[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80308-80329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32428]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-086-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 concerning Homestead postmining land 
use. 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: December 21, 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

[[Page 80309]]

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.
    To expedite our review of the amendment, we separated the amendment 
into two parts: (1) Amendments to the proposed rules at new section CSR 
38-2-7.5 concerning ``homesteading'' as a postmining land use for 
mountaintop removal mining permits that meet the requirements for a 
variance from the approximate original contour (AOC) provisions at 
section 22-3-13(c) of the W.Va. Code. These provisions are the subject 
of this notice; and (2) Changes to the W.Va. Code in Senate Bill 614 
and the regulatory changes at CSR 38-2-7.4 concerning commercial 
forestry postmining land use for mountaintop removal mining operations 
receiving an AOC variance, and various other regulatory changes. We 
published our final decision on those amendments in the Federal 
Register on August 18, 2000 (65 FR 50409).

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.
    1. CSR 38-2-7.5  Homestead land use.
    This subsection is new and contains the following subdivisions.
    7.5.  The Homestead land use meets the requirements for a variance 
from the AOC requirements of the Act (W.Va. Code 22-3-13(c)). An 
appropriately planned Homestead will promote sustainable settlement 
patterns that protect the environment and support the region's economic 
development.
    7.5.a.  Operations receiving a variance from AOC for this use shall 
establish homesteading on at least one-half (\1/2\) of the permit area. 
The remainder of the permit area shall support an alternate AOC 
variance use.
    The W.Va. Code at section 22-3-13 contains the general 
environmental protection performance standards for surface mining 
operations. Specifically, subdivision 13(c)(2) authorizes the Director 
of the WVDEP to grant approval of AOC variances for mountaintop removal 
mining operations. Subdivision 13(c)(3) identifies the following 
postmining land uses that are approvable for mountaintop removal mining 
operations: industrial, commercial, agricultural, commercial forestry, 
residential, public facility including recreational uses. Homestead is 
considered to be a ``residential'' postmining land use under W. Va. 
Code 22-3-13(c). It is important to note that Homestead is limited to 
mountaintop removal mining operations, and does not apply to steep 
slope mining operations with AOC variances as provided in section 22-3-
13(e) of the W.Va. Code and CSR 38-2-14.12.a.1.
    SMCRA at section 515(c)(3) and the Federal regulations at 30 CFR 
784.14(c)(1) provide for the following postmining land uses for 
mountaintop removal operations: industrial, commercial, agricultural, 
residential, and public facility (including recreational facilities). 
The Federal regulations define ``residential'' under the definition of 
``land use'' at 30 CFR 701.5 to mean, ``land used for single- and 
multiple-family housing, mobile home parks, or other residential 
lodgings.'' In a similar fashion, the State regulations at CSR 38-2-
7.2.d define residential use to be single and multiple-family housing 
(other than apartment houses) with necessary support facilities. 
Support facilities may include commercial services incorporated in and 
comprising less than five percent (5%) of the total land area of 
housing capacity, associated open space and minor vehicle parking and 
recreation facilities supporting the housing.
    The proposed Homestead postmining land use is a residential use as 
defined at 30 CFR 701.5. Therefore, we find that the introductory 
language at CSR 38-2-7.5 which states that Homestead postmining land 
use meets the requirements for a variance from the AOC requirements of 
the W.Va. Code at 22-3-13(c) to be no less stringent than section 
515(c)(3) of SMCRA and no less effective than the Federal regulations 
at 30 CFR 785.14(c)(1) and 701.5 and can be approved. We note that 
prior to authorizing ``homestead'' as a postmining land use for a 
mountaintop removal mining operation, the applicant must submit 
specific plans and assurances and the State regulatory authority must 
approve them in accordance with the requirements of W.Va. Code 22-3-
13(c)(3) and CSR 38-2-14.10, and 14.12 to the extent that it applies to 
mountaintop removal mining operations. Therefore, and except as noted 
below, we are approving the use of Homestead as a postmining land use 
as provided at CSR 38-2-7.5. to the extent that it supplements or is 
more stringent than existing State requirements, but is not 
inconsistent with any existing Federal program requirements.
    There is no Federal counterpart to the new language at CSR 38-2-
7.5.a. concerning the percentage of the AOC variance land that must 
contain either the Homestead or an alternate AOC variance postmining 
land use. We find that this provision is not inconsistent with SMCRA or 
the Federal regulations and can be approved.
    2. CSR 38-2-7.5.b. This provision defines the terms that are 
applicable only to homestead land use. This subdivision provides the 
following.
    7.5.b. The following terms are applicable only to this subsection 
of this rule.
    7.5.b.1. Building Pad means an accessible, designated, and properly 
drained area where the soil and/or mine-spoil has been specially placed 
and compacted to minimize post-mining surface settlement. After the 
building pad is completed, a registered professional engineer shall 
certify that the building pad was constructed as designed. This 
certification shall accompany the deed of conveyance.
    7.5.b.2. Civic Parcel means a parcel designated in the Land Plan 
for public use.
    7.5.b.3. Commercial Parcel means a parcel retained by the Landowner 
of

[[Page 80310]]

record and incorporated within the Homestead Area on which the 
landowner or its designee may develop commercial uses. The size and 
location of commercial parcels shall comply with the requirements of 
this regulation.
    7.5.b.4. Community Association means an association of all the 
homesteaders. This association shall receive title to the civic 
parcels, conservation easements and nurseries at the time of final bond 
release.
    7.5.b.5. Conservation Easement means an area, typically a strip no 
less than 200 feet wide, designated in the land plan for the purpose of 
establishing a natural habitat for the development and migration of 
native species of fauna and flora. These easements shall extend through 
the mined areas of the land, starting and ending in natural, 
undisturbed land. These areas shall be permanent easements maintained 
for conservation and not commercial purposes.
    7.5.b.6. Entity Administering The Civic Parcels means the Community 
Association or its designee shall administer the civic parcels.
    7.5.b.7. Escrow Agent means the Attorney General of the State of 
West Virginia shall be the Escrow Agent.
    7.5.b.8. Homesteader means a citizen of the State that fulfills the 
requirements of this regulation and who is selected by lottery to 
reside on a designated homestead parcel.
    7.5.b.9. Homestead Area means the entire area designated for 
homestead use, including roads.
    7.5.b.10. Homestead Infrastructure means the facilities necessary 
to sustain residential use, including roads, electricity, telephone, 
water and sewage or septic systems.
    7.5.b.11. Homestead Parcel means an individual segment of a 
homestead area designated as either a rural or village parcel. The 
permittee shall assure that each parcel has been surveyed by a licensed 
land surveyor before Phase I bond release.
    7.5.b.12. Homestead Plan means all the required documentation, 
engineered drawings, authorizations, agreements and schedules which are 
to be submitted and approved by the Director.
    7.5.b.13. Homestead Selection Lottery means a lottery sanctioned by 
the State, operated under rules established and administered by the 
Director or the Director's designee as soon as practicable after Phase 
I bond release.
    7.5.b.14. Landowner Of Record means the surface estate owner at the 
time the mining permit is submitted to the Director. More than one 
Landowner of Record may be involved in a Homestead Plan. The Landowner 
of Record shall transfer the title to the surface estate of the 
Homestead Area to the Escrow Agent prior to the beginning of mining. 
The cost of transfer shall be paid by the Landowner of Record.
    7.5.b.15. Land Plan means the depiction, with supporting 
documentation, including surveys and narratives, of the homestead 
parcels, building pads, roads, easements, civic parcels, commercial 
parcels, and other features of the Homestead Area.
    7.5.b.16. Machine Passable Grade means the maximum grade that can 
be safely accommodated by commonly used, self-propelled, rubber-tired 
farming equipment.
    7.5.b.17. Rural Parcels means homesteading parcels planned to 
promote rural uses such as farming, orchard growing, timber management, 
viticulture, and Morret gardening. The rural parcels shall be an 
appropriate size for the designated use and may be up to 40 acres. 
Rural homesteaders may receive title only to that portion of the land 
that they have improved over the five-year period.
    7.5.b.18. Service Drop means the overhead service conductors from 
the last pole or other aerial support to and including the splices, if 
any, connecting to the service-entrance conductors at the building or 
other structure.
    7.5.b.19. Service-Entrance Conductors, Overhead System means the 
service conductors between the terminals of the service equipment and a 
point usually outside the building, clear of building walls, where 
joined by tap or splice to the service drop.
    7.5.b.20. Service-Entrance Conductors, Underground System means the 
service conductors between the terminals of the service equipment and 
the point of connection to the service lateral.
    7.5.b.21. Service Lateral means the underground service conductors 
between the street main, including any risers at a pole or other 
structure or from transformers, and the first point of connection to 
the service-entrance conductors in a terminal box or meter or other 
enclosure with adequate space, inside or outside the building wall. 
Where there is no terminal box, meter, or other enclosure with adequate 
space, the point of connection shall be considered to be the point of 
entrance of the service conductors into the building.
    7.5.b.22. Soil Plan means the maps and descriptions of premining 
and postmining soil included in the Homestead Plan.
    7.5.b.23. Village Parcels means homesteading parcels that provide a 
higher density of residential population than rural parcels.
    There are no specific counterparts to these definitions. We find 
that, except as noted below, the definitions are not inconsistent with 
SMCRA at section 515(c)(3) or the Federal regulations at 30 CFR 
785.14(c)(1) concerning the approval of AOC variances for proposed 
postmining land use for mountaintop removal mining operations and can 
be approved.
    The definition of ``Commercial Parcel'' at CSR 38-2-7.5.b.3. 
provides that ``Commercial Parcel'' means a parcel retained by the 
landowner of record and incorporated within the Homestead area on which 
the landowner or its designee may develop commercial uses. In addition, 
the size and location of commercial parcels shall comply with the 
requirements of this regulation. Under this definition, therefore, a 
commercial postmining land use may be incorporated within the Homestead 
postmining land use. SMCRA at section 515(c)(3) and the Federal 
regulations at 30 CFR 785.14(c)(1) provide that commercial postmining 
land use may be approved for mountaintop removal mining operations. 
Therefore, the incorporation of a commercial postmining land use within 
a homestead (residential) postmining land use does not render the West 
Virginia program less stringent than SMCRA nor less effective than the 
Federal regulations and can be approved. However, since the language of 
this provision states that the landowner ``may'' develop a parcel for 
commercial purposes, it is not clear what must be done if a landowner 
retains a parcel but does not develop that parcel for commercial uses. 
Therefore, we are requiring that CSR 38-2-7.5.b.3. be amended to 
clarify that parcels retained by the landowner for commercial 
development and incorporated within the Homestead area must be 
developed for commercial uses as provided by subsection CSR 38-2-
7.5.g.5.
    The definition of ``Conservation Easement'' at CSR 38-2-7.5.b.5. 
allows the creation of natural habitat areas within the Homestead 
postmining land use. Conservation easements are to comprise at least 10 
percent of the Homestead area, including commercial parcels. Neither 
SMCRA at section 515(c)(3) nor the Federal regulations at 30 CFR 
785.14(c)(1) specifically authorize conservation easements or the 
creation of natural habitat areas as approvable postmining land uses 
for mountaintop removal mining operations. However, such natural areas 
may play a supporting role in the

[[Page 80311]]

developmental plans of a proposed postmining land use that is 
approvable under SMCRA and the Federal regulations. This is consistent 
with the Federal regulations at 30 CFR 816.97 which encourages the 
enhancement of fish and wildlife in postmining land uses. Specifically, 
30 CSR 816.97(i) provides that where residential, public service, or 
industrial uses are to be the postmining land use, and where consistent 
with the approved postmining land use, the operator shall intersperse 
reclaimed lands with green belts utilizing species of grass, shrubs and 
trees useful as food and cover for wildlife. As explained under the 
definition of ``Conservation Easement,'' the use of natural habitat 
areas plays an appropriate supporting role in the Homestead postmining 
land use. Therefore, we find CSR 38-2-7.5.b.5. to be no less stringent 
than SMCRA and no less effective than the Federal regulations and can 
be approved.
    The definition of ``Homestead Area'' means the entire area 
designated for homestead use, including roads. As discussed above at 
Finding 1., Homestead postmining land use is a residential postmining 
land use that qualifies for an AOC variance for mountaintop removal 
mining operations under SMCRA section 515(c)(3) and the Federal 
regulations at 30 CFR 785.14(c)(1). The definition of ``Homestead 
Area'' as meaning the entire area designated for homestead use, 
including roads is therefore also consistent with the Federal 
``residential'' postmining land use. Therefore, we find that the 
definition of ``Homestead Area'' is consistent with and no less 
stringent than SMCRA section 515(c)(3) and the Federal regulations at 
30 CFR 785.14(c)(1) and can be approved.
    The definition of ``Rural Parcels'' at CSR 38-2-7.5.b.17. means 
homesteading parcels planned to promote rural uses such as farming, 
orchard growing, timber management, viticulture (grape growing), and 
Morret gardening. We note that the term ``Rural Parcels'' includes 
``timber management'' use as one of the uses that are promoted for 
these rural parcels. Timber management should not be confused with the 
``commercial forestry and forestry'' postmining land use for AOC 
variances for mountaintop removal mining operations that we recently 
approved (65 FR 50409). Homesteading postmining land use, which is a 
residential use under SMCRA section 515(c)(3) and 30 CFR 785.14(c)(1), 
is an approvable postmining land use. Timber management is one of many 
uses to which the homeowners of the rural Homestead parcels may develop 
their land. In addition, the size of each rural parcel can be up to 40 
acres, and the homesteaders may receive title only to that portion of 
the land that they have improved over the five-year period. Therefore, 
we find that the definition of ``Rural Parcels'' is not inconsistent 
with SMCRA section 515(c)(3) nor with the Federal regulations at 30 CFR 
785.14(c)(1) and can be approved. In addition, we recommend that the 
West Virginia program be amended to define the term ``Morret 
gardening.''
    3. CSR 38-2-7.5.c. This provision concerns the eligibility 
requirements and responsibilities for homesteaders. This subdivision 
provides as follows.
    7.5.c.Eligibility Requirements And Responsibilities For 
Homesteaders;
    7.5.c.1. Homesteader shall meet the following eligibility 
requirements:
    7.5.c.1.A. Be a resident of the State of West Virginia and be at 
least 18 years old;
    7.5.c.1.B. Apply for a homestead as required by this rule;
    7.5.c.1.C. Abide by the rules of the Homestead Selection Lottery;
    7.5.c.1.D. Reside on the subject parcel within 12 months after the 
property is certified as ready for use. Provided that subject to the 
approval of the Escrow Agent, occupancy may be delayed up to 6 
additional months for good cause shown.
    There are no Federal counterparts to the provisions at CSR 38-2-
7.5.c. concerning eligibility requirements and responsibilities for 
homesteaders. However, we find that they are not inconsistent with 
SMCRA or the Federal regulations and can be approved.
    4. CSR 38-2-7.5.d. This provision concerns the rules for the 
homestead lottery. This subdivision contains the following 
requirements.
    7.5.d. Rules For The Lottery;
    7.5.d.1. The rules for the Lottery are as follows:
    7.5.d.1.A. Each household may receive no more than one homestead.
    7.5.d.1.B. Homestead parcels shall be distributed by anonymous 
lottery.
    7.5.d.1.C. For any given Homestead, the lottery shall first be 
opened only to West Virginians living within three (3) miles of the 
permitted area within five years of the date of the filing of the 
permit application. Provided, however, that if parcels remain after an 
initial lottery, subsequent lotteries shall be held in the following 
order. The first subsequent lottery shall be open to any resident of a 
county (or counties, if more than one) in which the mine is located. 
Further, lotteries, if necessary, shall be open to any resident of West 
Virginia, and shall be held at six (6) month intervals.
    7.5.d.1.D. The lottery shall be held as soon as practicable after 
Phase I bond release is approved. Adequate notice shall be provided at 
least six (6) months in advance of the lottery.
    7.5.d.1.E. The lottery shall be fair, impartial, and open to the 
public.
    7.5.d.1.F. A lottery participant who receives a parcel may decline 
a parcel, but may not sell the right to homestead on the parcel.
    7.5.d.1.G. The right to participate in the lottery is not 
assignable or saleable.
    7.5.d.1.H. Each lottery participant shall, before the lottery, 
apply for either a rural or a village parcel.
    There are no Federal counterparts to the provisions at CSR 38-2-
7.5.d. concerning rules for a lottery. However, we find that they are 
not inconsistent with SMCRA or the Federal regulations and can be 
approved.
    5. CSR 38-2-7.5.e. This provision concerns the homestead plan 
development. This subdivision contains the following requirements.
    7.5.e. Homestead Plan Development.
    7.5.e.1. The Director may authorize Homesteading as a post-mining 
use only if the following conditions have been satisfied.
    7.5.e.1.A. The Homestead Plan and any subsequent modifications 
shall be prepared under the direction of and certified by a 
professional engineer, a soil scientist, and a design professional that 
is either a licensed architect, landscape architect, or AICP certified 
land planner. [Note: AICP means American Institute of Certified 
Planners].
    7.5.e.1.B. The Homestead Plan shall identify each member of a 
specialty group that contributed to the plan. The Plan shall be 
sufficiently detailed to ensure success in achieving the designated use 
of each homestead panel [sic] and to ensure sound future management of 
the homestead.
    7.5.e.1.C. Homestead plan may be used alone or in conjunction with 
any other alternate land use plan. The Homesteading area, minus 
commercial parcels, shall occupy at least 50% of the permitted area. In 
the event that the Homestead use is used in conjunction with another 
land use, the Landowner of Record shall provide for the Homestead use 
at least as much land on the mining bench as it retains for alternate 
land use.
    7.5.e.1.D. The Permittee shall submit plans prepared at a preferred 
scale of at least 1 inch = 200 feet, which include the following:
    7.5.e.1.D.1. A Land Plan showing the homestead boundaries, 
homestead

[[Page 80312]]

parcels, building pads, roads, easements, civic parcels, and commercial 
parcels, as applicable.
    7.5.e.1.D.2. A Site Plan and description of the following:
    7.5.e.1.D.2.(a) wastewater and sewage systems,
    7.5.e.1.D.2.(b) potable water supply,
    7.5.e.1.D.2.(c) non-potable water supply (if applicable).
    7.5.e.1.D.2.(d) electrical service, and
    7.5.e.1.D.2.(e) telephone service.
    7.5.e.1.D.3. A grading plan showing contours at an interval 
appropriate for the map scale and slopes, and including surface 
drainage and stormwater provisions. The Director shall require maps at 
specific scales and contour intervals to satisfy the designated uses of 
the homestead parcels and the land plan.
    7.5.e.1.D.4. A map showing all off-bench fill areas and the outcrop 
of the lowest coal bed.
    7.5.e.1.D.5. A Soil Plan showing soil and weathered spoil storage 
areas. The plan shall describe the methods to be used to distribute, 
protect, and enhance the stored material upon final regrading of the 
disturbed surfaces. The plan shall identify the proposed depths of soil 
and subsoil for each specific use within the Homestead Area. These 
specific uses may include, but shall not be limited to, the following:
    7.5.e.1.D.5.(a) Haul roads;
    7.5.e.1.D.5.(b) Conservation Easements;
    7.5.e.1.D.5.(c) Building Pads;
    7.5.e.1.D.5.(d) Garden Plots;
    7.5.e.1.D.5.(e) Waste Water and Sewage Disposal Facilities;
    7.5.e.1.D.5.(f) Storm Drainage Facilities;
    7.5.e.1.D.5.(g) Wetland Facilities;
    7.5.e.1.D.5.(h) Utility Easements;
    7.5.e.1.D.5.(I) Civic/Public Facilities;
    7.5.e.1.D.5.(j) Commercial Areas;
    7.5.e.1.D.6. Soil maps.
    SMCRA at section 515(c)(3)(B), and the Federal regulations at 30 
CFR 785.14(c), like W.Va. Code 22-3-13(c)(3), 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-
2-7.5.e. provide detailed requirements concerning the specific plans 
that must be submitted for a Homesteading postmining land use. 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. The new 
subdivisions at 7.5.e.1.D.3. and D.5. require the submittal of a 
grading plan (7.5.e.1.D.3.) and a soil plan (7.5.3.1.D.5.). However, 
these new requirements do not make it clear that the permittee must 
also submit maps, cross sections and operations plans that comply with 
CSR 38-2-3.4, 3.5, and 3.6. Therefore, we find that the provisions at 
CSR 38-2-7.5.e. are no less stringent than SMCRA nor less effective 
than the Federal regulations and can be approved to the extent that its 
provisions supplement, but do not supersede, the approved State 
provisions concerning maps and cross sections, and operation plans at 
CSR 38-2-3.4, 3.5, and 3.6.
    6. CSR 38-2-7.5.f. This subdivision concerns the provisions for 
financial commitments. This subdivision contains the following 
requirements.
    7.5.f. Financial Commitments.
    7.5.f.1. A contract between the Permittee and the Director, binding 
the Permittee to complete the homestead use as soon as practicable but 
no later than two years after the completion of mining, shall be 
required.
    7.5.f.2. The contract between the Permittee and the Director shall, 
at a minimum, require the Permittee to follow the homesteading 
reclamation plan.
    7.5.f.3. To receive approval for a homestead use, the Permittee 
shall demonstrate that it has the financial capability to achieve the 
use and carry out the reclamation plan. The Permittee shall submit 
signed statements containing financial information and data sufficient 
to demonstrate that the Permittee has the financial capability to 
achieve the homesteading use.
    7.5.f.4. Before approving the Permit, the Director shall find, in 
writing, that the Permittee has the financial capability to achieve the 
use.
    We find that the provisions at CSR 38-2-7.5.f. are consistent with 
SMCRA section 515(c)(3)(B)(v), and the Federal regulations at 30 CFR 
785.14(c)(1)(iii)(E) which require an applicant for a mountaintop 
removal permit provide appropriate assurance that the proposed 
postmining land use is practicable with respect to private financial 
capability for completion of the proposed use. In addition, new CSR 38-
2-7.5.f.1. is consistent with 30 CFR 816.133(c)(3)(iii), which provides 
that a proposed alternative postmining land use may be approved if, 
among other requirements, the regulatory authority finds that the 
proposed use will not ``Involve unreasonable delay in implementation.'' 
Compliance with 30 CFR 816.133(a) through (c) is required by 30 CFR 
824.11(a)(4). Therefore, the new provisions at CSR 38-2-7.5.f. can be 
approved. We note that W.Va. Code section 22-3-13(c)(3), concerning 
mountaintop removal mining operations, provides that the Director of 
the WVDEP must make other written findings in addition to a finding 
concerning financial capability to achieve the proposed postmining land 
use. Therefore, we are approving CSR 38-2-7.5.f. to the extent that 
compliance with W.Va. Code section 22-3-13(c)(3) is also required.
    7. CSR 38-2-7.5.g. This provision concerns the required elements 
for all homestead plans and contains the following requirements.
    7.5.g. Required Elements For All Homestead Plans.
    7.5.g.1. Boundary of the homestead area:
    7.5.g.1.A. The Homestead Area shall be defined by a metes and 
bounds description prepared and certified by a Professional Engineer or 
Licensed Land Surveyor registered with the State of West Virginia.
    7.5.g.1.B. Non-mined areas may be included in the Homestead Area.
    7.5.g.1.C. In the event that any portion of the land transferred to 
the Escrow Agent is not mined, that land may revert to the Landowner of 
Record.
    7.5.g.2. General Requirements of all Parcels:
    7.5.g.2.A. Each individual parcel shall be delineated by metes and 
bounds description prepared by a Professional Engineer or Licensed Land 
Surveyor registered with the State of West Virginia.
    7.5.g.2.B. Parcels shall support their designated land uses.
    7.5.g.2.C. Parcels shall be configured and arranged to minimize 
adverse environmental impacts.
    7.5.g.2.D. The Permittee shall provide adequate road frontage for 
access to each Homestead, Public Nursery, Civic and Commercial Parcel.
    7.5.g.2.E. Houses and appurtenant facilities shall be no closer 
than 50 feet from the edge of a designated Conservation Easement.
    7.5.g.3. Homestead parcels:
    7.5.g.3.A. Homestead Parcels shall be designated as either rural or 
village parcels. All parcels shall contain machine passable land 
appropriate to the designated use.
    7.5.g.3.B. Each rural homestead parcel shall be provided with a 
garden area of at least 5,000 square feet. Each village homestead 
parcel shall be provided with a garden area of at least 600 square

[[Page 80313]]

feet. The garden areas shall be constructed in compliance with the soil 
requirements set forth in subdivision 7.5.j. of this rule.
    7.5.g.3.C. Each rural and village homestead parcel shall contain a 
building pad of a minimum of 2,500 square feet for a dwelling. Each 
rural homestead parcel shall also contain a building pad of a minimum 
of 2,500 square feet for an outbuilding.
    7.5.g.4. Civic Parcels:
    7.5.g.4.A. The Homestead Plan shall delineate one or more 
appropriate sites within the total proposed Homestead area for Civic 
Parcels. These uses may include, but are not limited to, the following: 
park land, playing fields, schools, post office, and community 
administrative facilities. This area shall occupy at least 10% of the 
post-mining permit area.
    7.5.g.4.B. The Civic Parcels may be one contiguous parcel or 
appropriately sized non-contiguous parcels.
    7.5.g.4.C. The Civic Parcels shall be deeded at no charge to the 
duly recognized Community Association.
    7.5.g.4.D. The Civic Parcels shall be provided with an access road 
and utilities that are consistent with the proposed civic land use.
    7.5.g.5. Commercial Parcels:
    7.5.g.5.A. The Landowner of Record may elect to retain up to 15% of 
the land in the proposed Homestead Area for the purpose of commercial 
development; provided that the Landowner of Record may retain no more 
than 50% of the permitted area.
    7.5.g.5.B. The retained commercial area may be comprised of one or 
more parcels and shall be indicated on the Land Plan.
    7.5.g.5.C. In the area for the Commercial Parcel the mine-spoil 
shall be placed, compacted, and regraded in a manner consistent with 
the proposed commercial land use.
    7.5.g.6. Approval:
    7.5.g.6.A. Before approving a homesteading reclamation plan, the 
Director shall assure that Homestead Plan is reviewed and approved by 
either a licensed architect, landscape architect, or AICP certified 
land planner employed by or under contract to the Director. In 
addition, the Director shall assure that the plans for Rural Parcels 
are reviewed and approved by an agronomist employed by or under 
contract with the Director. The applicants shall pay for any review 
under this subsection.
    There are no direct Federal counterparts to the provisions at CSR 
38-2-7.5.g. We find that the new provisions are not inconsistent with 
section 515(c)(3)(B) of SMCRA which provides that the applicant must 
provide specific plans for the proposed postmining land use, and can be 
approved. However, these provisions are only approved to the extent 
that compliance with the State's approved postmining land use 
requirements at CSR 38-2-7 is also required. We note that the term 
``Public Nursery'' as used at subdivision CSR 38-2-7.5.g.2.D. is not 
defined. For clarity, we recommend that the State add a definition of 
this term.
    8. CSR 38-2-7.5.h. This subdivision concerns the construction and 
conveyance of homestead parcels, and contains the following 
requirements.
    7.5.h. Construction And Conveyance Of Homestead Parcels. All 
construction projects not performed by the homesteaders on Homestead 
Areas shall be performed by the Permittee, using a West Virginia 
licensed contractor.
    7.5.h.1. Stabilization of the Homestead Area:
    7.5.h.1.A. The Homestead Plan shall describe the methods that will 
be used during the placement of mine spoil to minimize mine spoil 
consolidation and its associated ground settlement, where such 
settlement will adversely affect the use of the homestead. Conditions 
relating to the placement of structures on the mine-spoil shall be 
clearly identified in the Plan.
    7.5.h.1.B. The Plan must delineate the areas on each parcel where 
the mine-spoil will be placed in a manner to minimize post-mining land 
surface settlement on Building Pads, roads and other appropriate areas.
    7.5.h.1.C. The placement methodology shall be specified by a 
qualified engineer. The Plan shall indicate the type and style of 
structure appropriate for each building pad. The Plan shall include the 
requirement that a professional engineer will monitor the construction 
of the building pads to certify compliance with the specifications of 
the plan.
    7.5.h.2. Construction Of The Building Pad:
    7.5.h.2.A. Building Pads shall be designed by a registered 
professional engineer.
    7.5.h.2.B. The registered professional engineer shall supervise the 
placement of the uppermost 20 feet of spoil for Building Pads to 
minimize consolidation.
    7.5.h.2.C. The engineer shall certify the integrity of the Building 
Pad and that the Building Pads will not settle more than \1/2\ inch 
after the expected structure is in place.
    7.5.h.2.D. Building Pads shall be designed to accommodate the type 
of building expected to be placed on the pad.
    7.5.h.2.E. Building Pads shall not be placed on valley fills.
    7.5.h.3. Conveyance Of Homestead Parcels:
    7.5.h.3.A. Estimated short and long-term costs to Homesteaders 
shall be designated in the Homestead Plan and presented to Homesteaders 
immediately after the Lottery on a parcel specific basis.
    7.5.h.3.B. The rights to the surface estate shall be deeded to each 
Homesteader free and clear of all liens and encumbrances as soon after 
bond release as the Escrow Agent determines that the property is ready 
for use. The deeds shall not retain right of entry onto the homestead 
parcels to conduct future surface mining activities.
    7.5.h.3.C Consistent with State and federal law, the transfer of 
the surface to the Escrow Agent may be for surface rights only and need 
not include any minerals, oil or gas and shall be subject to usual and 
customary mining or extraction rights.
    7.5.h.3.D. Before receiving the Homestead Parcel, each homesteader 
shall:
    7.5.h.3.D.1. Install and reside in a dwelling whose structure 
complies with the Homestead Plan community association rules, and all 
applicable local, county and state laws;
    7.5.h.3.D.2. Reside on the parcel for at least forty-five weeks 
each year for five (5) consecutive years prior to receipt of title to 
the land;
    7.5.h.3.D.3. Use and improve the parcel by completing a dwelling 
that complies with this rule, installing an approved septic system and 
maintaining vegetative cover on all parts of the homestead parcel and 
plant trees from the Public Nursery in accordance with subdivision 
7.5.l.4. of this rule.
    7.5.h.3.E. In the event extreme hardship causes a homesteader to be 
forced to sell his property before the five-year occupancy period has 
expired, the Escrow Agent shall convey title early. The Escrow Agent's 
determination of extreme hardship shall be reasonable by the Circuit 
Court of County in which the homestead parcel is located.
    There are no direct Federal counterparts to the provisions at CSR 
38-2-7.5.f. However, we find that the new provisions are not 
inconsistent with section 515(c)(3)(B) of SMCRA which provides that the 
applicant must provide specific plans for the proposed postmining land 
use. We note, however, that there is an apparent editorial error at 
subdivision 7.5.h.2.B. Subdivision 7.5.h.2.B. provides that the 
registered

[[Page 80314]]

professional engineer shall supervise the placement of the uppermost 20 
feet of spoil for Building Pads to ``minimize'' compaction. The term 
``minimize'' should be ``maximize.'' The new rules at both CSR 38-2-
7.5.b.1. and 7.5.j.4.A. clearly require that the mine soil under 
Building Pads must be properly compacted. Without such compaction, the 
settlement standard for Building Pads at CSR 38-2-7.5.h.2.C. would not 
be achievable. Therefore, we are approving new CSR 38-2-7.5.h. to the 
extent that subdivision 7.5.h.2.B. means that consolidation of the 
uppermost 20 feet of spoil for Building Pads must be maximized. 
Further, we recommend that the editorial error be corrected to clarify 
this apparent contradiction, otherwise, it may not be possible to 
achieve the homestead postmining land use.
    9. CSR 38-2-7.5.i. This subdivision concerns required 
infrastructure, and contains the following requirements.
    7.5.i. Required Infrastructure.
    7.5.i.1. Roads:
    7.5.i.1.A. The Land Plan shall designate an all-weather road 
connecting the Homestead Area to a public road or highway. The road 
shall meet State Department of Highways' standards, and shall be 
certified as safe for passenger car traffic by registered professional 
engineer.
    7.5.i.1.B. The Land Plan shall incorporate adequate road frontage 
to all parcels. Such roads shall be designated in the plan and referred 
to as ``main roads.'' Main roads shall meet State Department of 
Highways standards, and shall be certified as built as safe for 
passenger car traffic by registered civil engineer.
    Before the Director may approve a surface mining application for 
this use, the County or State road authority shall conditionally agree 
to accept responsibility for maintaining the all-weather and main roads 
after mining is complete.
    7.5.i.1.C. The Land Plan shall provide an entrance from the main 
road to each parcel, complete with culvert as needed. The Homesteader 
shall be responsible for extending the driveway from the entrance to 
the building pad.
    7.5.i.2. Wastewater And Sewage:
    7.5.i.2.A. The Homestead Plan shall incorporate a wastewater and 
sewage disposal plan conditionally approved by the Director, the West 
Virginia Bureau of Public Health or the public health authority of the 
county. The wastewater/sewage disposal system shall be approved by the 
appropriate entities before Phase II bond release shall be authorized. 
No such approval may be granted unless the system meets local health 
department standards.
    7.5.i.2.B. A variety of wastewater and sewage disposal systems, 
including individual septic systems, may be proposed. Alternative/
innovative systems shall be consistent with all State and federal 
regulations. The reclamation, topsoiling, grading, and revegetation 
plan of each parcel shall be designed to accommodate the proposed 
wastewater/sewage system.
    7.5.i.2.C. The Homestead Plan shall provide a functional wastewater 
and sewage system for each Civic, Commercial or Homestead Parcel. The 
system shall describe an approved hookup/cleanout point no more than 50 
feet from such homestead and civic Building Pads.
    7.5.i.2.D. Each Homesteader shall be responsible for all costs 
incurred to connect structures on the Homestead parcel to the 
wastewater and sewage system. Additionally, if necessary, each 
homesteader shall be responsible for all costs incurred to install an 
individual septic system.
    7.5.i.2.E. The entity administering the Civic Parcel shall be 
responsible for all costs incurred to connect structures on the Civic 
Parcel to the wastewater and sewage system.
    7.5.i.2.F. The Homestead Plan shall describe the maintenance and 
upkeep demands of any proposed sewage disposal system, and shall 
designate the entity responsible for such maintenance. Phase III bond 
release may not be approved until the designated entity has accepted 
responsibility for such maintenance.
    7.5.i.3. Water Supply:
    7.5.i.3.A. The Homestead Plan shall include a potable water supply 
source or sources adequate for each Homestead Parcel. The supply of 
water shall be provided by one of the following methods in the 
following order of priority: a) water piped from an existing public 
water supply; b) from wells; or c) from reservoirs with catchment 
basins adequate to supply the homestead area. Before authorizing any 
system of potable water supply that is not piped from an existing water 
supply, the Director shall find, in writing, that the higher order 
methods of delivery of potable water are not feasible. The Director may 
rely on the sewers if an appropriate Public Health Authority.
    7.5.i.3.B. The Permittee shall establish and pay for the potable 
water supply system.
    7.5.i.3.C. The water shall be delivered at a constant rate and at 
water industry accepted pressure and flow.
    7.5.i.3.D. The Homestead Plan shall describe the future maintenance 
of the water supply system. If the water system is public, the plan 
shall designate the entity responsible for its upkeep. Homesteaders may 
be required to pay a fair market price for the water. Homesteaders 
shall not be charged for water from their own individual well, although 
Homesteaders shall be responsible for maintenance of their own wells.
    7.5.i.3.E. Individual supply systems shall, at a minimum, meet all 
applicable health standards, comply with all state and federal laws, 
and be approved by the appropriate public health authority. Appropriate 
wellhead protection or watershed protection practices shall be 
incorporated into the Homestead Plan, and shall be protect water from 
potential vulnerability from future land use.
    7.5.i.3.F. The source or sources of potable water must be 
identified within the Homesteading Plan, along with a demonstration of 
the adequacy of quantity and quality. Upon completion of the 
reclamation plan, the Permittee shall install and demonstrate the 
quality and adequacy of the supply. If the originally proposed water 
supply system proves to be inadequate or unsuitable, the Permittee 
shall immediately make application with the Director for approval of 
alternate supplies or adequate improvements to the water supply system. 
The resulting improvements and/or alternate supplies shall comply with 
the requirements in this rule and shall be subject to the approval of 
the appropriate public health authority. Phase I bond release may not 
be approved until the Director finds that the installed water supply 
complies with this rule and applicable State and federal law.
    7.5.i.3.G. The Homestead Plan shall describe a water supply plan 
that is adequate to meet the needs of the Homestead Area. The water 
supply plan shall address the anticipated future land use of the 
Homestead Area, and must be reviewed and approved by the Director and 
the appropriate public health authorities.
    7.5.i.3.H. The potable water supply sources shall meet the Federal 
Primary Drinking Water Maximum Contaminant Level standards. (40 CFR 
141, Subpart B). Verification of such quality shall be provided to the 
appropriate public health authority.
    7.5.i.3.I. The supply source means the contiguous water body or 
contiguous aquifer from which supplies are drawn. If multiple homestead 
unit supplies are withdrawn from the same source, determination of 
water quality of the source shall be made at points that are

[[Page 80315]]

representative of the water that will be withdrawn from the source.
    7.5.i.3.J. The potable water supply shall provide for a minimum 
quantity of 12,500 gallons per month per homestead unit. The supply may 
incorporate one or a combination of sources and storage facilities 
demonstrated to provide an adequate supply for each homestead parcel.
    7.5.i.3.K. If a ground water source is to be used, the plan and the 
confirmation of the installed ground water supply system shall be 
conducted under the direction of a qualified ground water professional. 
The locations of drilled wells shall be consistent with appropriate 
public health requirements.
    7.5.i.3.L. The water supply shall be developed (or extended as 
applicable) free of charge to the homesteader to a point within 50 feet 
of the designated residence and civic parcel construction pads for each 
homestead unit.
    7.5.i.3.M. After initial establishment of compliant water quality 
and quantity, responsibility for maintenance of the water supply shall 
revert to the homesteader or, in the event that the supply is 
community- or publicly-controlled, to the appropriate and capable 
public authority.
    7.5.i.3.N. When the potable water supply is insufficient to meet 
the needs of the proposed use for rural homestead parcels, the 
Homestead Plan shall include nonpotable water supplies for uses that do 
not require potable water. Before approving Phase I bond release, the 
Director shall find that the non-potable water supply is sufficient in 
both quality and quantity for such uses, including agricultural uses. 
The plan for the system shall indicate the provisions that will be 
taken to assure that the potable water supply shall not be compromised. 
The approval of nonpotable water supplies distribution and handling 
system shall be consistent with State and federal law.
    7.5.i.3.O. Each Homesteader shall be responsible for costs incurred 
to connect dwellings to water facilities.
    7.5.i.3.P. The entity administering the civic parcel shall be 
responsible for costs incurred to connect structures on the civic 
parcel to water facilities.
    7.5.i.3.Q. If a reservoir is used, a registered professional 
engineer shall certify its integrity. The engineer shall also certify 
that, taking account of inflow, seepage and evaporation, the reservoir 
will provide the amount of water and water pressure required by the 
Homestead use.
    7.5.i.4. Electrical Utilities:
    7.5.i.4.A. The Homestead Plan shall provide access to electrical 
power for all Homestead Parcels and for all Civic Parcels requiring 
electric power. The quantity of electricity supplied shall be 
sufficient to support the proposed use. Phase II bond release may not 
be approved until all the necessary facilities have been rendered 
operational and extended to a point where the service drop for the 
Homestead or Civic Parcel can be accomplished in no more than one span. 
If a service lateral is proposed, access to electrical power shall be 
deemed to have been satisfactorily provided when the service lateral is 
no more than 50 feet in length. Such electrical power facilities shall 
be designated in the plan and referred to as ``main electrical power 
facilities''.
    7.5.i.4.B. All line work shall conform to the practices of the 
electric power utility servicing the area. The installed main utilities 
and associated equipment shall be conveyed to the electric power 
utility servicing the area.
    7.5.i.4.C. Each Homesteader shall be responsible for all costs 
incurred to install a service drop or service lateral the building 
pads.
    7.5.i.4.D. The entity administering the Civic Parcel shall be 
responsible for all costs incurred to install a service drop or service 
lateral to structures on the Civic Parcel.
    7.5.i.4.E. Each Homesteader shall be responsible for cost of 
electrical service.
    7.5.i.5. Communication Services:
    7.5.i.5.A. The Permittee shall provide access to telephone service 
for all Homestead Parcels and for all Civic Parcels requiring telephone 
service. Phase II bond release may not be approved until access to 
telephone service has been rendered operational and extended to a point 
within 50 feet of the Parcel's building pads. Such telephone or 
equivalent utilities shall be designated in the plan and referred to as 
``main telephone facilities''.
    7.5.i.5.B. All service line work shall conform to the practices of 
the telephone service provider of the area. All line work and 
associated equipment shall be conveyed to the local telephone service 
provider.
    7.5.i.5.C. Each Homesteader shall be responsible for all costs 
incurred to extend and connect main telephone facilities to the 
building pads.
    7.5.i.5.D. The entity administering the Civic Parcel shall be 
responsible for all costs incurred to extend and connect main telephone 
facilities to the Civic Parcels.
    7.5.i.5.E. Each Homesteader shall be responsible for the cost of 
telephone service.
    7.5.i.6. Solid Waste:
    7.5.i.6.A. The Homestead Plan shall contain a plan for the off-site 
disposal of solid waste that is acceptable to the Director and the 
appropriate public health authority.
    7.5.i.7. Surface Drainage And Stormwater:
    7.5.i.7.A. The Homestead Plan shall contain a detailed surface 
drainage pattern and stormwater runoff control plan. This plan shall be 
certified by a registered professional engineer.
    7.5.i.7.B. The surface drainage pattern and stormwater plan shall 
be consistent with a surface drainage pattern that would be found on 
natural topography similar to the post-mining topography proposed in 
the Homestead Plan. The beds of the surface and stormwater drainways 
shall contain material that is as natural as practicable.
    7.5.i.8. Reforested Conservation Easements:
    7.5.i.8.A. The Homestead Plan shall identify areas within the 
Homestead Area reserved for reforested Conservation Easements. These 
areas shall be reforested by the Permittee at no cost to Homesteaders.
    7.5.i.8.B. In the event that an isolated forest patch exists as a 
result of mining activities, the Conservation Easement shall serve as a 
corridor to establish a wind break and a forested connection with the 
isolated forest patch and to facilitate the adequate movement of fauna 
out of and into the isolated forest patch.
    7.5.i.8.C. Conservation Easements may serve the purpose of a 
stormwater management systems. In such case, the technical 
specifications applicable to the design and construction of the storm 
water channels and their associated structures shall be satisfied.
    7.5.i.8.D. Conservation Easement shall compromise [sic] at least 
10% of the Homestead Area, including the Commercial Parcels.
    7.5.i.8.E. The Director shall assure that all areas suitable for 
hardwoods in the Conservation Easement are planted with native 
hardwoods at a rate of 500 seedings per acre in continuous mixtures 
across the conservation easement 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. Plants shall be a minimum of \3/4\" in diameter at breast 
height at planting.
    7.5.i.8.F. Each of the species shall not be less than 10% of the 
total planted composition and at least 75% of the total planted woody 
plant composition shall be from the above list of species. Species 
shall be selected based on their

[[Page 80316]]

compatibility and expected site-specific long-term dynamics.
    7.5.i.8.G. At least 10% of the required number of woody plants 
shall be a planted 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.
    7.5.i.8.H. 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 of 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 this rule. The Director shall 
assure that no Conservation Easement area contains a total of more than 
15% conifers.
    7.5.i.8.I. 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.
    7.5.i.8.J. The Director shall assure that the total planting rate 
of trees and nurse plants is not less than 500 stems per acre.
    7.5.i.9. Perpetual Easements:
    7.5.i.9.A. The Homestead Plan shall describe areas within the 
Homestead reserved for perpetual easements relating to storm water 
management, protection of outslopes and steep slopes, protection of 
water sources, public roads of all kinds, and utilities. These areas 
shall be included within Homesteader's deeded parcels and may have 
permanent development restrictions included within the Homesteader's 
deeds of conveyance.
    7.5.i.9.B. Fill faces shall be placed under perpetual easements 
that prohibit activities that may lead to instability or erodability. 
Trees may be planted on the faces of the fills.
    7.5.i.10. Wetlands: Each Homestead Plan may describe areas within 
the Homestead Area reserved for created wetlands. These created 
wetlands may be ponds, permanent impoundments or wetlands created 
during mining. They may be left in place after final bond release.
    The provisions at CSR 38-2-7.5.i. provide detailed requirements 
concerning infrastructure that must be included in a Homesteading 
postmining land use. 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 infrastructure required to support a Homesteading 
postmining land use. Except as noted below, we find 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, and can be 
approved.
    CSR 38-2-7.5.i.1.B. provides that main roads shall meet State 
Department of Highway standards and shall be certified as built as safe 
for passenger car traffic by a registered civil engineer. However, such 
main roads that meet the definition of road at CSR 38-2-2.59 and 38-2-
4.1 and that are to be retained as part of the postmining land use must 
be designed and constructed to meet the primary road requirements of 
CSR 38-2-4. Therefore, we are requiring WVDEP to amend its program to 
clarify that roads which meet the definition of road at CSR 38-2-2.59 
and 38-2-4.1 and that are to be retained as part of the postmining land 
use must be designed and constructed to meet the primary road 
requirements of CSR 38-2-4. In addition, we are approving CSR 38-2-
7.5.i.1.B. to the extent that the word ``conditionally'' means that the 
County or State road authorities will accept responsibility for 
maintaining the all-weather and main roads after mining and reclamation 
is complete, and the road(s) is built.
    CSR 38-2-7.5.i.2.A. provides that the Homestead Plan shall 
incorporate a wastewater and sewage disposal plan conditionally 
approved by the Director, the West Virginia Bureau of Public Health or 
the public authority of the county. The U.S. Environmental Protection 
Agency (EPA) stated in its comments concerning this provision 
(Administrative Record Number WV-1166) that discharges from any 
wastewater/sewage system must also meet Federal requirements under the 
Clean Water Act, specifically the NPDES permit requirements which are 
implemented by the State Office of Water Resources, WVDEP. The EPA 
recommended, so that there would be no misunderstanding, that either a 
statement to this effect be included in CSR 38-2-7.5.i.2.A., or, a 
statement be included which indicates that disposal systems shall be 
consistent with all State and Federal regulations. We note that there 
is nothing in the new provision which indicates that NPDES permit 
requirements would not be complied with where applicable. However, for 
the sake of clarity, we are approving this provision to the extent that 
the applicable NPDES permit requirements would be complied with.
    CSR 38-2-7.5.i.2.B. provides that a variety of wastewater and 
sewage disposal systems, including individual septic systems, may be 
proposed in the wastewater and sewage disposal plan. The EPA commented 
on this provision and stated that since homestead sites are planned to 
be constructed on somewhat porous backfilled areas, there may be a 
higher potential for leachate to pass relatively unabsorbed through the 
fills to streams, presenting possible high fecal coliform levels and 
associated health risks. The EPA urged close review of this potential 
when considering any proposals for septic tank systems at homestead 
sites. We concur with EPA's recommendation.
    CSR 38-2-7.5.i.3.A. provides that the Director of the WVDEP may 
rely on the sewers ``if an appropriate Public Health Authority.'' It 
appears that the words ``approved by'' are missing from this provision. 
The final sentence should read, ``The Director may rely on the sewers 
if approved by an appropriate Public Health Authority.'' We recommend 
that this provision be amended to correct this editorial omission.
    CSR 38-2-7.5.i.3.H. provides that the potable water supplies shall 
meet the Federal Primary Drinking Water Maximum Contaminant Level 
standards of 40 CFR 141 Subpart B. The EPA stated in its comments 
concerning this provision that ``community water systems as defined by 
40 CFR 141 (those serving 25 or more people or which have 15 or more 
service connections) must also comply with all subparts of 40 CFR 141, 
A. through J.'' The EPA recommended that, to avoid any 
misunderstanding, section CSR 38-2-7.5.i.3.H. should be amended to 
clarify that community water systems must comply with 40 CFR 141 in its 
entirety. Therefore, we are approving this provision to the extent that 
the provisions of 40 CFR 141, A. through J. apply to community water 
systems as defined by 40 CFR 141 (those serving 25 or more people or 
which have 15 or more service connections).
    CSR 38-2-7.5.i.3.Q. provides that if a reservoir is used as a water 
facility, a registered professional engineer shall certify its 
integrity. To be no less effective than the Federal regulations 
concerning permanent impoundments,

[[Page 80317]]

CSR 38-2-7.5.i.3.Q. must also require compliance with the West Virginia 
rules concerning permanent impoundments at CSR 38-2-5.5. Therefore, we 
are approving CSR 38-2-7.5.i.3.Q. only to the extent that all permanent 
impoundments approved for Homestead postmining land use must comply 
with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent impoundments. 
In addition, we are requiring that the West Virginia program be amended 
to require that all permanent impoundments approved for Homestead 
postmining land use must comply with CSR 38-2-3.6.b.1. and 38-2-5.5 
concerning permanent impoundments.
    CSR 38-2-7.5.i.7.A. provides for a detailed surface drainage 
pattern and storm water runoff control plan. The EPA commented on this 
provision and stated that storm water discharges resulting from 
construction of the homestead sites and supporting streets, depending 
on the acreage disturbed, may be subject to Federal National Pollutant 
Discharge Elimination System (NPDES) storm water requirements at 40 CFR 
122.26. The EPA recommended that either a statement to this effect be 
included in section CSR 38-2-7.5.i.7., or a statement be included which 
indicates that storm water discharges shall be consistent with all 
State and Federal regulations. The EPA also recommended that the site 
developers contact the State Office of Water Resources, WVDEP, 
regarding the applicability of storm water regulations for specific 
sites. We note that there is nothing in the new provision which 
indicates that NPDES storm water requirements would not be complied 
with where applicable. However, for the sake of clarity, we are 
approving this provision to the extent that the applicable NPDES storm 
water requirements would be complied with.
    CSR 38-2-7.5.i.8.D. concerns conservation easements. This provision 
contains the word ``compromise.'' It appears that the word should be 
``comprised.'' We recommend that this provision be amended to correct 
this editorial error.
    CSR 38-2-7.5.i.10. concerns wetlands. CSR 38-2-7.5.i.10. should be 
amended to reference CSR 38-2-3.5.d. which requires the submittal of 
cross sectional areas and profiles of all drainage and sediment control 
structures including ponds, impoundments, diversions, sumps, etc. which 
are created during mining and may be left after final bond release. 
Therefore, we are approving CSR 38-2-7.5.i.10. to the extent that the 
permit requirements at CSR 38-2-3.5.d. continue to apply. In addition, 
we are requiring that CSR 38-2-7.5.i.10. be amended to require 
compliance with the permit requirements at CSR 38-2-3.5.d.
    10. CSR 38-2-7.5.j. This subdivision concerns soils, soil placement 
and grading, and contains the following requirements.
    Subdivision 7.5.j. concerns soils, soil placement and grading.
    7.5.j. Soils, Soil Placement And Grading;
    7.5.j.1. General Requirements:
    7.5.j.1.A. Phase I bond release shall not be approved until a soil 
scientist certifies and the Director finds that the soil meets the 
criteria established in this rule and has been placed in accordance 
with this rule.
    7.5.j.1.B. The Homestead Plan shall include a topographic map of 
the permit area, 1:12000 or finer, showing the location of pre-mining 
native solids, weathered slightly-acidic brown sandstone and drainages 
which includes site index for common native tree species. A profile 
description of each soil mapping unit that includes, at minimum, soil 
horizons, including the O. horizon depths, soil texture, structure, 
color, reaction and bedrock type. A certified professional soil 
scientist shall conduct a detailed on-site survey, create the maps, and 
provide the written description of the soils and sandstones.
    7.5.j.1.C. The Homesteading Plan shall include a description of the 
present soils and soil substitutes to be used as the plant medium, and 
a description of the proposed handling, and placement of these 
materials. The handling plan shall include procedures to:
    7.5.j.1.C.1. Protect native soil organisms and the native seed 
pool;
    7.5.j.1.C.2. Include organic debris such as litter, branches, small 
logs, roots and stumps in the soil;
    7.5.j.1.C.3. Inoculate the minesoil with native soil organisms; and
    7.5.j.1.C.4. Increase soil fertility.
    7.5.j.1.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 homesteading.
    7.5.j.2. Landscape Criteria:
    7.5.j.2.A. 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 to reflect the premining irregularities in 
the land. Postmining landform shall provide a rolling topography with 
slopes of between 5% and 15%. 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 10 feet.
    7.5.j.2.B. 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 comply with all requirements 
of this rule, and shall be left in place after final bond release.
    7.5.j.2.C. All ponds and impoundments created during mining shall 
be left in place after bond release and shall comply with all the 
requirements of this rule.
    7.5.j.2.D. The ponds, permanent impoundments, surface water 
channels and wetlands on the Permit Area shall be vegetated on the 
perimeter with at least six native herbaceous specifies 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.
    7.5.j.2.E. The landscape criteria in this rule do not apply to 
valley fills.
    7.5.j.3. Soil:
    7.5.j.3.A. Soil is defined as and shall consist of the O, A, B, C, 
and Cr horizons.
    7.5.j.3.B. The Director shall require the operator to recover and 
use all the soil on the mined area, as shown on the soil maps, except 
for those areas with a slope of at least 50%, and other areas from 
which the applicant affirmatively demonstrates and the Director finds 
that soil cannot reasonably be recovered. The Director shall assure 
that all saved soil includes all of the material from the O and A 
horizons.
    7.5.j.3.C. When the Director determines that available soil volume 
on the permit area is not sufficient to meet the depth requirements, 
selected overburden materials may be used as soil substitutes. Soil 
substitutes shall consist of weathered, slightly acid, brown sandstone 
from within 10 feet of the soil surface if the Director determines that 
such material is available. Material from this layer maybe removed with 
the soil and mixed with the soil in order to meet the depth 
requirement.
    7.5.j.3.D. If the applicant affirmatively demonstrates and the 
Director finds that weathered, slightly acid, brown sandstone from 
within 10 feet of the soil

[[Page 80318]]

surface cannot reasonably be recovered, weathered, slightly acid, brown 
sandstone taken from below 10 feet of the soil surface from anywhere in 
the permit area may be substituted. Materials may be suitable for this 
purpose only if their bulk pH in water is between 5.0 and 7.0. 
Materials with net potential acidity greater than 5 tons of calcium 
carbonate equivalence per 1000 tons may not be used.
    7.5.j.3.E. 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, including pH, total soluble salts, phosphorus, 
potassium, calcium, texture class, acid-base accounting, and other such 
analyses as necessary.
    7.5.j.3.F. The final surface material used on all parts of the 
permit area except roads, building pads, and valley fill faces shall 
consist of a minimum of 4 feet of soil, or a mixture of soil and 
suitable soil substitutes. Homesteading soil depth shall contain at 
least 33% soil. If the applicant affirmatively demonstrate and the 
Director finds, that sufficient weathered slightly acid brown sandstone 
cannot reasonably be recovered from the mined area to satisfy the mine 
soil depth requirement, then up to one quarter of the total volume of 
the minesoil may consist of highly-fractured sandstone, as long as it 
has been demonstrated that the physical and chemical quality of this 
material is suitable.
    7.5.j.3.G. If the applicant does not demonstrate that there is 
sufficient material available on the permit area to satisfy the 
requirements of this rule, then the Director may not authorize a 
Homesteading variance.
    7.5.j.3.H. The Director may require the operator to include as part 
of the minesoil mix organic debris such as forest litter, branches, 
small logs, roots and stumps in the soil to help reseed the native 
vegetation, inoculate the minesoil with native soil organisms and 
increase soil fertility.
    7.5.j.3.I. The Director shall require that soil be removed and 
reapplied in a manner that minimizes stockpiling such that seed pools 
and soil organisms remain biological viable. No more than 10% of the 
available soil, described in the Director's findings, may be placed in 
a long-term stockpile, soil redistribution shall be done within one 
month of soil removal. Except for soil in a long-term stockpile, soil 
shall be stored for less than one month 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 ground cover mixes used for 
reforestation.
    7.5.j.4. Soil Placement And Grading:
    7.5.j.4.A. Except for valley fill faces, building pads, roads, and 
other areas that must be compacted, the Director shall require the 
Permittee to place minesoil loosely and in a non-compacted manner while 
meeting static safety factor requirements. Grading the final surface 
shall be minimized to reduce compaction. Once the material is placed, 
light grading equipment shall be used to grade the tops of 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.
    7.5.j.4.B. 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. Slopes greater than 50% shall be compacted no more is 
necessary to achieve stability and non-erodability.
    7.5.j.4.C. 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. Organic debris such as 
forest litter, logs, and stumps may be left on and in the soil.
    7.5.j.5. Limiting And Fertilizing: The Permittee shall submit a 
liming and fertilizing plan. The Director shall assure that the liming 
and fertilizing plan is appropriate for establishing the ground cover 
vegetation.
    7.5.j.6. Ground Cover Vegetation:
    7.5.j.6.A. The Director shall require the permittee to establish a 
temporary vegetative cover as contemporaneously as practicable with 
backfilling and grading. This cover shall consist of a combination of 
native and domesticated non-invasive cool and warm season grasses and 
other herbaceous vine or shrub species including legume species and 
ericaceious [sic] shrubs. All species shall be slow growing. The ground 
cover vegetation shall be capable of stabilizing the soil from 
excessive erosion. Seeding rates and composition must be in the 
Homestead 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 [sic] lespedeza, all vetches, clovers (except ladino and white 
clover) and other aggressive or invasive species shall not be used. On 
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 specifies: Niagara big 
bluestem (95 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 specifies approved by the Director. Also, a 
selection of at least 3 ericaceous shrub species shall be included in 
the ground cover mix.
    7.5.j.6.B. The Permittee may regrade and reseed only those rills 
and gullies that are unstable.
    7.5.j.7. Front Faces Of Valley Fills:
    7.5.j.7.A. Front faces of valley fills shall be exempt from the 
requirements of this rule except that:
    7.5.j.7.A.1. They shall be graded and compacted no more than is 
necessary to achieve stability and non-erodability;
    7.5.j.7.A.2. No shales may be present in the upper four feet of 
surface material;
    7.5.j.7.A.3. The upper four feet of surface material shall be 
composed of soil and weathered brown sandstone when available, unless 
the Director determines other material is necessary to achieve 
stability;
    7.5.j.7.A.4. The groundcover mixes described in subparagraph shall 
be used unless the Director requires a different mixture.
    7.5.j.7.A.5. Kentucky 31 fescue, serecia [sic] lespedeza, vetches, 
clovers (except ladino and white clover) or other invasive species may 
not be used; and
    7.5.j.7.B. Although not required by this rule, native, non-invasive 
trees may be planted on the faces of fills.
    There are no specific counterparts to the provisions at CSR 38-2-
7.5.j. for Homesteading 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 State regulations at CSR 38-
2-14.10. Except as noted below, we find that CSR 38-2-7.5.j. is no less 
stringent than SMCRA and no less effective than the Federal regulations 
and can be approved.
    CSR 38-2-7.5.j.2.C. provides that all ponds and impoundments 
created during mining shall be left in place after

[[Page 80319]]

bond release and shall comply with all the requirements of this rule. 
In addition to complying with the provisions of CSR 38-2-7.5., all 
ponds and impoundments created during mining and which will be left in 
place following mining must comply with the State permanent impoundment 
rules at CSR 38-2-5.5. Therefore, we are approving CSR 38-2-7.5.j.2.C. 
to the extent that all ponds and impoundments created during mining and 
which will be left in place following mining must comply with the State 
permanent impoundment rules at CSR 38-2-5.5.
    CSR 38-2-7.5.j.2.E. provides that the landscape provisions of CSR 
38-2-j.2. do not apply to valley fills. The use of the term ``valley 
fills'' in this provision does not make it clear that the landscaping 
provisions of CSR 38-2-7.5.j.2. do not apply to any fills, not just 
valley fills. Ponds, permanent impoundments or wetlands cannot be 
allowed on completed fills. Therefore, we are approving CSR 38-2-
7.5.j.2.E. to the extent that the landscape criteria of CSR 38-2-
7.5.j.2. do not apply to any fills.
    CSR 38-2-7.5.j.3.A. defines soil as consisting of the O, A, B, C, 
and Cr horizons. 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. The State rules at 
CSR 38-2-2.125 defines topsoil to mean the A and E 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. The new provisions at subdivision CSR 
38-2-7.5.j.3.A., however, lack a reference to the ``E'' horizon. 
Therefore, we are requiring the State to add ``E'' horizon to CSR 38-2-
7.5.j.3.A.
    The new State provisions at CSR 38-2-7.5.j.3.B. require the 
operator to recover and use the soil on the mined area, as shown on the 
soil maps, except for those areas with a slope of at least 50%, and 
other areas from which the applicant affirmatively demonstrates and the 
Director of the WVDEP finds that soil cannot reasonably be recovered. 
The Federal regulations at 30 CFR 816.22, however, 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 not approving the 
phrase, ``and other areas from which the applicant affirmatively 
demonstrates and the Director of the WVDEP finds that soil cannot 
reasonably be recovered.'' In addition, we are requiring the State to 
delete these phrases from its regulations at CSR 38-2-7.5.j.3.B.
    New CSR 38-2-7.5.j.3.E. provides that, before approving the use of 
soil substitutes, the Director of the WVDEP 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 38-2-7.5.j.3.E. be amended to provide that the soil 
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 38-2-7.5.j.3.H. provides that the Director may require the 
operator to include as part of the soil mix organic debris such as 
forest litter, branches, small logs, roots and stumps in the soil to 
help reseed the native vegetation, inoculate the mine soil with native 
soil organisms and increase soil fertility. 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 
regulations 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 
compliance with the static safety factor (see CSR 38-2-7.5.j.4.A.), we 
find that proposed CSR 38-2-7.5.j.3.H. 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.
    CSR 38-2-7.5.j.4.A. provides that, except for valley fill faces, 
building pads, and other areas that must be compacted, mine soil shall 
be placed loosely and in a non-compacted manner while meeting static 
factor requirements. Subdivision 7.5.j.4.B. provides that soil physical 
quality shall be inadequate if it inhibits water infiltration or 
prevents root penetration or restricts root growth of trees. Slopes 
greater than 50 percent shall be compacted no more than is necessary to 
achieve stability and non-erodability. Subdivision 7.5.j.4.C. provides 
that the soil surface shall be left rough with random depressions 
across the entire surface to catch seed and sediment, and conserve soil 
water. Organic debris such as forest litter, logs, and stumps may 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. The emphasis in the 
State provisions toward minimizing compaction is consistent with the 
requirements at 30 CFR 816.22(d). In addition, the provisions at CSR 
38-2-7.5.j.4.A. require compliance with the static safety requirements 
for stability of the replaced soil. Therefore, we are approving the new 
provisions at CSR 38-2-7.5.j.4. to the extent that these provisions do 
not supersede the

[[Page 80320]]

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).
    SCR 38-2-7.5.j.5 provides for a liming and fertilizing plan. 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. The State must use its technical judgement 
to determine the appropriate rate of fertilizer application. We find 
that the proposed provisions at CSR 38-2-7.5.j.5. are not inconsistent 
with the Federal revegetation standards and can be approved.
    CSR 38-2-7.5.j.6. provides for ground cover vegetation. The Federal 
regulations at 30 CFR 816.111 require that the permittee establish a 
diverse, effective, and permanent vegetative cover that is capable of 
stabilizing the soil from erosion. 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 38-2-7.5.j.6. are not inconsistent with these Federal 
revegetation standards with the following exceptions.
    CSR 38-2-7.5.j.6.A. provides that ground cover vegetation shall be 
capable of stabilizing the soil from excessive erosion. 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 erosion'' 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 erosion,'' there is nothing in new CSR 38-2-7.5.j.6 that 
supersedes or negates the approved State provisions at CSR 38-2-14.5.b. 
concerning effluent limitations. However, under the proposed State 
rule, erosion could be allowed as long as it was not excessive, even 
though the erosion might provide sediment to streams that could violate 
State or Federal water quality standards. CSR 38-2-14.5.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.
    As proposed, CSR 38-2-7.5.j.6.A. is less effective than the Federal 
requirements at 30 CFR 816.111 because the proposed standard to 
stabilize the soil from erosion is modified by the undefined phrase, 
``excessive erosion.'' To be no less effective than the Federal 
requirements, the Director can only be allowed to approve ground cover 
vegetation that is sufficient to control erosion and air pollution 
attendant to erosion. Therefore, we are not approving the word 
``excessive'' in the phrase ``excessive erosion'' at CSR 38-2-
7.5.j.6.A. Furthermore, we are requiring the deletion of the word 
``excessive'' from the State rule at CSR 38-2-7.5.j.6.A. to ensure 
compliance with State water quality requirements at CSR 38-2-14.5.b.
    CSR 38-2-7.5.j.6.B. 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 38-2-7.5.j.6.B. 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-
7.5.j.6.B. be 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.
    The new provisions at CSR 38-2-7.5.j.7. 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 38-2-7.5.j.7. 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 which 
apply to all fills, including valley fills. We are approving new CSR 
38-2-7.5.j.7. 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.
    11. CSR 38-2-7.5.k. This subdivision concerns requirements for 
reclamation maps, and contains the following requirements.
    7.5.k. Requirements For Reclamation Maps. An appropriately scaled, 
``as-built'' topographic map of the Homestead Area shall be prepared 
and submitted as part of the permit application. An identically scaled 
*overlay* map showing the elevation contours at the base of all mined 
areas as well as the original ground contour of all excess mine spoil 
storage areas shall accompany the as-built map. The overlay map shall 
identify all backfilled mine sites and excess mine-spoil storage areas. 
The overlay map shall depict the boundaries of all parcels, areas of 
mine spoil specifically compacted for the placement of structures, 
easements, and areas that the Director may designate for special or 
limited uses. All post-reclamation maps shall be prepared under the 
direction of and certified by a registered professional engineer and 
shall be recorded with the county within one year following the final 
reclamation of the proposed Homestead Area.
    There are no Federal counterparts to the provisions at CSR 38-2-
7.5.k. concerning the requirements for reclamation maps for the 
homestead postmining land use. Except as follows, we find that they are 
not inconsistent with SMCRA or the Federal regulations and can be 
approved. The proposed rule does not require that all maps, including 
``as-built'' or post reclamation maps, be approved by the Director as 
required by CSR 38-2-3.4 and 38-2-3.28.c.
    Therefore, we are approving CSR 38-2-7.5.k. to the extent that any 
as-built or post reclamation maps that depict reclamation which varies 
from that approved by the Director in the permit application shall be 
submitted to and approved by the Director under CSR 38-2-3.28.c.
    12. CSR 38-2-7.5.l. This subdivision concerns homestead village. 
This subdivision contains the following requirements.
    7.5.l. Homestead Village:
    7.5.l.1. Homestead Village: The Homestead Village provides for a 
residential development at a higher density than in rural Homestead 
parcels. The Village is intended to:

[[Page 80321]]

    7.5.l.1.A. Encourage mixed residential and commercial land uses, 
and 7.5.l.1.B. At least 20% of the Homestead Area shall be composed of 
Village parcels.
    7.5.l.2. Village Parcel Requirements:
    7.5.l.2.A. Each Village homestead parcel shall be no larger than 
one acre in size.
    7.5.l.2.B. Each parcel shall have a minimum road frontage of 40 
feet. No pipe stem parcel arrangements are permitted.
    7.5.l.2.C. Each parcel shall be graded evenly to 5% maximum.
    7.5.l.3. Common Lands: In addition to the Civic Parcels and 
Conservation Easements, each Homestead Area shall include a reserve of 
10% of the land as a common area. The Common Land shall be conveyed to 
the Community Association. The planning and maintenance of the Common 
Land shall be the responsibility of the Community Association.
    7.5.l.4. Public Nursery: Each Village Homestead shall designate an 
area for a Public Nursery constructed and planted by the Permittee at 
no cost to the Homesteaders. The nursery may be located adjacent to the 
Common Land but shall not constitute the required Common Land area. The 
Nursery shall provide woody plants of high quality and appearance for 
the use of the Homesteaders as specified below.
    7.5.l.4.A. The nursery shall be 1 acre per 30 acres of Homestead 
Area. The Public Nursery shall be a civil [sic] parcel. The Permittee 
shall plant the nursery with the same species and to the same standards 
as required in the Conservation Easement. Once bond is released, the 
Community Association shall be responsible for maintaining the nursery. 
Success standards shall be the same as for the conservation easements.
    7.5.l.4.B. The nursery plants shall consist of at least six species 
from the following list: White oak, red oak, other native oaks, white 
ash, yellow poplar, black walnut, sugar maple, black cherry, or native 
hickories.
    7.5.l.4.C. Adequate water supply shall be provided for the nursery. 
This may be achieved through any of the water supply means specified or 
through the stormwater drainage system.
    7.5.l.4.D. The nursery shall be maintained in manner consistent 
with the healthy development of the plants. The nursery plants shall 
meet the following criteria upon conveyance: (1) In regular form for 
the species, (2) 80% live branches, and (3) color consistent with the 
species. Materials not meeting the specifications shall be replaced 
with like species by the permittee. After final bond release, the 
nursery shall be conveyed to the Community Association.
    7.5.l.4.E. Each Homesteader shall be allowed to take trees from the 
nursery as determined by the Community Association. The remainder of 
the trees shall be for the common landscapes.
    There are no direct Federal counterparts to the provisions at CSR 
38-2-7.5.l. concerning homestead village. However, we find that they 
are not inconsistent with SMCRA or the Federal regulations and can be 
approved because Homestead is a residential postmining land use 
consistent with SMCRA section 515(c)(3).
    13. CSR 38-2-7.5.m. concerns community association. This 
subdivision contains the following requirements.
    7.5.m. Community Association:
    7.5.m.1. At the completion of the lottery, a Community Association 
shall be established among the designated Homesteaders for each 
Homestead Area. The Association shall maintain and administer the 
public areas, Conservation Easements and Civic Parcels of the Homestead 
and may levy membership fees.
    7.5.m.2. By-laws for the Community Association shall be developed 
by the Escrow Agent, working with the Homesteaders and a qualified 
design professional as defined by this rule. The permittee shall pay 
the qualified land designer for such services. The by-laws may 
establish rules for building standards and other Homestead Area rules, 
as appropriate.
    7.5.m.3. Membership in the association is mandatory for all 
Homesteaders and their successors.
    7.5.m.4. The association shall obtain liability insurance for its 
property and shall be responsible for maintenance of insurance and 
taxes on undivided open space. The association may place liens on the 
homes or houselots of its members who fail to pay their association 
dues in a timely manner. Such liens may require the imposition of 
penalty interest charges.
    7.5.m.5. The association shall administer common facilities and pay 
for maintaining and developing such facilities.
    There are no Federal counterparts to the provisions at CSR 38-2-
7.5.m. concerning community association. However, we find that they are 
not inconsistent with SMCRA or the Federal regulations and can be 
approved.
    14. CSR 38-2-7.5.n. This subdivision concerns interim homestead 
management. This subdivision contains the following requirements.
    7.5.n. Interim Homestead Management
    7.5.n.1. The Director or the Director's designee shall administer 
the Homestead Selection Lotteries.
    7.5.n.2. The Escrow Agent shall monitor the 5-year occupancy 
requirement for each Homestead Parcel and transfer of the titles of the 
surface estates to the qualified Homesteaders.
    7.5.n.3. The Escrow Agent shall manage and administer the homestead 
between final bond release and the time when all of the titles to the 
Homestead Parcels have been transferred and duly recorded with the 
Clerk of the County.
    7.5.n.4. Funding these services shall be guaranteed by an insured 
Bank account established by the Permittee.
    7.5.n.5. Before approving any Homestead variance, the Director 
shall find, in writing, that the funds in the account are sufficient to 
pay for these services.
    7.5.n.6. After final bond release, this account shall be 
administered by the Escrow Agent.
    7.5.n.7. The Escrow Agent shall receive the surface rights to the 
entire Homestead Area and all-weather and main roads before mining 
begins.
    7.5.n.8. The Escrow Agent shall be charged with responsibility for 
transferring the surface rights in escrow to the Homesteaders, the 
Community Association, or the State or county road authority.
    7.5.n.9. Such transfers shall promptly occur upon certification by 
the Escrow Agent that the Homesteader has met the requirements of this 
rule.
    7.5.n.10. Before the homesteader receives title, property may 
revert to the Escrow Agent, when after notice and hearing, the Escrow 
Agent determines that the homesteader has not abided by this rule. The 
Escrow Agent's determination shall be reviewable by the Circuit Court 
of the County in which the homestead parcel is located.
    7.5.n.11. If developed property reverts to Escrow, the Escrow Agent 
shall promptly sell the property and remit proceeds, less costs, to the 
homesteader, up to the value of the homesteader's investment.
    7.5.n.12. Because deeds to Homestead Parcels will not be 
transferred to Homesteaders before a Homesteader has lived on a parcel 
for five years, lending institutions may be reluctant to make loans to 
Homesteaders before the five-year period has expired. Accordingly, to 
assure that lending institutions are willing to make loans to 
Homesteaders during this period, the Escrow Agent shall establish a 
system to provide mortgage insurance to homesteaders so that lenders 
will be able to finance private development of homestead parcels. The 
Escrow Agent shall have all

[[Page 80322]]

powers necessary to structure loans and other necessary transactions so 
lenders are reasonably secure.
    There are no Federal counterparts to the provisions at CSR 38-2-
7.5.n. concerning interim homestead management. However, we find that 
they are not inconsistent with SMCRA or the Federal regulations and can 
be approved.
    15. CSR 38-2-7.5.o. This subdivision concerns bond release, and 
contains the following requirements.
    7.5.o. Bond Release:
    7.5.o.1. Before approving Phase I bond release, the Director shall 
assure that the soil is in place, the vegetative cover has been 
established, that the water system has been completed, that the roads 
have been completed and transferred to the State or county road 
authority, and that the main electricity transmission line is in place.
    7.5.o.2. Phase II bond release may not occur before two years have 
passed since Phase I bond release. Before approving Phase II bond 
release, the Director shall assure that the vegetative cover is still 
in place. The Director shall further assure that the tree survival on 
the Conservation Easements and Public Nurseries are no less than 300 
trees per acre (80% of which must be species from the approved list). 
Furthermore, in the Conservation Easement and Public Nursery areas, 
there shall be a 70% ground cover where ground cover includes tree 
canopy, shrub and herbaceous cover, organic litter, and rock cover. 
Trees and shrubs counted in considering success shall be healthy and 
shall have been in place at least two years, and no evidence of 
inappropriate dieback. Phase II bond release shall not occur until the 
service drops for the utilities and communications have been installed 
to each Homestead Parcel.
    7.5.o.3. The Director may authorize Phase III bond release only 
after all parcels in the Homestead Areas are certified and ready for 
occupancy.
    7.5.o.4. Once final bond release is authorized, the Permittee's 
responsibility for implementing the Homestead Plan shall cease.
    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. Except as follows, the new 
provisions at CSR 38-2-7.5.o. 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. However, we are approving these 
provisions to the extent that they supplement but do not conflict the 
State provisions at CSR 38-2-12.2.
    The Federal regulations at 30 CFR 816.97 concern the protection of 
fish, wildlife, and related environmental values. Subsection (i) at 30 
CFR 816.97 provides that where residential, public service, or 
industrial uses are to be the postmining land use, and where consistent 
with the approved postmining land use, the operator shall intersperse 
reclaimed lands with greenbelts utilizing species of grass, shrubs, and 
trees useful as food and cover for wildlife. The Federal standards for 
evaluating the success of the revegetation of areas to be developed for 
fish and wildlife habitat, recreation, shelter belts, or forest 
products are at 30 CFR 816.116 (b)(3). Subdivision 816.116(b)(3) 
provides that the 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, subdivision 816.116 (b)(3)(iii) 
provides 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. 
However, there is no evidence that the West Virginia Division of 
Forestry has reviewed and approved the proposed tree stocking standards 
at CSR 38-2-7.5.o.2. as is required by 30 CFR 816.116(b)(3)(i). Nor is 
there evidence that the Wildlife Resources Section of the Division of 
Natural Resources has approved the shrub and planting arrangements as 
is required by 30 CFR 816.116(b)(3)(i). Therefore, we are not approving 
these planting arrangements and stocking standards at this time. In 
addition, we are requiring the WVDEP to consult with and obtain the 
approval of the West Virginia Division of Forestry and the Wildlife 
Resources Section of the Division of Natural Resources on the new 
planting arrangements and stocking standards at CSR 38-2-7.5.o.2. 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. In addition, the new rules at CSR 
38-2-7.5.o.2. do not provide revegetation standards at the time of bond 
release for Commercial Parcels, Village Parcels, Rural Parcels, Civic 
Parcels and Common Lands. Therefore, we are requiring that CSR 38-2-
7.5.o.2. be amended, or the West Virginia program otherwise be amended, 
to identify the applicable revegetation success standards for each 
phase of bond release on Commercial Parcels, Village Parcels, Rural 
Parcels, Civic Parcels and Common Lands. In the meantime, no bond 
release for Commercial Parcels, Village Parcels, Rural Parcels, Civic 
Parcels or Common Lands can be approved until a revegetation standard 
is approved.
    The new provision at CSR 38-2-7.5.o.2. defines ground cover to 
include tree canopy, shrub and herbaceous cover, organic litter, 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. At a minimum, the vegetative 
ground cover must not be less than that required to achieve the 
approved use whether or not rocks are included within the State's 
definition of ground cover. Therefore, we are not approving the words 
``rock cover'' as a component of the 70 percent ground cover standard 
at CSR 38-2-7.5.o.2. In addition, we are requiring that the West 
Virginia program be further amended to delete the words ``rock cover'' 
from CSR 38-2-7.5.o.2.

Summary Finding of the Homestead Requirements

    Under the proposed rule, homesteading is a concept which allows for 
the development of planned communities on mountaintop removal sites 
that are not returned to approximate original contour (AOC). The 
homestead area is made up of village and rural parcels primarily for

[[Page 80323]]

residential use with other secondary postmining land uses that consist 
of conservation easements, nurseries, civic parcels, common areas and 
commercial parcels. The new provisions at CSR 38-2-7.5. provide the 
details of the Homestead postmining use. However, the details are not 
perfectly clear, leaving some confusion as to the intended minimum size 
of these supporting elements. The Homestead and supporting areas are 
discussed below.

Homestead Area

    CSR 38-2-7.5.a. provides that operations receiving a variance from 
AOC must establish homesteading on at least 50 percent of the permit 
area, and the remainder of the permit area must support an alternate 
AOC use. Subsection 7.5.g.5.a. provides that the landowner can retain 
up to 15 percent of the homestead area for commercial development. This 
provision appears to be a means for limiting the size of the commercial 
parcel within the homestead (homestead area  x  15 percent = maximum 
size of the commercial parcel). It should be noted, however, that 
subsection 7.5.g.5.A. allows the landowner to retain up to 50 percent 
of the permitted area for commercial development. Subsection 7.5.e.1.C. 
provides that the homestead area, minus the commercial parcels, must 
occupy at least 50 percent of the permitted area. We conclude, 
therefore, that the commercial area is in addition to the homestead 
area, and can be no larger than 15 percent of the size of the homestead 
area (which is at least 50% of the permit area). However, other 
commercial development can occur within the permitted area outside the 
homestead area as described above.

Village Parcels

    Subsection 7.5.l.1.B. provides that at least 20 percent of the 
homestead area must be composed of village parcels. Subsection 
7.5.l.2.A. provides that village parcels can be no larger than one-acre 
in size. Subsections 7.5.g.3.B. and C. provide that village parcels 
must contain a garden area of at least 600 square feet and a building 
pad of a minimum of 2,500 square feet for a dwelling.

Commercial Parcels

    As discussed above, commercial parcels are actually not part of the 
homestead area, but are in addition to the minimum area to be allotted 
for Homestead use. Subsection 7.5.g.5.A. also provides that the 
landowner may not retain more than 50 percent of the permitted area. 
This provision allows for additional commercial development outside the 
homestead area.

Conservation Easements

    Subsection 7.5.i.8.D. provides that at least 10 percent of the 
homestead area, including the commercial parcels, shall be conservation 
easements. We interpret this to mean that the area for conservation 
easements shall be 10 percent of the total area of homestead plus 
commercial parcels. Subsection 7.5.b.5. provides that conservation 
easements shall typically be a strip no less than 200 feet wide and 
shall extend through the mined areas of the land, starting and ending 
in natural, undisturbed land. Such easements are for the purpose of 
establishing a natural habitat for wildlife, windbreaks, and storm 
water management.

Common Areas

    Subsection 7.5.l.3 provides that 10 percent of the homestead area 
must be used as common areas.

Civic Parcels

    Subsection 7.5.g.4.A. provides that civic parcels consisting of 
schools, parks and other community facilities must occupy at least 10 
percent of the postmining permitted area. We interpret the phrase 
``postmining permitted area'' to mean the entire permit area, and not 
limited to just the Homestead area plus the commercial parcels.

Rural Parcels

    The new rules do not specify a minimum size area for rural parcels. 
Therefore, Rural parcels must be the remaining acreage of the homestead 
land after the minimum acreage of the supporting areas (e.g., Civic 
parcel) have been satisfied. Subsections 7.5.b.17 and 7.5.g.3.B.and C. 
provide that rural parcels are planned to promote farming or timber 
management and may be up to 40 acres. Rural parcels must contain a 
garden area of at least 5,000 square feet and building pads for a 
dwelling and outbuilding of 2,500 square feet each.

Public Nursery

    Subsection 7.5.l.4. provides that each village homestead shall 
designate an area for a public nursery constructed and planted by the 
permittee at no cost to the homesteaders. Subsection 7.5.l.4.A. 
provides that the nursery must be one acre per 30 acres of homestead 
area. The public nursery shall be a civic parcel. As proposed, it is 
not clear if the public nursery is limited in size due to the village 
parcel, the civic parcel or the total homestead area. Given the 
requirements of subsection 7.5.i.4.A., we believe that the public 
nursery is a separate component of the homestead area, and is not a 
subcomponent of the village parcel. Furthermore, we believe the 
reference to civic parcel is merely to clarify that the nursery will be 
accessible to and used primarily to benefit the homesteaders. However, 
given the conflicting nature of these requirements, we recommend that 
the State clarify these provisions.
    In summary, a minimum of 20 percent of the Homestead area must be 
used for one-acre village parcels, and 10 percent for common land. A 
minimum of 10 percent of the Homestead area plus commercial parcels 
must be used for conservation easements, and 10 percent of the 
permitted area for civic parcels. An additional area, equivalent to up 
to 15 percent of the Homestead area may be retained for commercial 
development. The remaining area is to be used for 40-acre rural parcels 
and public nurseries. Our concern is not that the percentages are 
inconsistent with SMCRA, for they appear not to be, but to demonstrate 
how we expect implementation of these provisions might work.
    To understand how these requirements interrelate, we need to apply 
them to a typical mountaintop-removal mining situation. For example, in 
order to permit a 1,000 acre mountaintop removal mining operation with 
an AOC variance, the operator would have to select one or more of the 
approvable postmining land uses set forth in Section 22-3-13(c)(3) of 
the W.Va. Code. If homesteading is selected, the operator would have to 
establish homesteading on at least 50 percent of the permitted area, or 
500 acres. If the operator also plans a commercial development, the 
commercial parcel could not exceed 75 acres (15 percent of 500 acres). 
The homestead area would then have to be considered to be 575 acres to 
ensure that the homestead area minus the commercial parcel is at least 
50 percent of the permitted area as is required by Subsection 
7.5.e.1.C. The remaining portion of the permitted area would have to 
support an alternate AOC postmining use as provided in Section 22-3-
13(c)(3) of the W.Va. Code.
    Under this example, the village parcel would occupy 115 acres of 
the homestead area (20 percent  x  575 acres). The conservation 
easement and the common areas would occupy 58 acres each (10 percent 
x  575 acres). The civic parcel would occupy 100 acres of the homestead 
area, which is equal to 10 percent of the 1000-acre permitted area. The 
public nursery must consist of one acre for every 30 acres of homestead 
area and would occupy 19 acres

[[Page 80324]]

(57530). Finally, the rural parcel would occupy the remainder 
of the homestead area or 150 acres. Therefore, the rural parcel would 
amount to 26 percent of the homestead area (150  575).
    Based on these requirements and as shown above in the example, when 
a landowner chooses to retain a portion of the homestead area for 
commercial development, the homestead area will have to comprise 58 
percent of the permitted area, not 50 percent as provided in Subsection 
7.5.a. While the rules provide that the conservation easements, common 
area, and village parcels are to be a percentage of the homestead area, 
it is not clear if these calculations are to include or exclude the 
commercial parcels, which can comprise 15 percent of the homestead 
area. This is further complicated by the fact that Subsection 
7.5.i.8.D. provides that conservation easements are to comprise at 
least 10 percent of the homestead area, including the commercial 
parcels, civic parcels are to be 10 percent of the permitted area, and 
the public nursery could be considered a component of the homestead 
area, village parcel or civic parcel.
    Given the apparent inconsistencies and the resulting difficulty in 
understanding the intended application of the percentages of the 
various components of the Homestead Area, the State needs to clarify 
how the acreage for each of the components of a Homestead Area will be 
calculated. Specifically, we are requiring that: (1) CSR 38-2-7.5.a. be 
amended to clarify whether or not the calculated acreage of the 
Commercial Parcel(s) is to be summed with the total Homestead acreage 
for the purpose of calculating the acreage of other various components 
of the Homestead Area (such as Common Lands, Village Parcels, 
Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4 be amended to 
clarify whether or not the acreage for Public Nursery is to be 
calculated based on the amount of acreage available for the Village 
Homestead, the Civil Parcel, or the entire Homestead Area.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On April 12, 2000, we asked for comments from various Federal 
agencies that 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 they 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), but did not provide any comments concerning CSR 38-2-
7.5.

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 (Administrative Record Number WV-
1166), 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 the State indicated that the new rules 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 addressed EPA's comments which 
concern the postmining land use of commercial forestry and forestry at 
CSR 38-2-7.4 in a previous notice in the Federal Register (August 18, 
2000; 65 FR 50409, 50425-50427) (Administrative Record Number WV-1174). 
EPA's comments concerning the homestead postmining land use at CSR 38-
2-7.5. 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 homesteading 
activities. For example, a National Pollutant Discharge Elimination 
System (NPDES) permit may be required for the discharge of pollutants 
in storm water associated with construction activity related to the 
homesteading activities. The EPA recommended that the regulations 
governing each postmining land use include a statement that activities 
performed in connection with the 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 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 provisions does not render the new provisions less effective 
than the Federal regulations.
    2. Erosion and sedimentation control--The EPA stated that it has 
concerns about possible excessive erosion and runoff at homestead 
sites. 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. 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

[[Page 80325]]

vegetative cover in all areas except directly adjacent to tree 
plantings.
    In response, and as noted above in Finding 10., CSR 38-2-
7.5.j.6.A., 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 erosion'' 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. Except for the phrase, ``excessive 
erosion,'' there is nothing in new CSR 38-2-7.5.j.6.A. 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, erosion would be allowed as long as it was not excessive, even 
though that erosion would be allowed to provide sediment to streams. 
Subdivision CSR 38-2-14.5.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.
    We have determined that as proposed, CSR 38-2-7.5.j.6.A. is less 
effective than the Federal requirements at 30 CFR 816.111 because the 
proposed standard to stabilize the soil from erosion is modified by the 
undefined phrase, ``excessive erosion.'' To be no less effective than 
the Federal requirements, the Director can only be allowed to approve 
ground cover vegetation that is sufficient to control erosion and air 
pollution attendant to erosion. Therefore, we are not approving the 
word ``excessive'' in the phrase ``excessive erosion'' at CSR 38-2-
7.5.j.6. Furthermore, we are requiring the deletion of the word 
``excessive'' from the proposed State rule at CSR 38-2-7.5.j.6.A. to 
ensure compliance with State water quality requirements at CSR 38-2-
14.5.b.
    CSR 38-2-7.5.j.6.B. 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 38-2-7.5.j.6.B. 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-
7.5.j.6.B. 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.
    3. Wastewater and sewage disposal plans--The EPA stated that 
section 38-2-7.5.i.2.A. states that wastewater/sewage disposal plans 
for homestead sites must be approved by the West Virginia Bureau of 
Public Health or the public health authority of the county, and that 
the wastewater/sewage systems must meet local health department 
standards. In addition, the EPA stated, discharges from any wastewater/
sewage system must also meet Federal requirements under the Clean Water 
Act, specifically the NPDES permit requirements which are implemented 
by the Office of Water Resources, WVDEP. The EPA recommended, so there 
would be no misunderstanding, that either a statement to this effect be 
included in section 38-2-7.5.i.2.A., or a statement be included which 
indicates that disposal systems shall be consistent with all State and 
Federal regulations. In response, and as we stated above at Finding 9, 
we are approving the provisions to the extent that the applicable NPDES 
permitting requirements will be complied with.
    4. Individual septic tanks--The EPA stated that section 38-2-
7.5.i.2.B. indicates that septic tank systems may be proposed for use 
at homestead sites. Since homestead sites are planned to be constructed 
on somewhat porous backfilled areas, the EPA stated, there may be a 
higher potential for leachate to pass relatively unabsorbed through the 
fills to streams, presenting possible high fecal coliform levels and 
associated health risks. The EPA urged close review of this potential 
when considering any proposals for septic tank systems at homestead 
sites. In response, and as we stated above at Finding 9, we agree with 
EPA's recommendation.
    5. Water supply--The EPA stated that section 38-2-7.5.i.3.A. 
indicates that the water supply for a homestead site may be provided by 
either connecting to an existing public supply, constructing individual 
wells, or constructing a small reservoir to serve the community. 
Section 7.5.i.3.H. further states that potable water supply sources 
shall meet Federal Primary Drinking Water Maximum Contaminant level 
standards in 40 CFR 141, Subpart B. The EPA stated that community water 
systems as defined by 40 CFR 141 (those serving 25 or more people or 
which have 15 or more service connections) also must comply with all 
subparts of 40 CFR 141, A. through J. The EPA recommended that another 
sentence be added to section 38-2-7.5.i.3.H. which indicates that 
community water systems must comply with 40 CFR 141 in its entirety. As 
discussed above at Finding 9, we are approving this provision to the 
extent that the provisions of 40 CFR 141, A. through J. apply to 
community water systems as defined by 40 CFR 141 (those serving 25 or 
more people or which have 15 or more service connections).
    6. Storm water/surface drainage from homestead sites--The EPA 
stated that section 38-2-7.5.i.7. requires that a detailed storm water 
and surface water drainage plan for homestead sites be certified by a 
registered engineer. The EPA stated that storm water discharges 
resulting from construction of the homestead sites and supporting 
streets, depending on the acreage disturbed, may be subject to Federal 
NPDES storm water regulations in 40 CFR 122.26. The EPA recommended 
that either a statement to this effect be included in section 7.5.i.7., 
or a statement be included which indicates that storm water discharges 
shall be consistent with all State and Federal regulations. The EPA 
also recommended that the site developers contact the Office of Water 
Resources, WVDEP, regarding the applicability of storm water 
regulations for specific sites. In response, and as stated above at 
Finding 9, for the sake of clarity, we are approving CSR 38-2-
7.5.i.7.A. to the extent that applicable NPDES storm water requirements 
would be complied with.

Public Comments

    We solicited public comments on the amendment. One person responded 
with comments (Administrative Record Number WV-1163).
    The commenter stated that the new homestead rules go far beyond 
what is in SMCRA. It seems to be true, the commenter stated, that the 
details would allow the WVDEP to make the necessary findings for 
higher/better postmining land use on AOC variance areas. We agree with 
this comment.

[[Page 80326]]

    The commenter stated that the WVDEP will need extra staff to 
enforce these requirements. In addition, the commenter stated, OSM must 
decide if it would provide grant funds for the additional employees. In 
response, we have no information concerning the likelihood of increased 
permit applications for homestead postmining land use for mountaintop 
removal mining operations. Therefore, it is premature to conclude that 
the WVDEP would need additional staff to process such applications. In 
our oversight of the West Virginia program, we will monitor the number 
and processing of such permit applications, and if necessary, we will 
meet with the State to discuss any need for additional staff.
    The commenter stated that CSR 38-2-7.5.b.14. concerning the 
transfer of title, would require the landowner to transfer title to the 
Attorney General. Clearly, the commenter stated, this requires 
compensation. This point should be clarified, the commenter stated. In 
addition, the purchasing of land for homesteading goes beyond the 
bounds of SMCRA, the commenter stated, and therefore, OSM could not 
provide matching Federal grant funds. In response, we agree with the 
commenter that the rules do not clearly state whether or not the 
landowner of record will be compensated for the land, and by whom. It 
is our understanding that the landowner will not be compensated for the 
land. The fact that the operator will not be required to return the 
site to AOC may be sufficient compensation under the proposed rule. It 
is believed that by donating the land for homesteading, the higher or 
better public use requirements of SMCRA will be better satisfied. Even 
though some may argue that this provision goes beyond the boundaries of 
SMCRA, it is not inconsistent with the provisions of SMCRA. Therefore, 
it can be approved. Finally, we agree with the commenter that Federal 
funds cannot be used to purchase homestead properties.
    The commenter stated that the new rules regarding homesteading 
appear not to be supported by statutory authority. In response, we 
disagree with this comment. The W.Va. Code section 22-3-13(c)(3) 
authorizes residential land uses for AOC variances for mountaintop 
removal mining operations. Homesteading is primarily a residential use, 
and is, therefore, approvable for mountaintop removal mining 
operations. Furthermore, CSR 38-2-7.5.a. provides that the remainder of 
the permit area (that part of the permit area that will not be 
Homestead use) shall support an alternate AOC variance use. This means 
that such areas shall support postmining uses approvable under the 
W.Va. Code section 22-3-13(c)(3).

V. Director's Decision

    Based on the findings above, and except as noted below, we are 
approving the use of Homestead as a postmining land use as provided at 
CSR 38-2-7.5. to the extent that it supplements or is more stringent 
than existing State requirements, but is not inconsistent with any 
existing Federal program requirements.
    We are requiring that CSR 38-2-7.5.b.3. be amended to clarify that 
parcels retained by the landowner for commercial development and 
incorporated within the Homestead area must be developed for commercial 
uses as provided by subdivision CSR 38-2-7.5.g.5.
    CSR 38-2-7.5.e. is approved to the extent that its provisions 
supplement, but do not supersede, the approved State provisions 
concerning maps and cross sections, and operations plans at CSR 38-2-
3.4, 3.5, and 3.6.
    CSR 38-2-7.5.f. is approved to the extent that compliance with 
W.Va. Code section 22-3-13(c)(3) is also required.
    CSR 38-2-7.5.g. is approved to the extent that compliance with the 
State's approved postmining land use requirements at CSR 38-2-7. is 
also required.
    CSR 38-2-7.5.h. is approved to the extent that subdivision 
7.5.h.2.B. means that consolidation of the uppermost 20 feet of spoil 
for Building Pads must be maximized.
    CSR 38-2-7.5.i.1.B. is approved to the extent that the word 
``conditionally'' means that the County or State road authorities will 
accept responsibility for maintaining the all-weather and main roads 
after mining and reclamation is complete, and the road(s) is built.
    We are requiring that CSR 38-2-7.5.i.1.B. be amended, or the West 
Virginia program otherwise be amended, to clarify that roads which meet 
the definition of road at CSR 38-2-2.59 and 38-2-4.1 and that are to be 
retained as part of the postmining land use must be designed and 
constructed to meet the primary road requirements of CSR 38-2-4.
    CSR 38-2-7.5.i.3.H. is approved to the extent that the provisions 
of 40 CFR 141, A. through J. apply to community water systems as 
defined by 40 CFR 141 (those serving 25 or more people or which have 15 
or more service connections).
    CSR 38-2-7.5.i.3.Q. is approved only to the extent that all 
permanent impoundments approved for Homestead postmining land use must 
comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent 
impoundments. In addition, we are requiring that the West Virginia 
program be amended to require that all permanent impoundments approved 
for Homestead postmining land use must comply with CSR 38-2-3.6.b.1. 
and 38-2-5.5 concerning permanent impoundments.
    CSR 38-2-7.5.i.7.A. is approved to the to the extent that the 
applicable NPDES storm water requirements would be complied with.
    CSR 38-2-7.5.i.10. is approved to the extent that the permit 
requirements at CSR 38-2-3.5.d. continue to apply. In addition, we are 
requiring that CSR 38-2-7.5.i.10. be amended to require compliance with 
the permit requirements at CSR 38-2-3.5.d.
    CSR 38-2-7.5.j.2.C. is approved to the extent that all ponds and 
impoundments created during mining and which will be left in place 
following mining must comply with the State permanent impoundment rules 
at CSR 38-2-5.5.
    CSR 38-2-7.5.j.2.E. is approved to the extent that the landscape 
criteria at CSR 38-2-7.5.j.2. do not apply to any fills.
    We are requiring that CSR 38-2-7.5.j.3.A. be amended to add an 
``E'' horizon.
    At CSR 38-2-7.5.j.3.B., the phrase, ``except for those areas with a 
slope of at least 50%'' is not approved, and the phrase, ``and other 
areas from which the applicant affirmatively demonstrates and the 
Director of the WVDEP finds that soil cannot reasonably be recovered'' 
is not approved. In addition, we are requiring the State to delete 
these phrases from its regulations at CSR 38-2-7.5.j.3.B.
    CSR 38-2-7.5.j.3.E. must be amended to provide that the soil 
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 38-2-7.5.j.4. 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. which are no less effective than the 
Federal requirements at 30 CFR 816.102(a).
    At CSR 38-2-7.5.j.6.A., the word ``excessive'' in the phrase 
``excessive erosion'' is not approved. We are requiring the word 
``excessive'' be deleted from CSR 38-2-7.5.j.6.A.
    CSR 38-2-7.5.j.6.B. is approved 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

[[Page 80327]]

violation of water quality standards for the receiving stream. We are 
requiring that CSR 38-2-7.5.j.6.B. be 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.j.7. 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.
    CSR 38-2-7.5.k. is approved to the extent that any as-built or post 
reclamation maps that depict reclamation which varies from that 
approved by the Director in the permit application shall be submitted 
to and approved by the Director under CSR 38-2-3.28.c.
    CSR 38-2-7.5.o. is approved to the extent that it supplements but 
does not supersede the State provisions at CSR 38-2-12.2.
    At CSR 38-2-7.5.o.2., the new planting arrangements and stocking 
standards are not approved. We are requiring the WVDEP to consult with 
and obtain the approval of the West Virginia Division of Forestry and 
the Wildlife Resources Section of the Division of Natural Resources on 
the new planting arrangements and stocking standards at CSR 38-2-
7.5.o.2.
    We are requiring that CSR 38-2-7.5.o.2. be amended to, or the West 
Virginia program otherwise be amended, to identify the applicable 
revegetation success standards for each phase of bond release on 
Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels and 
Common Lands. In the meantime, no bond release for Commercial Parcels, 
Village Parcels, Rural Parcels, Civic Parcels or Common Lands can be 
approved until a revegetation standard is approved.
    At CSR 38-2-7.5.o.2., the words ``rock cover'' are not approved. We 
are requiring that the words ``rock cover'' be deleted from CSR 38-2-
7.5.0.2.
    Finally, we are requiring that: (1) CSR 38-2-7.5.a. be amended to 
clarify whether or not the calculated acreage of the Commercial 
Parcel(s) is to be summed with the total Homestead acreage for the 
purpose of calculating the acreage of other various components of the 
Homestead Area (such as Common Lands, Village Parcels, Conservation 
Easement, etc.); and (2) CSR 38-2-7.5.1.4 be amended to clarify whether 
or not the acreage for Public Nursery is to be calculated based on the 
amount of acreage available for the Village Homestead, the Civil 
Parcel, or the entire Homestead Area.
    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 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

[[Page 80328]]

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: December 7, 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 (c) to read as 
follows:


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

* * * * *
    (c) 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) At CSR 38-2-7.5.j.3.B., the phrase, ``except for those areas 
with a slope of at least 50%'' is not approved, and the phrase, ``and 
other areas from which the applicant affirmatively demonstrates and the 
Director of the WVDEP finds that soil cannot reasonably be recovered'' 
is not approved.
    (2) At CSR 38-2-7.5.j.6.A., the word ``excessive'' in the phrase 
``excessive erosion'' is not approved.
    (3) At CSR 38-2-7.5.o.2., the new planting arrangements and 
stocking standards are not approved.
    (4) At CSR 38-2-7.5.o.2., the words ``rock cover'' are not 
approved.
* * * * *

    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        Citation/description
 Original amendment submission    publication of        of approved
             date                   final rule           provisions
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
March 14, 2000, March 28,       12/21/00.........  CSR 38-2-
 2000, and April 6, 2000.                           7.5.(qualified
                                                    approval), 7.5.a.,
                                                    b., c., d., e.
                                                    (qualified
                                                    approval), f.
                                                    (qualified
                                                    approval), g.
                                                    (qualified
                                                    approval), h.
                                                    (h.2.B. is a
                                                    qualified approval),
                                                    i. (i.1.B., i.3.H.,
                                                    i.3.Q. and i.7.A.,
                                                    and i.10. are
                                                    qualified
                                                    approvals), j.
                                                    (j.2.C. and j.2.E.
                                                    are qualified
                                                    approvals; j.3.B.
                                                    partial approval;
                                                    j.4. qualified
                                                    approval, j.6.A.
                                                    partial approval,
                                                    j.6.B. qualified
                                                    approval, j.7.
                                                    qualified approval),
                                                    k. (qualified
                                                    approval), l., m.,
                                                    n., o. (qualified
                                                    approval; o.2. is a
                                                    partial approval).
------------------------------------------------------------------------


    4. Section 948.16 is amended by adding paragraphs (fffff) through 
(rrrrr) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (fffff) By February 20, 2001, 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 38-2-7.5.b.3., or 
otherwise amend the West Virginia program to clarify that parcels 
retained by the landowner for commercial development and incorporated 
within the Homestead area must be developed for commercial uses as 
provided by subdivision CSR 38-2-7.5.g.5.
    (ggggg) By February 20, 2001, 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 38-2-7.5.i.1.B., or 
to otherwise amend the West Virginia program, to clarify that roads 
which meet the definition of road at CSR 38-2-2.59 and 38-2-4.1 and 
that are to be retained as part of the postmining land use must be 
designed and constructed to meet the primary road requirements of CSR 
38-2-4.
    (hhhhh) By February 20, 2001, 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 38-2-7.5.i.3.Q., or 
otherwise amend the West Virginia program, to require that all 
permanent impoundments approved for Homestead postmining land use must 
comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent 
impoundments.
    (iiiii) By February 20, 2001, 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 38-2-7.5.i.10., or 
otherwise amend the West Virginia program, to require compliance with 
the permit requirements at CSR 38-2-3.5.d.
    (jjjjj) By February 20, 2001, 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 38-2-7.5.j.3.A. by 
adding an ``E'' horizon.
    (kkkkk) By February 20, 2001, 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 38-2-7.5.j.3.B. to 
delete the phrase, ``except for those areas with a slope of at least 
50%,'' and to delete the phrase, ``and other areas from which the 
applicant affirmatively demonstrates and the Director of the WVDEP 
finds that soil cannot reasonably be recovered.''
    (lllll) By Februay 20, 2001, 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 38-2-7.5.j.3.E., or 
otherwise amend the West Virginia program, to provide that the soil 
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.
    (mmmmm) By Februay 20, 2001, 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

[[Page 80329]]

the word ``excessive'' from CSR 38-2-7.5.j.6.A.
    (nnnnn) By February 20, 2001, 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 38-2-7.5.j.6.B., or 
otherwise amend the West Virginia program, 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.
    (ooooo) By February 20, 2001, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to consult with and obtain the 
approval of the West Virginia Division of Forestry and the Wildlife 
Resources Section of the Division of Natural Resources on the new 
stocking standards and planting arrangements at CSR 38-2-7.5.o.2.
    (ppppp) By February 20, 2001, 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 38-2-7.5.o.2., or 
otherwise amend the West Virginia program, to identify the applicable 
revegetation success standards for each phase of bond release on 
Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels and 
Common Lands. In the meantime, no bond release for Commercial Parcels, 
Village Parcels, Rural Parcels, Civic Parcels or Common Lands can be 
approved until a revegetation standard is approved.
    (qqqqq) By February 20, 2001, 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 words ``rock 
cover'' from CSR 38-2-7.5.o.2.
    (rrrrr) By February 20, 2001, 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: (1) CSR 38-2-7.5.a. to 
clarify whether or not the calculated acreage of the Commercial 
Parcel(s) is to be summed with the total Homestead acreage for the 
purpose of calculating the acreage of other various components of the 
Homestead Area (such as Common Lands, Village Parcels, Conservation 
Easement, etc.); and (2) CSR 38-2-7.5.l.4 to clarify whether or not the 
acreage for Public Nursery is to be calculated based on the amount of 
acreage available for the Village Homestead, the Civil Parcel, or the 
entire Homestead Area.

[FR Doc. 00-32428 Filed 12-20-00; 8:45 am]
BILLING CODE 4310-05-P