that the West Virginia program at CSR 38-2-
7.4.b.1.H.2. be amended to correct the citation error by deleting 
``7.4.d.1.G.1.'' in two places and replacing the deleted citation with 
``7.4.b.1.H.1.''
    7.4.b.1.I. Standards of Success. This subdivision contains the 
following requirements.

    7.4.b.1.I.1. The Director shall assure the ability of the 
commercial forestry and forestry areas to produce a high-quality 
commercial forest by confirming, after on-site soil testing, that 
the minesoil selection, placement, and preparation criteria in 
7.4.d.1.D.7 through 11 of this rule are met before Phase I bond 
release may occur. Before approving Phase I bond release, a 
certified soil scientist shall certify, and the Director shall make 
a written finding that the minesoil meets these criteria.
    7.4.b.1.I.2. The Director shall not authorize Phase II bond 
release for commercial forestry before the end of the fifth tree 
growing season. The Director may approve Phase II bond release only 
if the tree survival is equal to or greater than 300 commercial 
trees per acre (80% of which must be commercial hardwood species 
listed in 7.4.b.1.H.1 of this rule) or the rate specified in the 
forest management plan, whichever is greater. For forestry, Phase II 
bond release may be granted by the Director at the end of the second 
growing season only if the tree survival is equal to or greater than 
300 trees per acre, 60% of which must be commercial hardwood species 
listed in part 7.4.d.1.G.1. of this rule, or the rate specified in 
the forest management plan, whichever is greater. Furthermore, for 
both commercial forestry and forestry, where there is potential for 
excessive erosion on slopes greater than 20%, there shall be 70% 
ground cover where ground cover includes tree canopy, shrub and 
herbaceous cover, organic litter, and rock cover, and at least 80% 
of all trees and shrubs used to determine re-vegetation success must 
have been in place for at least 60% of the applicable minimum period 
of responsibility. Trees and shrubs counted in determining such 
success shall be healthy and shall have been in place for not less 
than two growing seasons with no evidence of die back.
    7.4.b.1.I.3. The Director may approve Phase III bond release for 
commercial forestry and forestry only if all criteria for Phase II 
bond release in 7.4.b.1.I.2 of this rule are still being met at the 
time Phase III bond release is considered. For forestry, Phase III 
bond release may not be authorized until at least five growing 
seasons have passed since the trees were planted. Additionally, for 
commercial forestry, phase III bond release may not be authorized 
unless commercial forest productivity has been achieved by the end 
of the twelfth growing season or, if such productivity has not been 
achieved, if a commercial forestry mitigation plan is submitted to 
the Director, approved and completed. Commercial forest productivity 
is achieved only when annual height increments of the white pine 
indicator species, based on the average of four or more consecutive 
annual height increments, is equal to or greater than 1.5 feet. The 
Director shall measure the average four-year growth increment of all 
trees along two perpendicular transects across the site that will 
achieve a tree sample size of no less than two trees per acre.
    7.4.b.1.I.4. A commercial forestry mitigation plan shall require 
a permittee who has not achieved commercial forestry productivity 
requirements by the end of the twelfth growing season to either pay 
to the Special Reclamation Fund an amount equal to twice the 
remaining bond amount or to perform an equivalent amount of in-kind 
mitigation. The Director shall use any money collected under this 
plan to establish forests on bond forfeiture sites. In-kind 
mitigation requires establishing forests on AML or bond forfeiture 
sites. After completion of the mitigation plan, Phase III bond 
release may be approved if the Director finds that the failure to 
achieve productivity did not result from a failure to follow the 
provisions of this rule and did not result in environmental damage.
    7.4.b.1.I.5. The Director may release all or part of the bond 
for the commercial forestry and forestry variance or increment 
thereof in accordance with this subsection and 38-2-12.2.d. and 
12.2.e. of this rule. The Director may release the variance portion 
if all appropriate standards have been met without regard to the 
bonding scheme selected for the permit.

    SMCRA at section 519(c) and the Federal regulations at 30 CFR 
800.40(c) provide for the release of performance bonds. The approved 
West Virginia program provisions for bond release are at W.Va. Code 22-
3-23 and in the rules at CSR 38-2-12.2.c. The new provisions at CSR 38-
2-7.4.b.1.I. provide additional bond release requirements for surface 
mining operations with commercial forestry and forestry postmining land 
use that receive variances from AOC.
    Except as follows, the new provisions at CSR 38-2-7.4.b.1.I. are 
consistent with and no less stringent than the revegetation success and 
bond release provisions of SMCRA at sections 515(b)(19) and (20), and 
519(c) and no less effective than the Federal bond release and 
revegetation success regulations at 30 CFR 800.40 and 816.116 and can 
be approved.
    The Federal regulations at 30 CFR 816.116(b)(3) contain the 
revegetation success standards for areas to be developed for fish and 
wildlife habitat, recreation or forest products. Minimum stocking and 
planting arrangements must be specified by the regulatory authority on 
the basis of local and regional conditions and after consultation with 
and approval by the State agencies responsible for the administration 
of forestry and wildlife programs. In addition, the Federal regulations 
at 30 CFR 816.116(b)(3)(iii) provide that vegetative cover must not be 
less than that required to achieve the postmining land use. 
Furthermore, 30 CFR 816.95 requires all exposed surface areas to be 
protected and stabilized to effectively control erosion and air 
pollution attendant to erosion.
    The West Virginia Division of Forestry has approved the State's 
existing tree stocking and ground cover standards at CSR 38-2-9.3.g. 
and .h. However, there is no evidence that the West Virginia Division 
of Forestry has reviewed and approved the proposed standards for 
commercial forestry and forestry as is required by 30 CFR 
816.116(b)(3)(i). Therefore, we are not approving these provisions at 
this time. In addition, we are requiring the WVDEP to consult with and 
obtain the approval of the West Virginia Division of Forestry on the 
new stocking standards for commercial forestry and forestry at CSR 38-
2-7.4.b.1.I. Under the Federal regulations, this approval can be on a 
program-wide or permit-specific basis. Since a program-wide approval 
has not yet been granted by the Division of Forestry, the WVDEP must 
obtain approval on a permit-specific basis until such time that it 
receives program-wide approval by the Division of Forestry.
    The proposed rule at CSR 38-2-7.4.b.1.I.2. only requires ground 
cover for surface mining operations with commercial forestry and 
forestry on slopes greater than 20 percent where there is potential for 
excessive erosion, and the proposed rule at CSR 38-2-7.4.b.1.G.1. does 
not require any ground cover on slopes less than 20 percent. The WVDEP 
has not submitted any evidence to show that the lesser ground cover 
standards would effectively comply with the vegetative ground cover 
stabilization standards at 30 CFR 816.95(a), 816.111(a), (b), and (c), 
816.114, and 816.116(b)(3)(iii), nor with the water quality standards 
for offsite discharges from disturbed areas at 30 CFR 816.42. Section 
22-3-23(c) of the W.Va. Code provides that no part of the bond or 
deposit may be released so long as the lands to which the release would 
be applicable are contributing additional suspended solids to 
streamflow or runoff outside the permit

[[Page 50423]]

area in excess of the requirements set by section 22-3-13 (concerning 
the performance standards). Therefore, Phase II bond cannot be released 
under new section 38-2-7.4.b.1.I.2. so long as the lands to which the 
release would be applicable are contributing additional suspended 
solids to streamflow or runoff outside the permit area in excess of the 
requirements set by section 22-3-13.
    As we found above with respect to the ground cover vegetation 
requirements at CSR 38-2-7.4.b.1.G.1., to be no less effective than the 
Federal requirements, the Director of the WVDEP may only be allowed to 
approve lesser or no vegetative cover on slopes less than 20 percent 
when mulch or other soil stabilizing practices have been used to 
protect all disturbed areas and it has been demonstrated that the 
reduced vegetative cover is sufficient to control erosion and air 
pollution attendant to erosion. We find that the lack of an absolute 
requirement for ground cover for slopes greater than 20 percent at CSR 
38-2-7.4.b.1.I.2. renders the West Virginia program less effective than 
the Federal requirements at 30 CFR 816.95(b), 816.111(a), (b), and (c), 
816.114, 816.116(b)(3)(iii), and 816.42. Therefore, and for similar 
reasons, we are not approving language at CSR 38-2-7.4.b.1.I.2. which 
states, ``where there is potential for excessive erosion on slopes 
greater than 20%.'' In addition, we are requiring that the West 
Virginia program be further amended at CSR 38-2-7.4.b.1.I.2. to delete 
the phrase, ``where there is potential for excessive erosion on slopes 
greater than 20%.''
    The new provision at CSR 38-2-7.4.b.1.I.2. defines ground cover to 
include tree canopy, shrub, organic litter, herbaceous cover, and rock 
cover. Under the Federal definition of ground cover at 30 CFR 701.5, 
ground cover means the area of ground covered by the combined aerial 
parts of vegetation and the litter that is produced naturally on site. 
The Federal definition includes only naturally produced organic 
material, and it does not include ``rock cover.'' In addition, the 
approved State standards for evaluating vegetative cover at CSR 38-2-
9.3 do not refer to either rocks or litter as being included in the 
term ``vegetative cover.'' Despite these differences, the Federal 
standard for revegetation success at 30 CFR 816.116(b)(3)(iii) provides 
that vegetative ground cover shall not be less than that required to 
achieve the approved postmining land use. Therefore, at a minimum, the 
vegetative ground cover must not be less than that required to achieve 
the approved commercial forestry or forestry land use whether or not 
rocks are included within the State's definition of ground cover.
    While rock cover is included in the State's standard for success 
for Phase II bond release, there appears to be no limit on the amount 
or size of rock that can be present on the surface. Certainly, large 
rocks and boulders left on the surface could interfere with the ability 
to harvest mature trees and, therefore, interfere with the ability to 
achieve the PMLU. This would render the West Virginia program less 
effective than 30 CFR 824.11(a)(11) which provides that spoil must be 
placed as necessary to achieve the approved PMLU. Therefore, we are not 
approving the words ``rock cover'' as a component of the 70 percent 
ground cover standard at CSR 38-2-7.4.b.1.I.2. In addition, we are 
requiring that the West Virginia program be further amended to delete 
the words ``rock cover'' from CSR 38-2-7.4.b.1.I.2.
    In addition, CSR 38-2-7.4.b.1.I.2. incorrectly cites part 
``7.4.d.1.G.1.'' as a list of commercial hardwood species. The correct 
citation is part ``7.4.b.1.H.1.'' This typographical error must be 
corrected. Therefore, we are requiring that the West Virginia program 
at CSR 38-2-7.4.b.1.I.2. be further amended to correct the citation 
error by deleting ``7.4.d.1.G.1.'' and replacing the deleted citation 
with ``7.4.b.1.H.1.''
    CSR 38-2-7.4.b.1.I.4. provides that a permittee who fails to 
achieve the ``commercial forestry'' productivity requirements at the 
end of the twelfth growing season must either pay into the Special 
Reclamation Fund an amount equal to twice the remaining bond amount or 
perform an equivalent amount of in-kind mitigation. The money collected 
under this plan will be used to establish forests on bond forfeiture 
sites. In-kind mitigation requires establishing forests on AML or bond 
forfeiture sites.
    Subdivision I.4. raises some concerns. First, the requirement to 
pay twice the remaining bond amount in the event of failure, though not 
specified as such, appears to be a civil penalty provision, 
particularly because the payment must be deposited into the State's 
Special Reclamation Fund. W.Va. Code 22-3-17(d)(2) also provides that 
all civil penalties are to be deposited in the Special Reclamation 
Fund. Monies deposited in the Special Reclamation Fund can only be used 
to reclaim lands abandoned after August 3, 1977. Inasmuch as it imposes 
a civil penalty for failure to meet productivity requirements by the 
end of the twelfth growing season, which exceeds its current five-year 
revegetation responsibility period, we must agree that subdivision I.4. 
comports with the existing State program and is not inconsistent with 
the civil penalty requirements at section 518 of SMCRA and at 30 CFR 
part 845 to the extent that payment of the civil penalty will not allow 
an operator to receive final bond release. However, subdivision I.4. 
also provides for ``in-kind mitigation'' as an alternative to payment 
of the civil penalty. Though not specifically authorized under SMCRA or 
the Federal regulations as a substitute for a civil penalty for non-
compliance with a program requirement, reclamation in lieu of civil 
penalties has been approved by OSM in Pennsylvania. 54 FR 46383, 
November 3, 1989. In that decision, OSM determined that neither SMCRA 
nor the Federal regulations specify the method of payment for assessed 
penalties, and that, therefore, reclamation may be substituted for cash 
payments, so long as the work to be performed is equivalent in value 
and the other requirements are met, including the requirement that a 
cash penalty be paid if reclamation has not been accomplished within a 
specified amount of time. Id. at 46384. In-kind mitigation may be 
approvable under this or similar rationale, provided the State further 
defines this term. However, for the reasons discussed below, we are not 
approving the use of in-kind mitigation in this rulemaking.
    What is more troubling about subdivision I.4 is that it would allow 
final, Phase III bond release after completion of an in-kind mitigation 
plan, even where commercial forestry productivity requirements have not 
been met at the end of the twelve year responsibility period. In this 
respect, subdivision I.4. appears to be inconsistent with section 
519(c)(3) of SMCRA and with 30 CFR 800.40 (c)(3), which provide that no 
bond shall be fully released until all reclamation requirements of 
SMCRA or the approved State program, and the permit, are fully met. 
Moreover, the inconsistency is not cured by the imposition of a twelve 
year responsibility period, even though this period is longer than the 
five year revegetation responsibility period imposed by SMCRA, because 
the new provision does not require that all reclamation requirements be 
met prior to final bond release. For these reasons, we are not 
approving the in-kind mitigation provisions at subdivision I.4, nor are 
we approving the phrase ``or, if a commercial forestry mitigation plan 
is submitted to the Director, approved and completed,'' contained in 
subdivision I.3, at this time. We will reconsider our

[[Page 50424]]

decision on these provisions, however, if the State provides adequate 
rationale for substituting in-kind mitigation for civil penalties and 
will agree that ``Commercial forestry productivity requirements'' are 
defined solely as the annual height increment criteria contained in 
subdivision I.3, since these criteria are in addition to the minimum 
stocking and planting requirements, contained in 30 CFR 816/
817.116(b)(3), that partially define revegetation success under the 
Federal regulations; and, that Phase III bond release will not be 
granted until all other requirements of the approved State program and 
the permit are fully met, in accordance with section 519(c)(3) of SMCRA 
and 30 CFR 800.40(c)(3).
    Finally, the meaning of the last sentence of CSR 38-2-7.4.b.1.I.5., 
which allows the bonding scheme selected for the permit to be ignored, 
is not clear. However, WVDEP stated in the May 3, 2000, meeting that 
the provision wouldn't affect the responsibility period or other bond 
release requirements. Therefore, we are approving CSR 38-2-7.4.b.1.I.5. 
only to the extent that the provision does not affect the 
responsibility period or other bond release requirements.
    7.4.b.1.J. Front Faces of Valley Fills. This subdivision contains 
the following requirements.

    7.4.b.1.J.1. Front faces of valley fills shall be exempt from 
the requirements of this rule except that:
    7.4.b.1.J.1.(a) They shall be graded and compacted no more than 
is necessary to achieve stability and non-erodability;
    7.4.b.1.J.1.(b) No unweathered shales may be present in the 
upper four feet of surface material;
    7.4.b.1.J.1.(c) The upper four feet of surface material shall be 
composed of soil and the materials described in 7.4.b.1.D. of this 
rule, when available, unless the Director determines other material 
is necessary to achieve stability;
    7.4.b.1.J.1.(d) The groundcover mixes described in subparagraph 
7.4.d.1.G. shall be used unless the Director requires a different 
mixture;
    7.4.b.1.J.1.(e) Kentucky 31 fescue, serecia lespedeza, vetches, 
clovers (except ladino and white clover) or other invasive species 
may not be used; and
    7.4.b.1.J.2. Although not required by this rule, native, non-
invasive trees may be planted on the faces of fills.

    The new provisions at CSR 38-2-7.4.b.1.J. concerning the front 
faces of valley fills do not add any provisions to the West Virginia 
program that render the State program less stringent than the Federal 
provisions concerning excess spoil disposal fills in SMCRA at section 
515(b)(22) and the Federal regulations at 30 CFR 816.71 and 816.72. 
However, new CSR 38-2-7.4.b.1.J. does not make it clear that the 
proposed State standards are in addition to the excess spoil disposal 
requirements at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 and apply 
to all fills, including valley fills. During our meeting with the WVDEP 
on May 3, 2000, the WVDEP stated that the State's approved excess spoil 
disposal standards at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 
apply to CSR 38-2-7.4.b.1.J. Therefore, we are approving new CSR 38-2-
7.4.b.1.J. to the extent that the proposed State standards are in 
addition to the excess spoil disposal requirements at W.Va. Code 22-3-
13(b)(22) and CSR 38-2-14.14 and apply to all fills, including valley 
fills.
    7.4.b.1.K. Long-term Monitoring and Adaptive Management. This 
provision provides that the Director of the WVDEP shall undertake, with 
the assistance of the Division of Forestry or other forestry research 
units, a performance assessment of all Commercial Forestland permits 
within 10 years of Phase III bond release. Species composition, 
biodiversity, productivity, carbon capture, wildlife habitat, stream 
and wetland biota, and hydrologic function will be assessed. Results 
will be reported, analyzed, interpreted and used as part of an adaptive 
management program to improve the regulations and guidelines for 
Commercial Forestland.
    There is no counterpart to this provision in SMCRA or the Federal 
regulations. The new provision is not, however, inconsistent with SMCRA 
or the Federal regulations. Therefore, this provision can be approved.
    11. CSR 38-2-14.12. Variance from AOC requirements.
    This provision is amended at subdivision 14.12.a.1. to delete the 
word ``woodlands'' and add in its place the words ``commercial 
forestry.'' As amended, the provision provides that the permit area for 
an AOC variance must be, ``located on steep slopes as defined in 
subdivision 14.8.a of this rule and the land after reclamation is 
suitable for industrial, commercial, residential, commercial forestry, 
or public use (including recreational facilities).'' This change 
renders the provision less stringent than SMCRA at section 515(e)(2) 
concerning steep slope mining operations seeking a variance from the 
AOC requirements because agricultural uses (including forestry and 
commercial forestry) are not authorized for postmining land uses for 
steep slope mining operations seeking a variance from the AOC 
restoration requirements.
    SMCRA at section 515(e)(2) provides that a variance for steep slope 
mining operations from the AOC requirement may be granted by the 
regulatory authority in cases where the PMLU will be industrial, 
commercial, residential, or public use (including recreational 
facilities) use. The ``agricultural'' PMLU is not authorized at section 
515(e)(2). On September 1, 1983 (48 FR at 39893) OSM amended its rules 
concerning postmining land uses and variances. In the preamble, OSM 
discussed amending the definition of ``land use'' at 30 CFR 701.5. In 
that discussion, OSM stated that ``Agricultural use is interpreted as 
including cropland, pastureland or land occasionally cut for hay, 
grazingland, and forestry.'' We have considered ``forestry'' to be a 
subset of the ``agricultural'' PMLU since 1983. Therefore, to be no 
less effective than the Federal regulations, neither forestry nor 
commercial forestry can be approved under CSR 38-2-14.12.a.1. for steep 
slope mining operations seeking a variance from the AOC restoration 
requirements.
    Therefore, we are not approving the term ``commercial forestry'' at 
CSR 38-2-14.12.a.1., because section 515(e)(2) of SMCRA does not 
authorize agricultural uses (including forestry uses) as postmining 
land uses for steep slope operations seeking a variance from the 
requirement to return the mined area to AOC. In addition, we are 
requiring the State to remove the term ``commercial forestry'' from CSR 
38-2-14.12.a.1.
    12. CSR 38-2-14.15. Contemporaneous reclamation standards.
    This provision is amended at subdivision 14.15.f. concerning 
contemporaneous reclamation variances for permit applications to add a 
sentence which reads as follows: ``Furthermore, the amount of bond for 
the operation shall be the maximum per acre specified in WV Code 
Sec. 22-3-12(c)(1).'' In effect, under this provision, permits which 
receive a contemporaneous reclamation variance under CSR 38-2-14.15.f. 
shall be bonded at the maximum amount per acre specified in WV Code 22-
3-12(c)(1).
    There is no direct Federal counterpart to this provision. 
Contemporaneous reclamation variances are not specifically authorized 
under the Federal regulations, but they are allowed under CSR 38-2-
14.15. The proposed change is to ensure that the bond amount will be 
sufficient to complete the reclamation plan of a revoked permit with a 
contemporaneous reclamation variance in the event of bond forfeiture. 
The requirement to set bond at the maximum amount per acre specified in 
WV Code 22-3-12(c)(1)

[[Page 50425]]

does not render the West Virginia program less stringent than SMCRA at 
section 509, nor less effective than the Federal bonding provisions at 
30 CFR 800.14 and can be approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On April 12, 2000, we asked for comments from various Federal 
agencies who may have an interest in the West Virginia amendment 
(Administrative Record Number WV-1152). We solicited comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the Federal regulations.
    The U.S. Department of Labor, Mine Safety and Health Administration 
responded and stated that it had no comments (Administrative Record 
Number WV-1162).
    The U.S. Department of Army, Corps of Engineers responded and 
stated that it found the amendments to be satisfactory (Administrative 
Record Number WV-1164).
    The U.S. Fish and Wildlife Service (USFWS) responded 
(Administrative Record Number WV-1161) with the following comments. 
Concerning Senate Bill 614, the USFWS stated that it seems 
inappropriate, at W.Va. Code 22-3-23(c)(2)(C), to release bond if 
vegetation is not established.
    We believe the commenter has misinterpreted the provision. The 
proposed provision provides that revegetation must be established on 
the regraded mine land. However, as discussed in Finding A.3. above, we 
disapproved the language that would allow release of bond if the 
quality of the untreated postmining water discharged is better than or 
equal to the premining water quality discharged from the mining site.
    The USFWS had the following comments on the provisions of House 
Bill 4223. Concerning the transfer, reinstatement, assignment, or sale 
of permit rights provisions at CSR 38-2-3.25, the USFWS recommended 
that there be a time limit imposed for commencement of mining 
operations and/or reclamation for permits that are ``reinstatements.'' 
In response, while CSR 38-2-3.25 does not impose a time limitation on 
the reinstatement of revoked permits, West Virginia Code 22-3-17(b), 
which was approved by OSM on February 9, 1999, 64 FR 6203), clearly 
provides that the reinstatement of revoked permits must occur within 
one year following the notice of permit revocation. Revoked permits 
that are not reinstated during the one-year period will not be eligible 
for reinstatement. As discussed above under Finding 7, this provision 
does not allow the State to delay reclamation of bond forfeiture sites. 
It merely provides that permits which are revoked may be reinstated 
within one year of permit revocation provided the requirements of West 
Virginia Code 22-3-17(b) and CSR 38-2-3.25 are satisfied. Upon approval 
of a permit reinstatement, the permittee immediately assumes 
responsibility for all the requirements, conditions, and obligations of 
the permit, including the responsibility for the correction of any 
outstanding unabated violations. The new permittee is also subject to 
all of the requirements of the WVSCMRA and its implementing rules.
    The USFWS stated that at two places in new CSR 38-2-7.4.b.1.H.2. 
and at one place in CSR 38-2-7.4.b.1.I.2., references are incorrectly 
made to CSR 38-2-7.4.b.1.G.1. for a list of species to be used as woody 
plants. However, CSR 38-2-7.4.b.1.G.1. lists only ground cover species, 
not woody species. The references should be made to CSR 38-2-
7.4.b.1.H., tree species and compositions. In response, we agree that 
the citations are incorrect. As discussed above in Finding B.10.b., we 
have identified the citation errors, and have required that the West 
Virginia program be further amended to correct the errors.
    The USFWS stated that it sees no reason for the authorization at 
CSR 38-2-7.4.b.1.H.4. that conifers, instead of hardwoods, may be 
planted on southwest-facing slopes greater than 10% or areas where the 
soil pH is less than 5.5. The USFWS stated that hardwoods do very well 
on slopes greater than 10% and with soil pH less than 5.5. The proposed 
rule does not prohibit the planting of hardwoods (commercial species) 
on southwest-facing slopes, but merely limits areas where conifers may 
be planted. Generally, hardwoods grow best on northern-facing slopes. 
The optimum medium for tree growth has been demonstrated to have a pH 
of between 5.0 and 6.0. Conifers grow best in soil with a pH of less 
than 5.5. We agree that many hardwoods in the State are growing on 
slopes greater than 10%. While the proposed rule does not prohibit the 
planting of hardwoods on steep slopes, it is recommended that hardwoods 
be restricted to less than 10% slopes to allow for improved harvesting 
and because the soil in these areas will be loosely compacted to 
maximize tree growth and productivity.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to 
solicit comments and obtain the written concurrence of the EPA with 
respect to those provisions of the proposed 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.). By letter dated April 10, 2000, we requested 
comments and concurrence from EPA (Administrative Record No. WV-1151) 
on the State's proposed amendment of March 14, 2000 (Administrative 
Record Number WV-1147) and March 28, 2000 (Administrative Record Number 
WV-1148), and electronic mail dated April 6, 2000 (Administrative 
Record Number WV-1149).
    By letter dated June 21, 2000, the EPA responded and stated that it 
has reviewed the proposed revisions and has determined that they comply 
with the Clean Water Act. The EPA further stated that its review 
indicates that the proposed revisions do not appear to relate to air 
emissions or other issues which EPA would regulate under the Clean Air 
Act. Therefore, the EPA concurred with the proposed revisions.
    In addition, the EPA provided comments and recommendations on 
several concerns regarding potential water quality impacts. EPA also 
noted that in a number of places the State provisions indicate that 
they are intended to comply with the Consent Decree between WVDEP and 
the Plaintiff in Civil Action No. 2:98-0636. The EPA stated that it is 
not a party to that Consent Decree. Accordingly, the EPA stated its 
comments are not intended and should not be construed as a 
determination by EPA as to whether any particular provision does or 
does not comply with the referenced Consent Decree.
    EPA submitted several comments, including comments on the standards 
applicable to AOC variance operations with a postmining land use of 
commercial forestry and forestry at CSR 38-2-7.4, and postmining land 
use of homestead at CSR 38-2-7.5. We will address EPA's comments which 
concern the homestead postmining land use at CSR 38-2-7.5. in a 
separate Federal Register notice at a later date. The remainder of 
EPA's comments are addressed below.
    1. Applicable State and Federal laws/regulations--The EPA stated 
that there are a number of Federal and State statutes and regulations 
protective of air and/or water quality which may apply to commercial 
forestry. The EPA recommended that the regulations governing each 
postmining land use include a statement that activities performed in 
connection with the

[[Page 50426]]

postmining use must comply with all applicable State and Federal laws 
and regulations.
    In response, we agree that the State regulations governing each 
postmining land use could be improved by including a statement that the 
provisions must comply with all applicable State and Federal laws and 
regulations. However, there is nothing in the new commercial forestry 
provisions that precludes or prohibits compliance with all applicable 
State and Federal laws and regulations. Therefore, the lack of such a 
statement in the State's commercial forestry provisions does not render 
the new provisions less effective than the Federal regulations.
    2. AOC variances--The EPA stated that in general, its concerns with 
AOC variances are that they limit the amount of spoil placed back on 
mined areas and usually necessitate the creation or expansion of valley 
fills which cover biologically productive waters of the United States. 
Therefore, the EPA stated, it believes that the use of AOC variances 
should be minimized, and it strongly recommended that any necessary 
variances be scrutinized in order to determine: (1) Whether all 
practicable alternatives to the discharge have been evaluated pursuant 
to EPA's Section 404(b)(1) guidelines; (2) whether spoil disposal in 
valley fills has been minimized to the extent compatible with those 
uses; and, (3) whether the project complies with all applicable 
regulations, including the buffer zone regulations.
    For the most part, EPA's comments concerning AOC do not relate 
directly to any of the specific amendments to the West Virginia program 
being addressed in this notice. Rather, the EPA's comment relates to 
the general concept of AOC variances, and the regulatory authority's 
role in reviewing and approving proposed variances. It should be noted, 
however, that the State's reference to its AOC policy at CSR 38-2-
7.4.b.1.D.10. should ensure compliance with the State's AOC variance 
requirements, which in turn should satisfy the concerns listed above by 
EPA.
    3. Erosion and sedimentation control--The EPA stated that the 
State's requirements for commercial forestry are very comprehensive and 
appear to include ample conditions for promoting successful tree 
growth. However, the EPA stated, it has concerns about possible 
excessive erosion and runoff at commercial forestry sites. Although 
section CSR 38-2-7.4.b.1.G.1. of HB 4223 requires a temporary erosion 
control vegetative cover until a permanent tree cover is established, 
CSR 38-2-7.4.b.1.E. requires mine spoil to be placed loosely in a non-
compacted manner in order to provide a porous growing base for trees. 
Also, the EPA stated, CSR 38-2-7.5.j.6.B. indicates that at homestead 
sites, regrading and reseeding may take place only on those rills and 
gullies which are unstable. We note that a similar provision exists in 
the commercial forestry provisions at CSR 38-2-7.4.b.1.G.3. While it is 
understood, the EPA stated, that porous soil must be provided for 
effective tree growth, the requirement of uncompacted backfills, as 
well as unseeded rills and gullies, appear to increase the potential 
for sediment runoff and resulting stream degradation during storm 
periods. The EPA recommended consideration of options to avoid such 
situations, including limiting uncompacted areas to just the areas 
immediately around the tree plantings, maintaining effective 
sedimentation control ponds below these areas, and providing extensive 
vegetative cover in all areas except directly adjacent to tree 
plantings.
    In response, and as noted above in Finding B.10.b., CSR 38-2-
7.4.b.1.G.1. provides that on slopes less than 20 percent, the Director 
of the WVDEP may approve lesser or no erosion control vegetative cover 
when tree growth and productivity will be enhanced and excessive 
sedimentation will not result. In addition, CSR 38-2-7.4.b.1.I.2. only 
requires 70 percent ground cover where there is the potential for 
excessive erosion on slopes greater than 20 percent.
    Temporary vegetation does to some extent compete with tree species 
during the early growing seasons. However, such vegetative cover is 
essential to ensure soil stability and prevent erosion. 30 CFR 816.114 
requires that mulch and other soil stabilizing practices be used to 
protect the topsoil and topsoil substitutes even prior to the 
establishment of the temporary vegetative cover. In addition, the 
Federal regulations at 30 CFR 816.95(a) require that all exposed 
surface areas be protected and stabilized to effectively control 
erosion and air pollution attendant to erosion.
    We have determined that, as proposed, CSR 38-2-7.4.b.1.G.1. and 
7.4.b.1.I.2. are less effective than the Federal requirements at 30 CFR 
816.42, 816.95(a), 816.111, and 816.114. To be no less effective than 
the Federal requirements, the Director can only be allowed to approve 
lesser or no vegetative cover on slopes less than 20 percent when mulch 
or other soil stabilizing practices have been used to protect all 
disturbed areas and it has been demonstrated that the reduced 
vegetative cover is sufficient to control erosion and air pollution 
attendant to erosion. We have required the deletion of the word 
``excessive,'' from the proposed State rule at CSR 38-2-7.4.b.1.G.1 to 
ensure compliance with State water quality requirements at CSR 38-2-
14.5.b. and required the State to amend its rules at CSR 38-2-
7.4.b.1.G.1 to provide that lesser or no vegetative cover may only be 
authorized by the Director when mulch or other soil stabilizing 
practices have been used to protect all disturbed areas and it has been 
demonstrated that the reduced vegetative cover is sufficient to control 
erosion and air pollution attendant to erosion regardless of slope. 
Furthermore, we are not approving and requiring the State to amend CSR 
38-2-7.4.b.1.I.2 to delete the phrase, ``where there is potential for 
excessive erosion on slopes greater than 20 percent.''
    CSR 38-2-7.4.b.1.G.3. only authorizes the regrading and reseeding 
of rills and gullies that are unstable. Normally, the presence of 
unstable rills and gullies indicates that excessive erosion has already 
occurred. The Federal regulations at 30 CFR 816.95(b) require the 
regrading of all rills and gullies that disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the receiving 
stream. Therefore, we have approved CSR 38-2-7.4.b.1.G.3. only to that 
extent. In addition, in accordance with 30 CFR 816.95(b) and 816.111, 
we have required the State to revise CSR 38-2-7.4.b.1.G.3 to require 
the repair of all rills and gullies that disrupt the approved 
postmining land use or the establishment of vegetative cover or cause 
or contribute to a violation of water quality standards for the 
receiving stream.
    4. AOC definition change--The EPA stated that section 22-3-3(c) of 
SB 614 changes the requirement for achieving AOC from ``disturbed'' 
areas to ``mined'' areas. Since the overall area disturbed during a 
mining operation is greater than just the area where coal extraction 
takes place, the EPA stated that it is concerned that this change 
reduces the area subject to AOC.
    In response, as discussed above in Finding A.1., the amended phrase 
is identical to, and therefore no less effective than, the counterpart 
language in SMCRA at section 701(2), and the Federal definition of AOC 
at 30 CFR 701.5.
    5. Bond release water quality criteria--The EPA stated that 
sections 22-3-23(c)(2) and (c)(2)(C) of SB 614

[[Page 50427]]

state that bond release for approval of AOC variances may be made where 
the quality of the untreated postmining water discharged is better than 
or equal to the pre-mining water quality discharged from the mining 
site. The EPA noted that there may be instances where provisions of the 
Clean Water Act (CWA) would apply to the discharge of the untreated 
postmining water. In such instances, compliance with section 22-3-
23(c)(2) would not relieve the discharger from compliance with any 
applicable provisions of the CWA.
    In response, and as discussed above in Finding A.3., we did not 
approve the language at section 22-3-23(c)(2)(C) which is of concern to 
the EPA. Under that language, bond could be released where the quality 
of the water being discharged from the reclaimed mine site does not 
meet effluent limitations and applicable State and Federal water 
quality standards as required by section 519(c) of SMCRA and 30 CFR 
816.42 and 817.42. Therefore, we found that the language is less 
stringent than SMCRA and less effective than the Federal regulations 
and can not be approved.

Public Comments

    We solicited public comments on the amendment. One person responded 
with comments. The commenter stated that at section 22-3-23(c)(2)(C) of 
the W.Va. Code, the new bond release provision would allow bond release 
for operations with an approved AOC variance where the quality of 
postmining water discharges is better than or equal to the quality of 
premining discharges. The commenter stated that this provision is less 
stringent than SMCRA at section 519(c)(2) which, by cross reference to 
section 515(b)(10) requires postmining discharges to meet effluent 
limitations of State and Federal law. We agree with this comment. As 
noted above at Finding A.3., we did not approve this provision because 
discharges from mine sites must meet effluent limitations and 
applicable State and Federal water quality laws at all times and all 
reclamation requirements of SMCRA must be fully met prior to final bond 
release. In addition, we have also required that the West Virginia 
program be further amended to delete the disapproved provision.
    CSR 38-2-7.4.a.1. The commenter stated that the new rule at section 
38-2-7.4.a.1. would allow commercial forestry and forestry to be 
approved as ``higher or better'' postmining land uses on areas of 
permits granted variances from AOC. The commenter stated that the 
provision should not be approved because it is inconsistent with 
Congressional intent, as expressed in the OSM's draft postmining land 
use (PMLU) policy guidelines for mountaintop removal and steep slope 
mining operations seeking a variance from the AOC requirements. We 
disagree with this comment. We maintain that the commercial forestry 
and forestry use, as proposed by the State, is an acceptable postmining 
land use for mountaintop removal operations as provided in section 
515(c)(3) of SMCRA and can satisfy the Federal ``higher or better'' use 
criteria at 30 CFR 701.5 and 30 CFR 816.133. However, we agree that, as 
presented, this postmining land use does not satisfy the postmining 
land use requirements for a steep slope mining operation with a 
variance from AOC at section 515(e)(2) of SMCRA.
    The commenter stated that, as clarified on page 3, paragraph 2 of 
the Introduction (I.A.) of the draft October 1999, PMLU policy 
guidelines, any specific PMLU will, with rare exceptions, be approved 
only where the use could not be achieved without a waiver of the AOC 
requirement. Commercial forestry and forestry, the commenter asserted, 
can be achieved on the premining landscape. In response, we note that 
the commenter has inaccurately paraphrased the draft October 1999, PMLU 
guidelines. In addition, in response to public comment we revised this 
language in the PMLU final policy that was released on June 23, 2000. 
The final PMLU policy guidelines states, at page 1, section I.A., that, 
``a postmining land use cannot be approved where the use could be 
achieved without waiving the AOC requirement, except where it is 
demonstrated that a significant public or economic benefit will be 
realized therefrom.'' We removed the words, ``in those rare instances'' 
from the draft language. These words were deleted to clarify that a 
decision concerning whether or not to approve a proposed PMLU should 
not be narrowly focused on whether or not the proposed use could be 
achieved on the premining land or on land returned to AOC. Rather, the 
focus of whether or not to approve a proposed PMLU should be on whether 
or not the proposed PMLU represents a significant public or economic 
benefit when compared with the premining use. This is consistent with a 
plain reading of SMCRA at section 515(c)(3)(A). Therefore, the 
possibility that forestry can be conducted on premining steep slope 
lands or on lands returned to AOC, would not of itself disqualify a 
proposed use from being approved as a PMLU for mountaintop removal 
operations. Instead, this possibility must be considered by the 
regulatory authority as part if its assessment of whether or not the 
proposed PMLU represents a significant public or economic benefit when 
compared with the premining use. This is the assessment that must be 
made by the regulatory authority prior to permit approval.
    The commenter also stated that gently rolling contours do not 
enhance the growth and harvesting of commercial species, and would not 
accept such an assertion unless the State provides technical 
documentation applicable to the appropriate forest types. In response, 
the State's landscape criteria at CSR 38-2-7.4.b.1.C.1. do require a 
rolling and diverse landscape and it is generally agreed that 
harvesting of commercial tree species on gently rolling slopes is 
easier, safer, and less expensive than harvesting which is conducted on 
steep slopes. In addition, this provision is in accordance with SMCRA 
at section 515(c)(2) which provides that the State regulatory authority 
may only grant a permit for mountaintop removal mining operations 
where, among other requirements, the permittee will create a level 
plateau or a gently rolling contour with no highwalls remaining, and 
capable of supporting the proposed postmining use.
    The commenter stated that to be approvable, a proposed PMLU must 
represent or require intensive management in order to qualify for an 
AOC variance. We disagree with this comment. The decision that a 
regulatory authority must make is not whether or not a proposed PMLU 
requires intensive management but, as required by SMCRA at section 
515(c)(3)(A), whether a proposed PMLU represents a public or economic 
benefit when compared with the premining use. If a proposed PMLU is a 
low-intensity use, the regulatory authority must take particular care 
to assess the proposed use to determine whether or not the use 
represents a public or economic benefit when compared with the 
premining use. For example, a proposed low-intensity agricultural use 
of pastureland, where only a few cattle will be grazing on the proposed 
PMLU area is unlikely to provide an economic benefit to the public or 
the landowner when compared with the premining use. However, a proposed 
pastureland use that would support a dairy operation with 150 head of 
cattle would likely yield significant economic benefit to the landowner 
and the community. In that same sense, a premining forest that is 
occasionally harvested for timber may be compared to a proposed 
commercial

[[Page 50428]]

forestry PMLU. Even though it may be argued that a commercial forestry 
operation is not a high-intensity use, it may be considered by the 
regulatory authority and land use planning agencies to be an economic 
or public benefit when compared to the premining use. Such a use may be 
deemed to represent a higher or better use (as is required by 30 CFR 
816.133(c)) because of anticipated increased yields of higher quality 
timber, more jobs for timber management and harvesting, or the 
potential for creating sustainable wood product industries such as the 
manufacturing of hardwood flooring or fine hardwood furniture.
    CSR 38-2-7.3.c. The commenter stated that the first sentence 
concerning the prohibition of grassland uses should be approved. As 
noted above in Finding B.9., we have approved this prohibition. The 
commenter also stated that the second sentence, which delays the 
implementation of this provision until OSM approves the proposed 
forestry and homestead provisions should not be approved. The commenter 
based this comment on the assertion that forestry cannot be approved as 
a PMLU for mountaintop removal mining operations. We disagree with this 
comment. As discussed above in Finding B.10.a., commercial forestry can 
be approved as a PMLU for mountaintop removal mining operations. We 
have recognized forestry as an agricultural PMLU use since 1983 
(September 1, 1983; 48 FR at 39893), and agricultural PMLU is 
authorized by SMCRA at section 515(c)(3) as a PMLU for mountaintop 
removal operations. Of course, to be in compliance with SMCRA section 
515(c) and the implementing Federal regulations, prior to approving any 
PMLU, the regulatory authority must consult with land use planning 
agencies to determine whether the proposed PMLU will result in a net 
public or economic benefit when compared with the premining use. 
Therefore, if the applicable requirements of SMCRA and Federal 
regulations are met, commercial forestry may be approved as a PMLU for 
mountaintop removal mining operations. Also, the continued use of 
grassland as a PMLU until OSM approves commercial forestry and 
homesteading as PMLU's is not inconsistent with section 515(c)(3) of 
SMCRA, since that provision allows grassland as an agricultural PMLU 
for mountaintop removal mining operations.
    CSR 38-2-7.4.b.1.K. The commenter stated agreement with this 
provision which requires the WVDEP to undertake a future investigation 
of all commercial forestland permits to determine the success of the 
program and to make changes if indicated. We concur with this comment.
    The commenter also stated that it isn't clear whether or not the 
requirement would apply outside AOC-variance areas. In response, CSR 
38-2-7.4. pertains only to AOC variance operations with a PMLU of 
commercial forestry and forestry. However, scientific data and evidence 
gained from monitoring productivity, biodiversity, and hydrologic 
functions on both the AOC and non-AOC portions of permits with AOC 
variances will most likely benefit other operations throughout the 
State.
    Finally, the commenter asked whether the WVDEP would still have 
right of entry ten years after Phase III bond release. In response, 
under SMCRA at section 517(b)(3), the regulatory authority has right of 
entry to any permitted or unpermitted surface coal mining and 
reclamation operation. At the time of final bond release, the WVDEP 
usually terminates jurisdiction. It will be up to the State, in these 
situations, to determine what special provisions must be made in the 
forest management plans or lease agreements to allow State officials 
and other researches access to these sites after final bond release to 
conduct the required studies. However, there is no counterpart to the 
provision in SMCRA, and we have approved the provision because it is 
not inconsistent with the requirements of SMCRA.
    The commenter had additional comments concerning CSR 38-2-7.5, the 
Homestead PMLU. As noted above in the second paragraph of Section III, 
we have separated from this amendment the Homestead PMLU provisions at 
CSR 38-2-7.5. We will render our findings on new CSR 38-2-7.5 in a 
separate final rule notice to be published in the Federal Register, and 
will address the commenter's statements concerning CSR 38-2-7.5 at that 
time.

V. Director's Decision

    Based on the findings above, and except as noted below, we are 
approving the amendments to the West Virginia program.
    Section 22-3-13(c)(3) of the W. Va. Code is approved to the extent 
that the term ``public facility (including recreational uses)'' is 
interpreted to mean the same as the SMCRA term ``public facility 
(including recreational facilities).'' In addition, most of the 
required amendment codified at 30 CFR 948.16(iiii) is satisfied and can 
be deleted. However, we are continuing to require at (iiii), that the 
State amend the term ``recreational uses'' at W.Va. Code 22-3-13(c)(3) 
to mean ``recreational facilities use'' at SMCRA section 515(c)(3).
    Section 22-3-23(c)(2) of the W. Va. Code is approved except that 
the proviso at subsection (c)(2)(C) which states, ``Provided, however, 
That the release may be made where the quality of the untreated 
postmining water discharged is better than or equal to the premining 
water quality discharged from the mining site'' is not approved. We are 
requiring that the West Virginia program at section 22-3-23(c)(2)(C) be 
further amended to delete the proviso concerning bond release if the 
quality of postmining untreated discharge water is better than or equal 
to the premining water quality discharged from the site.
    CSR 38-2-2.31.b. must be amended to clearly define forestry to mean 
a postmining land use used or managed for the long term production of 
wood or wood products in accordance with the Federal definition of 
``forestry'' under the definition of ``land use'' at 30 CFR 701.5.
    CSR 38-2-3.25.b. must be further amended to: (1) provide that in no 
event can a reinstated permit be approved in advance of the close of 
the public comment period; and (2) add the word ``reinstatement'' to 
the phrase ``transfer, assignment, or sale'' in the second sentence of 
CSR 38-2-3.25.a.4.
    CSR 38-2-7.4.a.1. is approved only to the extent that it applies to 
mountaintop removal mining operations that receive an AOC variance 
pursuant to W.Va. Code 22-3-13(c). We are requiring that the West 
Virginia program be further amended to make it clear that at CSR 38-2-
7.4.a.1., only commercial forestry postmining use and not forestry 
postmining use may be approved for areas receiving a variance from the 
AOC requirements.
    CSR 38-2-7.4.b.1.A. is approved only to the extent that it 
supplements, but does not supersede, the existing mountaintop removal 
permitting requirements and performance standards at W.Va. Code 22-3-
13(c) and CSR 38-2-14.10; and to the extent that the use of best 
management practices at CSR 38-2-7.4.b.1.A.4.(e) will be limited to 
postmining timber harvesting practices conducted after final bond 
release and not as a substitute for the sediment control practices 
required at CSR 38-2-5.4 during mining and reclamation activities. 
Moreover, the termination of jurisdiction portion of CSR 38-2-
7.4.b.1.A.1. is approved, but only to the extent that the State also 
applies the reassertion of jurisdiction

[[Page 50429]]

requirements in its program at CSR 38-2-1.2.d. to these sites.
    At CSR 38-2-7.4.b.1.C.5., the phrase, ``except for ponds and 
impoundments located below the valley fills'' is not approved. We are 
requiring the State to either remove the phrase, ``except for ponds and 
impoundments located below the valley fills,'' from CSR 38-2-
7.4.b.1.C.5 or revise the language to clarify that ponds and 
impoundments below the fill that are left in place must meet the 
requirements of CSR 38-2-5.5.
    At CSR 38-2-7.4.b.1.D.2, we are not approving the phrase, ``except 
for those areas with a slope of at least 50%.'' We are requiring the 
State to delete the phrase ``except for those areas with a slope of at 
least 50%'' from its regulations at CSR 38-2-7.4.1.D.2. Furthermore, we 
are requiring the State to define the terms O and Cr soil horizons.
    CSR 38-2-7.4.b.1.D.6. must be further amended to provide that the 
substitute material is equally suitable for sustaining vegetation as 
the existing topsoil and the resulting medium is the best available in 
the permit area to support vegetation.
    CSR 38-2-7.4.b.1.D.10. is approved with the understanding that the 
design and construction requirements set forth in CSR 38-2-3.7 and 38-
2-14.14 for the disposal of excess spoil must also be satisfied.
    CSR 38-2-7.4.b.1.E. is approved to the extent that these provisions 
do not supersede the State's general backfilling and grading 
requirements at CSR 38-2-14.15.a.
    At CSR 38-2-7.4.b.1.G.1., the word ``excessive'' is not approved. 
We are requiring the deletion of the word ``excessive'' at CSR 38-2-
7.4.b.1.G.1. We are also requiring that CSR 38-2-7.4.b.1.G.1. be 
further amended to provide that lesser or no vegetative cover may only 
be authorized by the Director when mulch or other soil stabilizing 
practices have been used to protect all disturbed areas and it has been 
demonstrated that the reduced vegetative cover is sufficient to control 
erosion and air pollution attendant to erosion regardless of slope.
    CSR 38-2-7.4.b.1.G.3. is approved only to the extent that it is 
interpreted to require the repair of all rills and gullies that disrupt 
the approved postmining land use or the establishment of vegetative 
cover or cause or contribute to a violation of water quality standards 
for the receiving stream. We are requiring that CSR 38-2-7.4.b.1.G.3. 
be further amended to require the repair of all rills and gullies that 
disrupt the approved postmining land use or the establishment of 
vegetative cover or cause or contribute to a violation of water quality 
standards for the receiving stream.
    CSR 38-2-7.5.b.1.H.2. must be amended to correct a typographical 
error by deleting ``7.4.d.1.G.1.'' in two places and replacing the 
deleted citation with ``7.4.b.1.H.1.''
    At CSR 38-2-7.4.b.1.I., the new stocking standards for commercial 
forestry and forestry are not approved. We are requiring the WVDEP to 
consult with and obtain the approval of the West Virginia Division of 
Forestry on the new stocking standards for commercial forestry and 
forestry at CSR 38-2-7.4.b.1.I.
    At CSR 38-2-7.4.b.1.I.2., we are not approving the phrase, ``where 
there is potential for excessive erosion on slopes greater than 20%.'' 
In addition, CSR 38-2-7.4.b.1.I.2. must be amended to delete the 
phrase, ``where there is potential for excessive erosion on slopes 
greater than 20%.''
    At CSR 38-2-7.4.b.1.I.2., the words ``rock cover'' are not 
approved. We are requiring that the words ``rock cover'' be deleted 
from CSR 38-2-7.4.b.1.I.2.
    CSR 38-2-7.4.b.1.I.2. must be amended to correct the citation error 
by deleting ``7.4.d.1.G.1.'' and replacing the deleted citation with 
``7.4.b.1.H.1.''
    At CSR 38-2-7.4.b.1.I.3. the phrase ``or, if a commercial forestry 
mitigation plan is submitted to the Director, approved, and completed'' 
is not approved.
    At CSR 38-2-7.4.b.1.I.4., the requirement to pay twice the 
remaining bond amount is approved to the extent that payment of the 
civil penalty will not allow an operator to receive final bond release. 
We are not approving the remainder of CSR 38-2-7.4.b.1.I.4. concerning 
in-kind mitigation plan.
    CSR 38-2-7.4.b.1.I.5. is approved only to the extent that the 
provision does not affect the responsibility period or other bond 
release requirements.
    CSR 38-2-7.4.b.1.J. is approved to the extent that the proposed 
State standards are in addition to the excess spoil disposal 
requirements at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 and apply 
to all fills, including valley fills.
    At CSR 38-2-14.12.a.1., the term ``commercial forestry'' is not 
approved. We are requiring the State to remove the term ``commercial 
forestry'' from CSR 38-2-14.12.a.1.
    The required program amendment codified at 30 CFR 948.16(www) is 
satisfied and can be deleted.
    The required program amendment codified at 30 CFR 948.16(xxx) is 
satisfied and can be deleted.
    The required program amendment codified at 30 CFR 948.16(vvv)(1)(1) 
can be deleted.
    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.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, 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

[[Page 50430]]

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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget 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 regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

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 28, 2000.
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:

PART 948--WEST VIRGINIA

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

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


    2. Section 948.12 is amended by adding new paragraph (b) to read as 
follows.


Sec. 948.12  State statutory, regulatory, and proposed program 
amendment provisions not approved.

* * * * *
    (b) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on March 14, 2000, March 
28, 2000, and April 6, 2000:
    (1) The proviso at W.Va. Code 22-3-23(c)(2)(C) which concerns Phase 
III bond release where the quality of the untreated postmining water 
discharged is better than or equal to the premining water quality 
discharged from the mining site.
    (2) At CSR 38-2-7.4.b.1.C.5., the phrase, ``except for ponds and 
impoundments located below the valley fills.''
    (3) At CSR 38-2-7.4.b.1.D.2, the phrase, ``except for those areas 
with a slope of at least 50%.''
    (4) At CSR 38-2-7.4.b.1.G.1., the word ``excessive.''
    (5) At CSR 38-2-7.4.b.1.I., the new stocking standards for 
commercial forestry and forestry.
    (6) At CSR 38-2-7.4.b.1.I.2., the phrase, ``where there is 
potential for excessive erosion on slopes greater than 20%.''
    (7) At CSR 38-2-7.4.b.1.I.2., the words ``rock cover.''
    (8) At CSR 38-2-7.4.b.1.I.3., the phrase ``or, if a commercial 
forestry mitigation plan is submitted to the Director, and approved and 
completed.''
    (9) The portion of CSR 38-2-7.4.b.1.I.4. concerning in-kind 
mitigation plans.
    (10) At CSR 38-2-14.12.a.1., the term ``commercial forestry.''
* * * * *

    3. Section 948.15 is amended by adding a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                      Date of publication of
        Original amendment submission date                  final rule                Citation/description
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
March 14, 2000, March 28, 2000, and April 6, 2000.  August 18, 2000...........  W.Va. Code 22-3- at 3(e),
                                                                                 (u)(2); (y); 13(c)(3)
                                                                                 (qualified approval),
                                                                                 (c)(3)(B)(iii); 23(c)(1), (2)
                                                                                 (partial approval). CSR 38-2-
                                                                                 at 2.31, 2.45, 2.98, 2.123,
                                                                                 2.136; 3.8c; 3.25; 7.2.i; 7.3;
                                                                                 7.4.a (qualified approval):
                                                                                 7.4.b.1; 7.4.b.1.A. (qualified
                                                                                 approval), 7.4.b.1.B., C.
                                                                                 (partial approval), D. (partial
                                                                                 approval), E. (qualified
                                                                                 approval), F., G. (partial
                                                                                 approval), H., I. (partial
                                                                                 approval), J. (qualified
                                                                                 approval), K.; 14.15.f.
----------------------------------------------------------------------------------------------------------------


    4. Section 948.16 is amended by removing and reserving paragraphs 
(www), and (xxx), revising paragraphs (vvv)(1) and (iiii), and adding 
paragraphs (qqqq) through (eeeee) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *

[[Page 50431]]

    (vvv) * * *
    (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 the requirements to restore the land to approximate 
original contour.
* * * * *
    (iiii) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend the term ``recreational 
uses'' at W.Va. Code 22-3-13(c)(3) to mean ``recreational facilities 
use'' at SMCRA section 515(c)(3).
* * * * *
    (qqqq) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to delete the proviso from W. 
Va. Code 22-3-23(c)(2)(C) which provides that Phase III bond can be 
released if the quality of postmining untreated discharge water is 
better than or equal to the premining water quality discharged from the 
site.
    (rrrr) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-2.31.b. to 
clearly define forestry to mean a postmining land use used or managed 
for the long term production of wood or wood products in accordance 
with the Federal definition of forestry under the definition of land 
use at 30 CFR 701.5.
    (ssss) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-3.25 to: (1) 
add the word ``reinstatement'' to the phrase ``transfer, assignment, or 
sale'' in the second sentence of subdivision CSR 38-2-3.25.a.4., and 
(2) amend 38-2-3.25.b. to provide that in no event can a reinstated 
permit be approved in advance of the close of the public comment 
period.
    (tttt) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to make it clear that at CSR 38-
2-7.4.a.1., only commercial forestry postmining use and not forestry 
postmining use may be approved for areas receiving a variance from the 
AOC requirements.
    (uuuu) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to either remove the phrase, 
``except for ponds and impoundments located below the valley fills,'' 
from its regulations at CSR 38-2-7.4.b.1.C.5 or revise the language to 
clarify that ponds and impoundments below the fill that are left in 
place must meet the requirements of CSR 38-2-5.5.
    (vvvv) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to delete the phrase ``except 
for those areas with a slope of at least 50%'' from its regulations at 
CSR 38-2-7.4.1.D.2. Furthermore, the State must define the terms O and 
Cr soil horizons.
    (wwww) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-7.4.b.1.D.6. 
to provide that the substitute material is equally suitable for 
sustaining vegetation as the existing topsoil and the resulting medium 
is the best available in the permit area to support vegetation.
    (xxxx) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to: (1) delete the word 
``excessive'' at CSR 38-2-7.4.b.1.G.1.; and (2) provide that at CSR 38-
2-7.4.b.1.G.1., lesser or no vegetative cover may only be authorized by 
the Director when mulch or other soil stabilizing practices have been 
used to protect all disturbed areas and it has been demonstrated that 
the reduced vegetative cover is sufficient to control erosion and air 
pollution attendant to erosion regardless of slope.
    (yyyy) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to amend CSR 38-2-
7.4.b.1.G.3. to require the repair of all rills and gullies that 
disrupt the approved postmining land use or the establishment of 
vegetative cover or cause or contribute to a violation of water quality 
standards for the receiving stream.
    (zzzz) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-7.4.b.1.H.2. 
by deleting ``7.4.d.1.G.1.'' in two places and replacing the deleted 
citation with ``7.4.b.1.H.1.''
    (aaaaa) By October 17, 2000, West Virginia WVDEP must consult with 
and obtain the approval of the West Virginia Division of Forestry on 
the new stocking standards for commercial forestry and forestry at CSR 
38-2-7.4.b.1.I.
    (bbbbb) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-7.4.b.1.I.2., 
or otherwise amend the West Virginia program, to delete the phrase, 
``where there is potential for excessive erosion on slopes greater than 
20%.''
    (ccccc) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-7.4.b.1.I.2. 
to delete the words ``rock cover.''
    (ddddd) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-7.4.b.1.I.2. 
to correct the citation error by deleting ``7.4.d.1.G.1.'' and 
replacing the deleted citation with ``7.4.b.1.H.1.''
    (eeeee) By October 17, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to delete the term ``commercial 
forestry'' at CSR 38-2-14.12.a.1.
[FR Doc. 00-20800 Filed 8-17-00; 8:45 am]
BILLING CODE 4310-05-P