[Federal Register Volume 67, Number 84 (Wednesday, May 1, 2002)]
[Rules and Regulations]
[Pages 21904-21932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10759]



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Part V





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 948



West Virginia Regulatory Program; Final Rule

  Federal Register / Vol. 67, No. 84 / Wednesday, May 1, 2002 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-088-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving proposed amendments to the West Virginia 
regulatory program (the ``West Virginia program'') authorized under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
The amendments consist of the State's responses to several required 
program amendments codified in the Federal regulations at 30 CFR 
948.16. The amendments are intended to revise the West Virginia program 
to be consistent with the corresponding Federal regulations and SMCRA.

EFFECTIVE DATE: May 1, 2002.

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

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

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253 (a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
the conditions of the approval in the January 21, 1981, Federal 
Register (46 FR 5915). You can also find later actions concerning the 
West Virginia program and program amendments at 30 CFR 948.10, 948.12, 
948.13, 948.15, and 948.16.

II. Submission of the Amendments

    By letter dated November 30, 2000 (Administrative Record Number WV-
1189), West Virginia sent us an amendment to its program, under SMCRA 
(30 U.S.C. 1201 et seq.). The amendment includes numerous attachments 
and was submitted in response to the following required program 
amendments: 30 CFR 948.16(a), (dd), (ee), (oo), (tt), (xx), (mmm), 
(nnn), (ooo), (qqq), (sss), (vvv)(1), (2), (3), and (4), (www), (xxx), 
(zzz), (aaaa), (bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), 
(llll), (mmmm), (nnnn), (oooo), and (pppp).
    However, in a previous decision dated October 1, 1999 (64 FR 
53200), we found that the State had satisfied the required amendment 
codified at 30 CFR 948.16(mmm) and, therefore, it was removed.
    In another previous decision dated August 18, 2000 (65 FR 50409), 
we found that the State had satisfied the required amendments codified 
at 30 CFR 948.16(www) and (xxx), and, therefore, we removed them.
    We announced receipt of the proposed amendment in the January 3, 
2001, Federal Register (66 FR 335-340). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
Number WV-1194). We did not hold a public hearing or meeting, because 
no one requested one. The public comment period ended on February 2, 
2001. However, a public commenter requested an extension of the public 
comment period, and to accommodate that request we extended the comment 
period to February 28, 2001. We received comments from one 
environmental organization and three Federal agencies.
    We are also including in this final rule document our decisions on 
the State's responses to required program amendments that were 
submitted to us as part of a separate program amendment package dated 
May 2, 2001. We will address the remainder of the May 2, 2001, 
amendment in a separate final rule document at a later date. In a 
letter dated May 2, 2001 (Administrative Record Number WV-1209) West 
Virginia Department of Environmental Protection (WVDEP) submitted 
revisions to its Surface Mining Reclamation Regulations, Code of State 
Regulations (CSR) 38-2. Enrolled Committee Substitute for House Bill 
2663 (Administrative Record Number WV-1210) that passed the Legislature 
on April 14, 2001, and was signed into law by the Governor on May 2, 
2001, authorized WVDEP to promulgate the regulatory revisions. A notice 
(66 FR 28682) announcing receipt and a public comment period on the 
amendment was published in the Federal Register on May 24, 2001 
(Administrative Record Number WV-1213). The amendments that we are 
deciding here were submitted by WVDEP to address the required 
amendments codified at 30 CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), 
(hhhh), (jjjj), (nnnn), and (pppp). The comment period closed on the 
program amendment on June 25, 2001. We received comments on the State's 
responses to the required amendments noted above from two Federal 
agencies.
    We are also including in this final rule document our decisions on 
the State's responses to required program amendments that were 
submitted to us as part of a separate program amendment package dated 
November 28, 2001. We will address the remainder of the November 28, 
2001, amendment in a separate final rule document at a later date. The 
amendments that we are deciding here were submitted by WVDEP to address 
the required amendments codified at 30 CFR 948.16(kkkk), (llll), and 
(mmmm). A notice (67 FR 4689-4692) announcing receipt and a public 
comment period on the program amendment package was published in the 
Federal Register on January 31, 2002 (Administrative Record Number WV-
1267). The public comment period closed on March 4, 2002. We received 
comments on the required amendments noted above from three Federal 
agencies.
    On January 15, 2002 (Administrative Record Number WV-1271), we met 
with the State to discuss the required amendments codified at 30 CFR 
948.16. In that meeting, WVDEP agreed to provide us with further 
clarification on how and when they would provide additional 
information, amend policies set forth in its Permit, Inspection and 
Technical Handbooks, or propose rulemaking that would resolve specific 
issues.
    By letter dated February 26, 2002, WVDEP sent us a status report 
regarding the required program amendments codified at 30 CFR 948.16 
(Administrative Record Number WV-1276). The report included 14 
attachments, and outlined actions taken in an attempt to satisfy the 
required program amendments. The actions

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include proposed policies, rules and laws, form changes, and referrals 
to legal staff. Several actions include further justification of why 
WVDEP considers the State program to be sufficient. WVDEP stated that 
the law and rule changes would be proposed during the 2002 regular 
legislative session, and that none of the proposed revisions would be 
implemented without OSM approval.
    By letter dated March 8, 2002, WVDEP sent us revisions to two of 
the attachments it had sent us in its February 26 letter 
(Administrative Record Number WV-1280). The March 8, 2002, letter also 
included one new attachment intended to address the required amendment 
at 30 CFR 948.16(sss).
    In the March 25, 2002, Federal Register (67 FR 13577-13585) we 
reopened the comment period to provide the public an opportunity to 
review and comment on the topics discussed in the January 15, 2002, 
meeting; WVDEP's February 26 and March 8, 2002, submittals; and related 
information that we provided to WVDEP (Administrative Record Number WV-
1285). The comment period closed on April 9, 2002. We received comments 
from one industry group and two Federal agencies.

III. OSM's Findings

    Following are the findings we made pursuant to SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed 
amendments to the West Virginia program. We are approving these 
amendments and removing the required amendments. Any revisions that we 
do not specifically discuss below concern nonsubstantive wording or 
editorial changes.
    We are presenting our findings below in the following format: a 
description of the required amendment codified at 30 CFR 948.16; 
followed by a quotation or a description of the State's response to the 
required amendment; and our finding.
    1. Blasting. 30 CFR 948.16(a) provides that West Virginia must 
submit copies of proposed regulations or otherwise propose to amend its 
program to provide that all surface blasting operations (including 
those using less than five pounds and those involving surface 
activities at underground mining operations) shall be conducted under 
the direction of a certified blaster.

State Response

    This required program amendment should be removed. Current 
language in [subsection] 6.1 of the rules states ``a blaster 
certified by the Division of Environmental Protection shall be 
responsible for all blasting operations''. A letter dated August 30, 
1994 from James Blankenship (OSM) to David C. Callaghan (WVDEP 
Director) stated ``required amendment 30 CFR 948.16(a) will be 
removed because the state has removed the offending language''. 
(Federal counterpart 816.61(c))

    In the above referenced August 30, 1994, letter (Administrative 
Record Number WV-934) we acknowledged that the West Virginia program 
does require all blasting operations to be conducted by a certified 
blaster. Revised CSR 38-2-6.1 provides that ``a blaster certified by 
the Department of Environmental Protection shall be responsible for all 
blasting operations including the transportation, storage and use of 
explosives within the permit area in accordance with the blasting 
plan.'' We find, therefore, that the requirement of 30 CFR 948.16(a) is 
satisfied and can be removed.
    2. Revegetation. 30 CFR 948.16(dd) provides that West Virginia must 
submit proposed revisions to Subsection CSR 38-2-9.3 of its Surface 
Mining Reclamation Regulations or otherwise propose to amend its 
program to establish productivity success standards for grazing land, 
pasture land and cropland; require use of the 90 percent statistical 
confidence interval with a one-sided test using a 0.10 alpha error in 
data analysis and in the design of sampling techniques; and require 
that revegetation success be judged on the basis of the vegetation's 
effectiveness for the postmining land use and in meeting the general 
revegetation and reclamation plan requirements of Subsections 9.1 and 
9.2. Furthermore, West Virginia must submit for OSM approval its 
selected productivity and revegetation sampling techniques to be used 
when evaluating the success of ground cover, stocking or production as 
required by 30 CFR 816.116 and 817.116.

State Response

    Productivity: The WVDEP has developed a policy (Attachment 1) 
that will use productivity standards developed by the Natural 
Resources Conservation Service (NRCS) or other publications of the 
United States Department of Agriculture. These standards will be 
compared to yields obtained from the particular site.
    Ground cover: WVDEP has reviewed the modified Rennie-Farmer 
Method in addition to methods used in other states and has developed 
a policy (Attachment 1) which references section 3 of ``Technical 
Guides of Reference Areas and Technical Standards for Evaluating 
Surface Mine Vegetation in OSM Regions I and II,'' by Robert E. 
Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of 
the Interior, Office of Surface Mining Reclamation and Enforcement.

    Productivity: As discussed in the May 23, 1990, Federal Register, 
the State's regulations at Subsection 9.3(f) required the measurement 
of productivity, but they did not establish productivity success 
standards for grazing land, pasture land and cropland (55 FR 21322). In 
addition, the State failed to select and submit its productivity 
sampling technique(s) to be used in evaluating productivity.
    WVDEP submitted a policy on February 26, 2002, addressing this 
issue. The policy was revised and resubmitted to us on March 8, 2002, 
as Attachment 1. The policy provides that the productivity standards 
for grazing land and hayland will be based upon determinations for 
similar map units as published in the productivity tables in NRCS soil 
surveys for the county or from average county yields recognized by the 
U.S. Department of Agriculture (USDA). We note that ``The West Virginia 
Bulletin,'' which is published annually by the West Virginia 
Agricultural Statistics Service, in cooperation with the USDA, lists 
average county yields for various principal crops throughout the State. 
The yields for grazing land or hayland will be measured in material 
produced per acre or animal units supported. The success of production 
shall be equal to or greater than that of the standard obtained from 
the tables. The evaluation methods for productivity to be used are 
described in Section 1 of ``Technical Guides of Reference Areas and 
Technical Standards for Evaluating Surface Mine Vegetation in OSM 
Regions I and II,'' by Robert E. Farmer, Jr. et al., OSM__J5701442/TV-
54055A, 1981, U.S. Department of the Interior, Office of Surface Mining 
Reclamation and Enforcement.
    CSR 38-2-9.3.f of the State's existing Surface Mining Reclamation 
Regulations, which establishes the success standard for grazing land 
and pasture land, provides where the postmining land use requires 
legumes and perennial grasses, the operator shall achieve at least a 
ninety (90) percent ground cover and a productivity level as set forth 
in the (Technical) Handbook during any two years of the responsibility 
period except for the first year. The State does not intend to revise 
the Technical Handbook that is referenced in its rules. Instead, the 
proposed policy will become part of the Permitting or Inspector 
Handbook.
    According to the policy, the productivity success standard for 
cropland will be determined using yields for reference crops from 
unmined lands. Reference crop yields shall be determined from the 
current yield

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records of representative local farms in the surrounding area or from 
the average county yields recognized by the U.S. Department of 
Agriculture. The success of production shall be equal to or greater 
than that of the reference crop from unmined areas. Evaluation methods 
for productivity to be used are described in Section 1 of the 
``Technical Guides of Reference Areas and Technical Standards for 
Evaluating Surface Mine Vegetation in OSM Regions I and II,'' by Robert 
E. Farmer, Jr. et al., OSM__J5701442/TV-54055A, 1981, U.S. Department 
of the Interior, Office of Surface Mining Reclamation and Enforcement.
    The policy further provides that the company (permit applicant) is 
responsible for providing WVDEP with copies of the productivity tables 
and/or data used to determine reference crop yield. Where the USDA or 
other agricultural data for productivity does not exist for a 
particular county, the applicant will work with WVDEP and USDA to 
develop standards for the proposed area.
    CSR 38-2-9.3.f.2 provides that for areas to be used for cropland, 
the success of crop production from the mined area shall be equal to or 
greater than that of the approved standard for the crop being grown 
over (the) last two (2) consecutive seasons of the five growing season 
liability period. The proposed policy clarifies that the success 
standard for cropland is based on yields for reference crops from 
``unmined'' lands. The policy further provides that reference crop 
yields shall be based on current yield records of representative local 
farms in the surrounding area or from the average county yields. The 
existing rules do not provide for the use of reference areas in 
evaluating the productivity success of cropland. As proposed in the 
policy, an operator will be required to use reference areas in the 
vicinity of the proposed mining operation or average county yield 
records in setting the success standard when cropland is the approved 
postmining land use. To ensure that management levels and other factors 
are given proper consideration, we recommend that yield data from both 
the reference areas and county records be given equal weight when 
establishing productivity success standards for cropland.
    We encourage WVDEP to cite in its rules and/or policy the specific 
productivity standards developed by NRCS and the other publications of 
the USDA that the State plans to use. We also recommend the use of the 
``West Virginia Bulletin'' published by the WV Department of 
Agriculture and the USDA. A copy of ``West Virginia Bulletin 2001, No. 
32'' was provided to WVDEP on February 6, 2002. NRCS officials say that 
some soil surveys lack sufficient information to rate the yields for a 
particular soil type, especially in certain mining counties, and most 
yield information is based on higher levels of management. Although the 
WV Bulletin lacks yield information based on soil type, NRCS concurs 
that a combination of reports may be best to use, especially when the 
soil survey states that the soil is too variable to rate. Nevertheless, 
the lack of reference to specific publications does not render the 
proposed policy less effective than the Federal requirements. When 
submitting permit applications or permit modifications for existing 
operations with agricultural postmining land uses, applicants will be 
expected to include productivity data from the most current NRCS soil 
surveys and USDA publications for WVDEP review and approval. The 
applicant will be required to consult with WVDEP, NRCS and USDA to 
verify existing information or to develop data when production data is 
insufficient or missing for a particular county or area.
    CSR 38-2-9.3.d and 9.3.e provide that when evaluating vegetative 
success, WVDEP must use a statistically valid sampling technique with a 
90 percent statistical confidence interval. The proposed policy 
requires the use of a sampling technique for measuring productivity as 
set forth in Section 1 of the ``Technical Guides of Reference Areas and 
Technical Standards for Evaluating Surface Mine Vegetation in OSM 
Regions I and II.'' Section 1 is entitled, ``Planning and Evaluating 
Agricultural Land Uses on Surface-Mined Areas.''
    As mentioned above, 30 CFR 948.16(dd) requires the establishment of 
productivity success standards for grazing land, pastureland, and 
cropland. Because the proposed policy establishes productivity success 
standards for grazing land, pastureland and cropland that are no less 
effective than those standards set forth in 30 CFR 816.116 and 817.116, 
this portion of the required amendment has been satisfied and can be 
removed. In addition, because State rules at CSR 38-2-9.3.d and 9.3.e 
require the use of a statistically valid sampling technique with a 90 
percent statistical confidence interval and the proposed policy 
provides for the use of a productivity sampling technique that uses a 
90-percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error) for measuring grazing land, pastureland and cropland, 
that portion of the required amendment has been satisfied and can be 
removed.
    Ground Cover: As discussed in the May 23, 1990, Federal Register 
(55 FR 21322), the State program did not require that revegetation 
success be judged on the basis of the vegetation's effectiveness for 
the postmining land use and in meeting the general revegetation and 
reclamation plan requirements of Subsections 9.1 and 9.2. Furthermore, 
the State has failed to submit for OSM approval its selected 
revegetation sampling techniques to be used when evaluating ground 
cover.
    Initially, WVDEP submitted its modified Rennie-Farmer Method as its 
preferred method for evaluating the success of ground cover. After 
further evaluation of that method and other State methods, WVDEP 
submitted a policy on February 26, 2002, and revised it on March 8, 
2002, which provides that ground cover success shall be based on the 
Rennie and Farmer technique described in Section 3 of the ``Technical 
Guides of Reference Areas and Technical Standards for Evaluating 
Surface Mine Vegetation in OSM Regions I and II,'' by Robert E. Farmer, 
Jr. et al., OSM__J5701442/TV-54055A, 1981, U.S. Department of the 
Interior, Office of Surface Mining Reclamation and Enforcement. Section 
3 is entitled, ``An Inventory System for Evaluating Revegetation of 
Reclaimed Surface Mines to Forest Resource Conservation Standards,'' 
and contains a statistical technique for evaluating ground cover and 
stockings.
    CSR 38-2-9.3.d and 9.3.e. provide that when evaluating vegetative 
success, WVDEP must use a statistically valid sampling technique with a 
90 percent statistical confidence interval. Ground cover, production, 
or stocking can only be considered equal to the approved success 
standard when they are not less than 90 percent of the success 
standard. When evaluating vegetative success, an inspection report must 
be filed by the inspector. Only after the applicable success standards 
have been met and documented can Phase II or Phase III bond release be 
approved by the State.
    Because State rules at CSR 38-2-9.3 and the proposed policy require 
the use of a statistical sampling technique for measuring ground cover 
and that measurement technique requires the use of a 90-percent 
statistical confidence interval (i.e., one-sided test with a 0.10 alpha 
error), that portion of the required amendment at 30 CFR 948.16(dd) has 
been satisfied and can be removed.
    The West Virginia program at CSR 38-2-9.1.a. and 9.1.d. provide for 
the establishment of a diverse, effective and permanent vegetative 
cover of the same seasonal variety native to the area of disturbed 
land, or introduced species

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that are compatible with the approved postmining land use. The 
requirement that the established vegetation be compatible with the 
approved postmining land use satisfies the requirement at 30 CFR 
948.16(dd) which states that revegetation must be judged on the basis 
of the vegetation's effectiveness for the postmining land use. 
Therefore, that portion of 30 CFR 948.16(dd) has been satisfied and can 
be removed.
    30 CFR 948.16(dd) also requires that the West Virginia program 
contain the requirement that revegetation success be judged on the 
basis of the vegetation's effectiveness in meeting the general 
revegetation and reclamation plan requirements of subsections CSR 38-2-
9.1 and 9.2. As mentioned above, CSR 38-2-9.3.e., concerning the final 
bond release inspection, satisfies this requirement by providing that, 
``. . . if applicable standards have been met, the Director shall 
release the remainder of the bond.'' CSR 38-2-12.2.c.3 further provides 
that only upon successful completion of the reclamation requirements of 
the Act, these rules and the permit conditions, may final bond release 
be approved by the Director. The ``applicable standards'' referred to 
at CSR 38-2-9.3.e. include the revegetation success standards and the 
``reclamation requirements'' at CSR 38-12.2.c.3 would include all other 
requirements of the West Virginia program, including those requirements 
at CSR 38-2-9.1 and 9.2. Therefore, the remaining portion of 30 CFR 
948.16(dd) has been satisfied and can be removed.
    3. Prime Farmland. 30 CFR 948.16(ee) provides that West Virginia 
must submit documentation that the NRCS has been consulted with respect 
to the nature and extent of the prime farmland reconnaissance 
inspection required under Subsection 38-2-10.1 of the State's Surface 
Mining Reclamation Regulations. In addition, the State shall either 
delete paragraphs (a)(2) and (a)(3) of Subsection 38-2-10.2 or submit 
documentation that the NRCS State Conservationist concurs with the 
negative determination criteria set forth in these paragraphs.

State Response

    Comments from NRCS resolve this issue (WV Administrative Record 
No. WV-1203). The NRCS stated in their comment letter dated February 
9, 2001, to OSM that all prime farmlands in the State have been 
mapped and are available. WVDEP has contacted the NRCS and has 
drafted a letter seeking further concurrence (Attachment 1A).

    In an attempt to clarify these issues and to gain further insight 
into NRCS comments of February 9, 2001 (Administrative Record Number 
WV-1203), we had several discussions with NRCS officials about these 
issues. Through these discussions we learned that NRCS does not have 
soil surveys completed for all counties in West Virginia. NRCS has 
completed soil surveys for approximately 98 percent of the State. They 
have draft reports for Logan, Mingo, Lincoln, and McDowell Counties 
that still need to be published. The final reports will not be 
published until late 2002 or early 2003. In the meantime, NRCS will 
have to conduct soil investigations in counties that do not have 
completed soil surveys. NRCS does not feel that it is necessary to 
conduct prime farmland reconnaissance inspections in all counties of 
West Virginia. However, the procedural details for identifying and 
protecting prime farmland within the State need to be negotiated 
through a memorandum of understanding (MOU) or an exchange of letters 
between NRCS and WVDEP.
    In its February 25, 2002, letter that comprised Attachment 1A, 
WVDEP provided NRCS a copy of its rules governing prime farmlands at 
CSR 38-2-10. WVDEP requested that NRCS address its reconnaissance 
inspection requirements and concur with its negative determination 
criteria.
    WVDEP described the State's reconnaissance inspection process as it 
currently exists. Included in that description were the following 
criteria, one or more of which can be the basis for a prime farmland 
negative determination: (1) No historical use of the land as cropland; 
(2) The slope of the land in the permit area is greater than 10 
percent; (3) Other factors (i.e., rocky surface, frequent flooding) 
disqualify the land as prime farmland; and (4) A soil survey by a 
qualified person.
    The letter further stated that WVDEP reviews the applicant's 
information in the application and will check county soil survey maps. 
The soils in the area are compared to a list from ``West Virginia's 
Prime Farmland Soil Mapping Units'' by NRCS (Attachment 3P). If the 
soils in the proposed mining area are not on the list, then the 
negative determinations are approved. If the negative determination is 
not approved, then the NRCS is consulted. If prime farmland is 
identified, then a much more detailed plan is required.
    For counties where no mapping has been published, WVDEP's procedure 
is described in Attachment 2P. If the slopes are less than 10 percent 
and the area has historically been used as cropland, then NRCS is 
consulted.
    WVDEP further stated that the criteria for both the slope and the 
rocky or flooded land were based on NRCS literature. Of all the soils 
identified in the ``West Virginia's Prime Farmland Soil Mapping Units'' 
document, not one has a slope greater than 10 percent and that same 
document says that prime farmland cannot be in areas that are flooded 
frequently nor in areas that are rocky (10 percent cover of rock 
fragments coarser than 3 inches).
    Attachment 2P contains a proposed policy regarding prime farmlands 
identifications. The policy provides that soil surveys prepared by the 
NRCS will be the basis for the final determination of prime farmlands 
in West Virginia involving surface mining permits. In the cases where 
soil surveys are not complete in a county and prime farmland 
involvement is possible, the NRCS will conduct a soil survey for the 
permit area for final determination.
    If a permit application contains any areas with less than 10 
percent slope and it is evident the area has been used for crops at 
least 5 years out of the last 20 years, it is possible that these areas 
could be considered prime farmland.
    If this condition is present, the applicant should check the NRCS 
soil survey for that county. If a soil survey does not exist for a 
particular county, the applicant should consult the local NRCS District 
Conservationist for a prime farmland determination.
    In counties where soil surveys have been published, the applicant 
must locate the permit on the soils map and by using the symbols on the 
map, determine the soil types in the proposed area. Then, comparison 
with the attached list of soils constituting prime farmlands in West 
Virginia will have to be made. If the soil type is considered prime 
farmland on the list, the District Conservationist for that county must 
be contacted for final determination.
    If the permit application involves prime farmland, all provisions 
of Sections 507(b)(16) and 515(b)(7) of Public Law 95-87 (Sections 22-
3-9(a)(15) and 22-3-13(b)(7) of the West Virginia Surface Coal Mining 
and Reclamation Act) and Section 10 of the West Virginia Surface Mining 
Reclamation Regulations will apply.
    Attachment 3P contains the publication entitled, ``West Virginia's 
Prime Farmland Soil Mapping Units.'' This publication contains a 
listing prime farmland soil mapping units throughout the State. The 
publication is dated April 1982.
    As discussed in the May 23, 1990, Federal Register (55 FR 21322), 
although the State's negative determination criteria appeared

[[Page 21908]]

generally consistent with the national criteria established at 7 CFR 
657, Federal rules allow the NRCS to alter these criteria and establish 
others. Furthermore, the definition of ``prime farmland'' at 30 CFR 
701.5 vests responsibility for establishing prime farmland 
qualification criteria with the U.S. Secretary of Agriculture. To 
ensure that the State program is no less effective than the Federal 
definition of ``prime farmland'' in 30 CFR 30 CFR 701.5, West Virginia 
was required to submit documentation that the NRCS has concurred with 
all negative determination criteria contained in Subsection 10.2, 
except those of paragraph (a)(1), which pertain to historical use for 
cropland. In addition to demonstrating compliance with the consultation 
requirements of 30 CFR 785.17(b)(1), the State was to submit 
documentation that it has consulted with the NRCS State Conservationist 
in determining the nature and extent of the reconnaissance inspection.
    On March 7, 2002, NRCS responded to WVDEP's inquiries regarding 
prime farmland (Administrative Record Number WV-1290). The NRCS 
acknowledged that it is the Federal agency with delegated authority 
under law to make determinations on the existence of prime farmland. 
NRCS acknowledged that it provides information on prime farmland 
through the soil survey program as part of its technical assistance 
effort to the fourteen soil conservation districts in West Virginia.
    With respect to reconnaissance inspections, NRCS acknowledged that 
it could be satisfied by using locally available information. The soil 
map units in the soil survey are listed for prime farmland and are 
cross-referenced in the local Field Office Technical Guide. NRCS found 
that the reconnaissance inspection procedures outlined in WVDEP's 
proposed policy, ``Prime Farmlands Identifications,'' Attachment 2P, 
were acceptable to them. However, they requested that WVDEP change 
``SCS'' to ``NRCS.''
    In regard to the negative determination criteria, NRCS stated that 
its definitions were not consistent with several parts of CSR 38-2-10. 
Because cropping history is not considered in the NRCS definition of 
prime farmland, it could not agree with any historic use of the land as 
set forth in Subsections 10.2.a.1 through 10.2.a.1.C. According to the 
NRCS, prime farmland can be cultivated, cropland, pasture, or 
forestland. However, it cannot be built up land or water. The Federal 
regulations at 30 CFR 701.5 define prime farmland to mean those lands 
which are defined by the Secretary of Agriculture in 7 CFR Part 675 and 
which have historically been used for cropland. The State's 
requirements regarding historical use as cropland, like the Federal 
definition of prime farmland at 30 CFR 701.5, is consistent with 
Section 701(20) of SMCRA. That section defines prime farmland to have 
the same meaning as that previously prescribed by the Secretary of 
Agriculture on the basis of such factors as moisture availability, 
temperature regime, chemical balance, permeability, surface layer 
composition, susceptibility to flooding, erosion characteristics, and 
which historically have been used for intensive agricultural purposes. 
As discussed above, West Virginia was required to submit documentation 
that the NRCS concurs with all negative determination criteria 
contained in Subsection 10.2, except those of paragraph (a)(1), which 
pertain to historical use for cropland. In addition, the State's 
regulations at subsection 10.2.a.1 through 10.2.a.1.C are substantively 
identical to the Federal regulations at 30 CFR 701.5 (definition of 
``historically used for cropland''). NRCS concurred with Subsection 
10.2.a.2 and 10.2.a.3 relating to slopes greater than 10 percent and 
the presence of stones on the surface. It also agreed with Subsection 
10.2.a.4 and recommended the use of soil surveys in making negative 
determinations.
    NRCS concluded that nearly all areas in the State have basic 
information on prime farmland. If new mapping is in progress, they 
would provide advance information at the mapping scale used. Generally, 
NRCS makes prime farmland determinations at the scale of mapping used 
for the soil survey, either 1:12,000 or 1:24,000. This information is 
published through the soil survey or the local Field Office Technical 
Guide and provided through West Virginia's fourteen soil conservation 
districts. NRCS stated that it was presently updating its prime 
farmland statewide list.
    Because the NRCS concurs with the State's negative determination 
criteria set forth at CSR 38-2-10.2.a.2 and 10.2.a.3, regarding 
steepness, stoniness and flooding, OSM finds that the State prime 
farmland requirements at CSR 38-2-10.2 are no less effective than the 
Federal requirements at 30 CFR 785.17. Therefore, that portion of the 
required amendment at 30 CFR 948.16(ee) regarding negative 
determination criteria has been satisfied and can be removed.
    In addition, the State was to submit documentation demonstrating 
that it had consulted with the NRCS in determining the nature and 
extent of the reconnaissance inspection as provided under CSR 38-2-
10.1. As mentioned above, the NRCS found the reconnaissance inspection 
procedures outlined in WVDEP's proposed policy, ``Prime Farmlands 
Identifications,'' to be acceptable. Because the NRCS concurs with the 
State's proposed reconnaissance inspection procedures, OSM finds the 
State's reconnaissance inspection requirements as set forth at CSR 38-
2-10.1 and further defined in the proposed policy, ``Prime Farmlands 
Identifications,'' to be no less effective than those Federal 
requirements set forth at 30 CFR 785.17(b), which require a 
reconnaissance inspection in all instances. Therefore, the remaining 
portion of the required amendment at 30 CFR 948.16(ee) requiring the 
concurrence of NRCS on the State's reconnaissance inspection procedures 
has been satisfied and can be removed.
    4. Spillway Design. 30 CFR 948.16(oo) provides that West Virginia 
must submit proposed revisions to Subsection 38-2-5.4(b)(8) of its 
Surface Mining Reclamation Regulations to require that excavated 
sediment control structures, which are at ground level and that have an 
open exit channel constructed of non-erodible material, be designed to 
pass the peak discharge of a 25-year, 24-hour precipitation event.

State Response

    The WVDEP is proposing language (Attachment 2) that all sediment 
control structures spillways will be designed based on a 25-year/24-
hour storm, except for haulroads.

    State rules at CSR 38-2-5.4.b.8 currently require all sediment 
control structures or other water retention structures be designed with 
spillways to safely pass a 25-year, 24-hour precipitation event. 
However, subsection 5.4.b.8 contains a provision that allows excavated 
sediment control structures, which are at ground level and have an open 
exit channel constructed of non-erodible material, to be designed to 
pass the peak discharge of a 10-year, 24-hour precipitation event.
    As discussed in the October 4, 1991, Federal Register (56 FR 50260) 
notice, the Federal regulations require that all sediment control 
structures not meeting the size or other criteria of 30 CFR 77.216(a) 
must have spillways designed to pass the peak discharge of a 25-year, 
6-hour precipitation event. Therefore, the requirement at subsection 
5.4.b.8 was found to be less effective than the Federal requirements at 
30 CFR 816/817.46(c)(2)(ii)(B) [now 30 CFR 816/

[[Page 21909]]

817.46(c)(2) and 30 CFR 816/817.49(a)(9)(ii)(C)].
    The Federal regulations at 30 CFR 816/817.46(c)(2) provide that a 
sedimentation pond must include either a combination of principal and 
emergency spillways or single spillway configured as specified in 30 
CFR 816/817.49(a)(9). The Federal regulations at 30 CFR 816/
817.49(a)(9)(ii)(C) further provide that the spillway for an 
impoundment not included in paragraph (a)(9)(ii) (A) and (B) of this 
section must be designed and constructed to safely pass a 25-year, 6-
hour or greater precipitation event as specified by the regulatory 
authority.
    On August 30, 1994, we provided the State a follow-up letter 
regarding several proposed revisions that the State had made to its 
program in 1993 (Administrative Record Number WV-934). As mentioned 
above, in October 1991, we had required the State to amend its program 
and provide that that all sediment control structures not meeting the 
size or other criteria of 30 CFR 77.216(a) must have spillways designed 
to pass the peak discharge of a 25-year, 6-hour precipitation event. 
Although we required the State to amend its program, the State had not 
proposed any revisions at the time. Instead, the State maintained that 
these types of structures by their vary nature are not subject to 
catastrophic failure or excessive erosion. According to the State, the 
design storm criteria are established to address these potentials and 
are of not significance for these structures. Initially WVDEP thought 
that the Illinois program contained a provision similar to the 10-year, 
24-hour standard for excavated sediment control structures that WVDEP 
was seeking to adopt for West Virginia. However, we explained that the 
Illinois program does not contain such a standard. Rather, the Illinois 
program contains an exemption from the quarterly inspection 
requirements for excavated sediment control structures. The inspection 
frequency was reduced because most excavated sediment control 
structures have no embankments to examine for structural weaknesses or 
other hazardous conditions. West Virginia has a similar standard.
    WVDEP stated that a spillway design for a 25-year, 24-hour 
precipitation event would adversely affect the effectiveness of the on-
bench sediment control system. We and WVDEP decided that an OSM 
engineer and a WVDEP engineer would be assigned to review the spillway 
design standards and determine if the proposed change would actually 
reduce the effectiveness of on-bench sediment control systems. Upon 
completion of the joint State/Federal review, it was determined that 
spillways designed to safely pass a 25-year, 24 hour precipitation 
event would only require minor changes, and they would not impact the 
use of excavated sediment control structures (Administrative Record 
Number WV-1273). In addition, the engineers determined that there is no 
peak discharge control problem because the open exit channels for these 
sediment control structures are currently larger than required due to 
the size of the equipment used to construct them. As the result of the 
review, WVDEP proposed revisions to its spillway design requirements at 
30 CFR 38-2-5.4.b.8.
    In its February 26, 2002, submission, Attachment 2 contains a 
proposed revision for CSR 38-2-5.4.b.8. As amended, the provision that 
exempted excavated sediment control structures from the 25-year, 24-
hour spillway design requirement is deleted. In its place, is language 
that provides the following: ``provided, however that this subsection 
does not apply to haulroads.'' As proposed, CSR 38-2-5.4.b.8. now reads 
as follows.

    5.4.b.8. Be designed to safely pass a twenty-five (25) year, 
twenty-four (24) hour precipitation event. The combination of both 
principal and/or emergency spillway of the structures shall be 
designed to safely pass the peak discharge of a twenty-five (25) 
year, twenty-four (24) hour precipitation event, provided, that a 
single open channel spillway may be used only if it is of non-
erodable construction and designed to carry sustained flows; or 
earth or grass-lined and designed to carry short term, infrequent 
flows at non-erosive velocities where sustained flows are not 
expected; provided, however, that this subsection does not apply to 
haulroads.

    The proposed exemption from the 25-year, 24-hour design standard 
for a haulroad drainage control system is consistent with 30 CFR 816/
817.151(d) and CSR 38-2-4.6, which provides that ditch lines, culverts, 
bridges or other structures associated with haulroads must be capable 
of passing the peak discharge of a 10-year, 24-hour precipitation 
event.
    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    We find that the proposed revisions at CSR 38-2-5.4.b.8 regarding 
spillway design requirements for sediment control and other water 
retention structures are no less effective than the Federal 
requirements at 30 CFR 816/817.46(c)(2) and 816/817.49(a)(9)(ii)(C). On 
May 23, 1990, we approved the 24 hour event standard as being no less 
effective than a 6-hour event standard (55 FR 21304, 21318). Therefore, 
the required amendment at 30 CFR 948.16(oo) has been satisfied and can 
be removed. Upon promulgation of a final rule by the State, WVDEP will 
be required to provide a copy of it to OSM. OSM will review it to 
ensure that the language contained therein is identical to that 
language which is being approved today. Any substantive differences in 
the language will be subject to further public review and approval by 
us as a program amendment.
    5. Certification of Sediment Control Structures. 30 CFR 948.16(tt) 
provides that West Virginia must submit proposed revisions to 
subsections 38-2-5.4(b)(1) and 5.4(d)(1) to require that all structures 
be certified as having been built in accordance with the detailed 
designs submitted and approved pursuant to subsection 3.6(h)(4), and to 
require that as-built plans be reviewed and approved by the regulatory 
authority as permit revisions.

State Response

    This required program amendment should be removed. The WVDEP has 
developed a procedure for review of as-built certifications (This 
procedure is included in the WVDEP Inspection and Enforcement 
Handbook B copy attached) For structures with minor design changes, 
the inspector will submit as-built plans in accordance with 5.4.b. 
Minor changes are those within the construction tolerances described 
in 3.35 of the rules. For structures with major design changes, a 
permit revision in accordance with 3.28.c of the rules is required 
to be submitted and approved prior to certification. The ``as 
built'' certifications are after review incorporated as part of the 
permit and the Aas built'' drawings become the design for the 
structure. A 1988 OSM directive (copy attached) describes the 
federal policy and procedures for processing construction 
certifications when they indicate that a structure has been

[[Page 21910]]

constructed differently from the approved design and this OSM 
directive treats ``as built'' certifications in a manner similar to 
the WV program.

    In its response to this required amendment, quoted above, WVDEP 
stated that minor changes are those within the construction tolerances 
described in subsection 3.35 of the rules. Sediment control structures 
that have been constructed with minor changes that are within approved 
construction tolerances are, in effect, built in accordance with the 
approved, certified designs in the preplan. Therefore, we find that 
such structures are built in compliance with the requirement at CSR 38-
2-5.4.b.1. which provides that sediment control structures be 
``constructed in accordance with the plans, criteria, and 
specifications set forth in the preplan.''
    WVDEP also stated that a permit revision is required for as-built 
structures with major design changes. Therefore, the requirements at 
CSR 38-2-3.28 concerning permit revisions would apply. In addition, CSR 
38-2-5.4.b.1., concerning design and construction requirements, 
provides that as-built plans must be submitted by the operator and 
approved by WVDEP immediately following construction. The as-built 
plans shall indicate the original design, the extent of changes, and 
reference points. CSR 38-2-5.4.b.1. also provides that all sediment 
control or other water retention structures be certified in accordance 
with CSR 38-2-5.4.d. This satisfies the portion of 30 CFR 948.16(tt) 
that requires certification in accordance with the detailed design 
plans submitted and approved pursuant to subsection 3.6.h.4, which 
requires the Secretary to approve detailed design plans for a structure 
before construction begins. CSR 38-2-5.4.d.1. provides that if as-built 
plans are submitted, the certification shall describe how and to what 
extent the construction deviates from the proposed design, and the 
explanation and certification of how the structure will meet the 
performance standards.
    We find that the West Virginia program requires that as-built 
sediment control structures be reviewed and approved as permit 
revisions, and that all sediment control structures shall be certified. 
Therefore, the required amendment at 30 CFR 948.16(tt) is satisfied and 
can be removed.
    6. Constructed Outcrop Barriers. 30 CFR 948.16(xx) provides that 
West Virginia must revise CSR 38-2-14.8(a) to specify design 
requirements for constructed outcrop barriers that will be the 
equivalent of natural barriers and will assure the protection of water 
quality and will insure the long-term stability of the backfill.

State Response

    The State added a new provision at CSR 38-2-14.8.a.6. The new 
language is as follows:

    14.8.a.6. Constructed outcrop barriers shall be designed using 
standard engineering procedures to inhibit slides and erosion to 
ensure the long-term stability of the backfill. The constructed 
outcrop barriers shall have a minimum static safety factor of 1.3, 
and where water quality is paramount, the constructed barriers shall 
be composed of impervious material with controlled discharge points.

    In addition, the State contended in its February 26, 2002, program 
submissions that:

    The word ``inhibit'' as in ``to inhibit slides and erosion'' is 
(no) less effective than the Federal standard of ``prevent'' at 30 
CFR 816.99(a).
    The State statutory language for outcrop barriers at W.Va. Code 
22-3-13(b)(25) requires the retention of the natural barrier to 
``inhibit'' slides and erosion. As set forth in the Federal Register 
dated January 21, 1981, OSM agrees that provisions regarding natural 
barriers at W.Va. Code 22-3-13(b)(25) and (c)(4) were found to be 
consistent with Section 515(b)(25) of SMCRA.

Standard Engineering Practices
    The constructed outcrop barriers are designed structures that have 
a required minimum long-term static safety factor, while the natural 
outcrop barriers are not designed structures and are not required to 
have a minimum factor of safety. Furthermore, the analysis of stability 
includes consideration of the material to be placed, the foundation, 
and site conditions. The WVDEP is in the process of developing 
guidelines for constructed outcrop barriers that will include: 
requirements for the outslope; sequencing of construction of the 
outcrop barrier; and minimum factor of safety when barrier is part of 
the sediment control system (Attachment 9).
    The State guideline for constructed outcrop barriers is contained 
in Attachment 9. It is entitled ``Constructed Outcrop Barriers.''
    Attachment 9 provides that standard engineering practices for 
constructed outcrop barriers shall include the following:
    1. The design of the constructed barrier shall take into 
consideration site conditions.
    2. The construction of the outcrop barrier shall occur 
simultaneously with the removal of the natural barrier and be located 
at or near the edge of the lowest coal seam being mined. Temporary 
measures must be (in) place until the barrier is constructed.
    3. The recommended outslope of the constructed barrier is 2v:1v 
(This is a typographical error and should be 2h:1v) with a static 
safety factor of 1.3.
    4. If the proposed outslope is steeper than 2v:1v (This is a 
typographical error and should be 2h:1v), the constructed barrier shall 
be designed to have a static safety factor of 1.5.
    5. If constructed barrier is part of the sediment control system 
(sediment ditch), the constructed barrier shall be designed to have a 
static safety factor of 1.5.
    As discussed in the January 21, 1981, Federal Register (46 FR 5919) 
notice, State law provides for the use of constructed outcrop barriers 
to prevent slides and erosion, while Section 525(b)(25) of SMCRA 
requires the retention of a natural barrier. It was determined in 1981 
that the State's alternative for a constructed barrier may be more 
stringent than the SMCRA requirement. However, at the time, the State 
program lacked specific criteria for the design of constructed outcrop 
barriers that will ensure that their performance in preventing slides 
and erosion would be more effective than that of a natural barrier.
    In April 1983, West Virginia submitted specific design criteria for 
outcrop barriers. The approval of the design criteria for constructed 
outcrop barriers was announced in the November 16, 1983, Federal 
Register notice (48 FR 52037). However, the design criteria were 
inadvertently deleted from the State program. As discussed in the 
October 4, 1991, Federal Register notice (56 FR 50265), we required the 
State to specify design requirements for constructed outcrop barriers.
    We later published a notice in the February 21, 1996, Federal 
Register (61 FR 6525) which announced the modification of the required 
amendment at 30 CFR 948.16(xx) requiring that the State amend its 
program at CSR 38-2-14.8.a to specify design requirements of outcrop 
barriers that will be equivalent to natural barriers and will assure 
the protection of water quality and ensure the long-term stability of 
the backfill. The proposed rule and the new guideline are intended to 
satisfy that requirement.
    Section 22-3-13(b)(25) of the Code of West Virginia (W. Va. Code) 
provides that constructed barriers may be allowed under specified 
circumstances, provided that, at a minimum, the constructed barrier 
must be of sufficient width and height to provide adequate stability 
and the stability factor must equal or exceed that of the natural 
outcrop barrier. Furthermore, where

[[Page 21911]]

water quality is paramount, the constructed barrier must be composed of 
impervious material with controlled discharge points.
    As discussed above, the revised rule at CSR 38-2-14.8.a.6 further 
provides that constructed outcrop barriers shall be designed using 
standard engineering procedures to inhibit slides and erosion to ensure 
the long-term stability of the backfill. The constructed outcrop 
barriers shall have a minimum static safety factor of 1.3, and where 
water quality is paramount, the constructed barriers shall be composed 
of impervious material with controlled discharge points. The proposed 
rule was included in WVDEP's program amendment of May 2, 2001 
(Administrative Record Number WV-1209). The promulgation of CSR 38-2-
14.8.a.6 was authorized by Enrolled Committee Substitute for House Bill 
2663. The bill was passed by the Legislature on April 14, 2001, and 
signed into law by the Governor on May 2, 2001 (Administrative Record 
Number WV-1210).
    In addition, WVDEP has proposed a guideline that further clarifies 
what standard engineering practices will be followed when allowing for 
the removal of a natural barrier and constructing an outcrop barrier. 
Approval of the proposed guideline is being made with the understanding 
that the State will correct the typographical errors noted above.
    We find that the specific design criteria described above will 
ensure that constructed outcrop barriers will be as effective as 
natural barriers in preventing slides and erosion. In addition, we find 
that the proposed rule at CSR 38-2-14.8.a.6, together with the proposed 
guideline containing standard engineering practices for the design of 
constructed outcrop barriers, are in accordance with Section 515(b)(25) 
of SMCRA. Therefore, the required program amendment codified at 30 CFR 
948.16(xx) regarding constructed outcrop barriers is satisfied with the 
adoption of the proposed rule and guideline and can be removed.
    7. Unjust Hardship Criterion. 30 CFR 948.16(nnn) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption, to 
revise Section 22B-1-7(d) to remove unjust hardship as a criterion to 
support the granting of temporary relief from an order or other 
decision issued under Chapter 22, Article 3 of the W. Va. Code.

State Response

    The WVDEP is proposing language (Attachment 3) to exclude unjust 
hardship as criteria to support the granting of temporary relief 
under WV Code 22-3.

    In its February 26, 2002, submission, WVDEP included Attachment 3. 
Attachment 3 contains a proposed revision to W. Va. Code Section 22B-1-
7, Appeals to boards. The attachment consists of additions and 
deletions to language at paragraphs (d) and (h) of Section 22B-1-7 and 
identifies how these statutory provisions are to be amended. Only 
paragraph (d) pertains to the required amendment relating to unjust 
hardship.
    WVDEP proposes to amend paragraph (d) by adding a proviso that 
provides as follows: ``Provided; however, the criterion of unjust 
hardship cannot be used to support the granting of temporary relief for 
an order or other decision issued under article three, chapter twenty-
two of this code.'' The proposed language was submitted to the 
Legislature for consideration.
    On February 27, 2002, the proposed language was modified and 
reported out of committee as Senate Bill 735. The revised language 
reads as follows: ``Provided, That unjust hardship shall not be grounds 
for granting a stay or suspension of such order, permit or official 
action for an order issued pursuant to article three, chapter twenty-
two of this code.'' Engrossed Senate Bill 735 passed the Senate on 
March 1, 2002, and was reported to the House Judiciary Committee where 
it died in committee without further action by the Legislature.
    As announced in the February 21, 1996, Federal Register (61 FR 
6516) on we did not approve the language at Section 22B-1-7(d) 
concerning allowing temporary relief where the appellant demonstrates 
that the executed decision appealed from will result in the appellant 
suffering an ``unjust hardship,'' because the language is inconsistent 
with Sections 514(d) and 525(c) of SMCRA, which do not allow temporary 
relief to be granted based on a showing of unjust hardship. As 
discussed in the July 14, 1998, Federal Register notice (63 FR 37775), 
our earlier required amendment regarding unjust hardship was modified 
based on a settlement agreement in West Virginia Mining and Reclamation 
Association v. Babbitt, Civil Action No. 2:96-0371 (S.D. W.Va., July 
11, 1997). We clarified our earlier decision by stating that Section 
22B-1-7(d) is not approved only to the extent that it includes unjust 
hardship as a criterion to support the granting of temporary relief 
from an order or other decision issued under Chapter 22, Article 3 of 
the W. Va. Code, which is the State counterpart to SMCRA.
    WVDEP has informed the Surface Mine Board that unjust hardship is 
an invalid basis for granting temporary relief for SMCRA purposes. In 
our meeting with the WVDEP on January 15, 2002, WVDEP stated that, to 
its knowledge, the Surface Mine Board has not used this criterion, and 
the State has never asked that it be a consideration in granting a stay 
or suspending an order pursuant to W. Va. Code 22B-1-7(d) 
(Administrative Record Number WV-1271).
    On October 26, 1988, the West Virginia Supreme Court of Appeals in 
Canestraro v. Faerber ruled that, ``When a provision of the West 
Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et 
seq., is inconsistent with Federal requirements in the Surface Mining 
Control and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the State Act 
must be read in a way consistent with the Federal Act.'' See Canestraro 
v. Faerber, 179 W. Va. 793, 374 S.E.2d 319 (1988) (Administrative 
Record Number WV-761).
    In another decision rendered on July 12, 1996, the West Virginia 
Supreme Court of Appeals held that, pursuant to 30 CFR 731.17(g), 
whenever changes to laws or regulations that make up the approved State 
program regarding surface mining reclamation are proposed by the State, 
no such change to the laws or regulations shall take effect for 
purposes of a State program until approved as an amendment by OSM. In 
addition, the Supreme Court ruled that a State regulation enacted 
pursuant to the West Virginia Surface Coal Mining and Reclamation Act 
(WVSCMRA), W. Va. Code 22A-3-1 to 40 (1993), [now West Virginia Code 
22-3-1 to 32 (1994 and Supp.1995)], must be read in a manner consistent 
with Federal regulations enacted in accordance with SMCRA, 30 U.S.C. 
1201 to 1328 (1986). See Charles Schultz v. Consolidation Coal Company, 
197 W.Va. 375, 475 S.E.2d 467 (1996) (Administrative Record Number WV-
1038).
    As discussed above, we have previously ruled that West Virginia's 
temporary relief provision at W. Va. Code Section 22B-1-7(d) cannot be 
approved ``to the extent that the unjust hardship criterion supports 
the granting of temporary relief from an order or other decision issued 
under Chapter 22, Article 3 of the West Virginia Code'' (63 FR 37775; 
July 14, 1998). The effect of that decision is that the unjust hardship 
criterion at W. Va. Code 22B-1-7(d) is

[[Page 21912]]

not part of the State's approved regulatory program (63 FR 37775). 
Furthermore, as mentioned above, WVDEP has never asked that unjust 
hardship be a consideration by the Surface Mine Board in granting a 
stay or suspending an order pursuant to W. Va. Code 22B-1-7(d), and it 
has informed the Board that it should never be a basis for granting 
temporary relief under the approved State program. In addition, the 
West Virginia Supreme Court of Appeals has held that ``when there is a 
conflict between the Federal and State provisions, the less restrictive 
State provision must yield to the more stringent Federal provision. * * 
* Canestraro, 374 S.E.2d at 321. In light of our disapproval of the 
statutory language that is the subject of this required amendment, and 
in light of the principles articulated in Canestraro, and Schultz, we 
now believe that the concerns identified in the required amendment at 
30 CFR 948.16(nnn) have been satisfied, thereby rendering the required 
amendment unnecessary. Therefore, we are removing it. However, to avoid 
confusion or misinterpretation of the approved State regulatory 
program, we recommend that the statutory provision discussed above be 
deleted.
    8. Economic Feasibility. 30 CFR 948.16(ooo) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption, to 
revise W. Va. Code 22B-1-7(h) by removing reference to Article 3, 
Chapter 22.

State Response

    In our meeting with the WVDEP on January 15, 2002, the WVDEP stated 
that W. Va. Code 22B-1-7(h) applies only to the Environmental Quality 
Board, which hears Clean Water Act appeals. In its February 26, 2002, 
submittal, WVDEP provided proposed language (at Attachment 3) to delete 
the reference to Article 3 Chapter 22 from W. Va. Code 22B-1-7(h). The 
language was included in Engrossed Senate Bill 735 and reported out of 
the Judiciary Committee on February 27, 2002. Despite WVDEP's good 
efforts, the bill did not pass the Legislature in the 2002 legislative 
session.
    We have previously ruled that West Virginia's administrative 
appeals provision at W. Va. Code 22B-1-7(h) could not be approved 
``only to the extent that it references Article 3, Chapter 22 of the W. 
Va. Code.'' (63 FR 37774, 37775; July 14, 1998). The effect of that 
decision is that the reference to Article 3 Chapter 22 at W. Va. Code 
22B-1-7(h) is not part of the approved West Virginia program. This 
disapproved provision should never be implemented by the State because 
the West Virginia Supreme Court of Appeals has held that ``when there 
is a conflict between the federal and state provisions, the less 
restrictive state provision must yield to the more stringent federal 
provision. * * * Canestraro, 374 S.E.2d at, 321. As noted in Finding 7, 
the West Virginia Supreme Court of Appeals also held in Schultz that no 
change in a State surface mining law or regulation can take effect for 
purposes of a State program until approved by OSM, and State surface 
mining reclamation regulations must be read in a manner consistent with 
Federal regulations enacted in accordance with SMCRA, Schultz, 475 
S.E.2d 467. (Administrative Record Number WV-1038). Because we have 
previously disapproved the language that is the subject of this 
required amendment, and because of the principle articulated in 
Canestraro and Schultz, we conclude that the required amendment at 30 
CFR 948.16(ooo) has been satisfied. Therefore, we are removing it.
    9. Bond Release. 30 CFR 948.16(qqq) provides that West Virginia 
must revise CSR 38-2-2.20, or otherwise revise the West Virginia 
program to clarify that a bond may not be released where passive 
treatment systems are used to achieve compliance with applicable 
effluent limitations.

State Response

    CSR 38-2-12.2.e was amended to provide as follows.

    12.2.e. Notwithstanding any other provisions of this rule, no 
bond release or reduction will be granted if, at the time, water 
discharged from or affected by the operation requires chemical or 
passive treatment in order to comply with applicable effluent 
limitations or water quality standards. Measures approved in the 
permit and taken during mining and reclamation to prevent the 
formation of acid drainage shall not be considered passive 
treatment; Provided, That the Director may approve a request for 
Phase I but not Phase II or III, release if the applicant 
demonstrates to the satisfaction of the Director that either. * * *

    CSR 38-2-12.2.e was amended, in effect, by prohibiting bond release 
if water discharged from the permit area requires chemical or passive 
treatment. In addition, a new sentence is added that clarifies that 
measures approved in the permit and taken during mining and reclamation 
to prevent the formation of acid drainage shall not be considered 
passive treatment.
    We find that as amended, the provision satisfies the required 
program amendment codified at 30 CFR 948.16(qqq) which can, therefore, 
be removed. We also find that the new language which clarifies that 
measures approved in the permit and taken during mining and reclamation 
to prevent the formation of acid drainage shall not be considered 
passive treatment, does not render the West Virginia program less 
effective than the Federal regulations. Such measures might include, 
for example, selective placement of acid-generating materials in the 
backfill, placing limestone or other alkaline-generating materials in 
the backfill in close proximity to acid-generating materials, and the 
use of underdrains to prevent groundwater from wetting acid-generating 
materials. Measures such as these are taken to prevent the formation of 
acid discharges, and not to treat such discharges once they are 
discovered. Therefore, we find the new provision does not render the 
West Virginia program less effective than the Federal regulations 
concerning bond release at 30 CFR 800.40, and the provisions concerning 
hydrologic balance protection at 30 CFR 816.41 and the backfilling and 
grading requirements at 30 CFR 816/817.102(f) and can be approved.
    10. Water Supply Replacement Waiver. 30 CFR 948.16(sss) provides 
that West Virginia must submit either a proposed amendment or a 
description of an amendment to be proposed, together with a timetable 
for adoption, to revise CSR 38-2-14.5(h) and W. Va. Code 22-3-24(b) to 
clarify that the replacement of water supply can only be waived under 
the conditions set forth in the definition of ``Replacement of water 
supply,'' paragraph (b), at 30 CFR 701.5.

State Response

    In our January 15, 2002, meeting with WVDEP, State officials said 
they would reevaluate the Federal language set forth in the definition 
of ``Replacement of water supply'' paragraph (b), at 30 CFR 701.5. 
Subsequently, in its March 8, 2002, letter, WVDEP stated that it had 
reevaluated its water replacement and waiver requirements at W. Va. 
Code 22-3-24 and in its rules. WVDEP stated that it plans to propose 
changes for the 2003 regular legislative session that would clarify 
that replacement of an affected water supply that is needed for the 
existing land use or for the post-mining land use cannot be waived. 
WVDEP stated that historically, under the State program, replacement 
waivers are not sought nor granted for such water supplies. In 
addition, WVDEP stated that, until it amends its program explicitly to 
be consistent with the

[[Page 21913]]

Federal water replacement requirement, it will only allow water 
replacement waivers in accordance with the provisions in the definition 
of ``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
    W. Va. Code 22-3-24(b) states that ``[a]ny operator shall replace 
the water supply of an owner of interest in real property who obtains 
all or part of the owner's supply of water for domestic, agricultural, 
industrial or other legitimate use from an underground or surface 
source where the supply has been affected by contamination, diminution 
or interruption proximately caused by the surface-mining operation, 
unless waived by the owner.'' CSR 38-2-14.5(h) limits the availability 
of a waiver. It provides that ``[a] waiver of water supply replacement 
granted by a landowner as provided in subsection (b) of section 24 of 
the Act shall apply only to underground mining operations, provided 
that a waiver shall not exempt any operator from the responsibility of 
maintaining water quality.'' The limitation of maintaining water 
quality is not sufficient to be no less effective than the 
corresponding Federal requirements.
    30 CFR 701.5 defines the term ``Replacement of water supply.'' Part 
(b) of the definition states that replacement requirements may be 
satisfied by demonstrating that a suitable alternative water source is 
available and could feasibly be developed, but only ``[i]f the affected 
water supply was not needed for the land use in existence at the time 
of loss, contamination, or diminution, and if the supply is not needed 
to achieve the postmining land use.* * *'' Thus, under Federal 
regulations, actual replacement of water supply is required unless 
consideration is given to effect on premining and postmining land uses. 
West Virginia's waiver provision contains no equivalent consideration. 
Federal law is therefore more restrictive and the State regulations are 
less effective.
    We have previously ruled that West Virginia's water replacement 
waiver provision could not be approved ``to the extent that* * * [it] 
would not be implemented in accordance with the definition of 
``Replacement of water supply'' at 30 CFR 701.5.'' (61 FR at 6524, 
February 21, 1996). In addition, OSM required that the West Virginia 
program be further amended to clarify that under W. Va. Code Section 
22-3-24(b) and CSR 38-2-14.5.h, the replacement of water supply can 
only be waived under the conditions set forth in the definition of 
``Replacement of water supply at 30 CFR 701.5(b). In the February 9, 
1999, Federal Register, OSM announced the approval of the State's 
definition of replacement of water supply at W.Va. Code 22-3-3(z), but 
we required that the State adopt a counterpart to 30 CFR 701.5(b) (64 
FR at 6202-6203). As noted above, the WVDEP has committed to allowing 
waivers only in a manner consistent with the Federal definition. This 
commitment complies with the mandate of the West Virginia Supreme Court 
of Appeals, which has held that ``when there is a conflict between the 
federal and state provisions, the less restrictive state provision must 
yield to the more stringent federal provision* * * Canestraro, 379 
S.E.2.d, at 321.
    As noted above in Finding 7, the West Virginia Supreme Court of 
Appeals has ruled that ``[w]hen a provision of the West Virginia 
Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et seq., is 
inconsistent with Federal requirements in the Surface Mining Control 
and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the State Act must be 
read in a way consistent with the Federal Act.'' Canestraro, 374 S.E.2d 
at 321 (Administrative Record Number WV-761).
    In addition, State rules must be read in a manner consistent with 
Federal regulations, Schultz. As noted above in Finding 7, the West 
Virginia Supreme Court of Appeals also held in Schultz that no change 
in a State surface mining law or regulation can take effect for 
purposes of a State program until approved by OSM, and State surface 
mining reclamation regulations must be read in a manner consistent with 
Federal regulations enacted in accordance with SMCRA, Schultz, 475 
S.E.2d 467. (Administrative Record Number WV-1038).
    Because of the State's commitment to comply with the more 
restrictive Federal waiver requirement, and because of the principles 
established in Canestraro and Schultz, we conclude that the required 
amendment at 30 CFR 948.16(sss) has been satisfied. Therefore, we are 
removing it. We recommend that the provision be included in the program 
at some future date to avoid confusion or misinterpretation.
    11. Existing Structures and Approximate Original Contour (AOC). 30 
CFR 948.16(vvv)(1) provides that West Virginia must amend its program 
to be consistent with 30 CFR 701.11(e)(2) by clarifying that the 
exemption at CSR 38-2-3.8(c) does not apply to the requirements to 
restore the land to AOC.

State Response

    This required program amendment should be removed. The State 
regulation in subsection 3.8.c. was amended to not apply to new and 
existing coal waste facilities and was submitted to the Office of 
Surface Mining on March 17, 2000, as a program amendment. A copy of 
the revised subsection 3.8.c. is attached and is pending OSM action. 
The State saw no need to add language about approximate original 
contour to regulation at subsection 3.8(c) since the WV Surface Coal 
Mining and Reclamation Act performance standard at Section 22-3-
13(b)(3) is clear about the requirement to restore the approximate 
original contour with respect to surface mines.

    On August 18, 2000 (65 FR 50413), we approved the State's change 
which clarifies that the exemption at CSR 38-2-3.8.c. does not apply to 
new and existing coal waste facilities. In that same notice, we revised 
30 CFR 948.16(vvv)(1) by deleting the requirement to clarify that the 
exemption at CSR 38-2-3.8(c) does not apply to the requirements for new 
and existing coal mine waste disposal facilities. However, we continued 
to require at revised 30 CFR 948.16(vvv)(1) that the State clarify that 
the exemption at CSR 38-2-3.8(c) does not apply to the requirement to 
restore the land to approximate original contour (AOC).
    In its response quoted above, WVDEP stated that Section 22-3-
13(b)(3) of the West Virginia Surface Coal Mining and Reclamation Act 
is clear about the requirement to restore the AOC with respect to 
surface mines. W.Va. Code at 22-3-13(b)(3) requires surface mines to be 
restored to AOC, except those which receive a variance under W.Va. Code 
22-3-13(c) concerning mountaintop removal mining operations, and for 
those situations where the overburden is thin and the resulting 
material is insufficient to achieve AOC. In addition, W.Va. Code 22-3-
13(d) and (e) provide for variances from AOC for steep slope mining 
operations under certain circumstances. Given this clarification, we 
are approving the State's response to the required amendment at 30 CFR 
948.16(vvv)(1) to the extent that the exemption at CSR 38-2-3.8(c) does 
not apply to the requirement to restore the land to AOC. Therefore, to 
the extent that CSR 38-2-3.8(c) is limited to existing facilities and 
does not apply to the requirement to restore the land to AOC, we find 
that the required amendment codified at 30 CFR 948.16(vvv)(1) is 
satisfied and can be removed.
    12. Certification of Haulroads. 30 CFR 948.16(vvv)(2) provides that 
West Virginia must amend CSR 38-2-4.12 to reinstate the following 
deleted language:

[[Page 21914]]

``and submitted for approval to the Director as a permit revision.''

State Response

    The WVDEP has established guidelines (Series 20 Effective 1-97, 
page 22 of the I&E Handbook, Attachment 4) for approval of minor 
revisions to the original design. Minor deviations from the approved 
plan for haulroads (width, grade, etc.) are permissible as long they 
are within the construction tolerance specified in 38-3.35 [38-2-
3.35].

    The provision at CSR 38-2-4.12 concerns the certification of 
haulroads. However, the procedures that were initially submitted to OSM 
only applied to the approval of as-built certifications for drainage 
systems. During the January 15, 2002, meeting WVDEP agreed to 
reevaluate this issue and, if necessary, amend its policy to make it 
applicable to haulroads (Administrative Record Number WV-1271).
    On February 26, 2002, WVDEP submitted revised guidelines for the 
approval of minor revisions to the original design of haulroads 
(Administrative Record Number WV-1276). The guidelines are set forth in 
Attachment 4. As noted above, the State clarified that minor deviations 
from the approved plan for haulroads are permissible so long as they 
are within the construction tolerance limits specified in CSR 38-2-
3.35, not 38-3.35 as quoted above.
    Attachment 4 is entitled, ``Minor Revisions Approvable by Field 
Level Personnel'' and contains the following language:
    Purpose: Establish guidelines for approval of minor adjustments to 
original proposals.
    Policy/Procedures: Minor revisions to original designs must be 
within the construction tolerances specified in 38-2-3.35. If not, a 
permit revision is required. The following are examples of minor 
revisions that are approvable at the field inspector level.
    1. Minor drainage structure configuration changes (i.e., round vs. 
square, spillway one one side instead of the other, etc.) as long as 
the required sediment storage capacity is maintained. (Approved by 
virtue of the inspector signing off on the as-built certification)
    2. Minor road width/slope configuration (as long as the width/slope 
do not compromise safety considerations). (Approved as an as-built 
certification)
    3. Additional sediment control capacity (i.e., additional sumps on 
roads, pre sumps in front of sediment ponds). (Approved as an as-built 
certification)
    4. Species substitution on planting plans (i.e., substituting 
legume for legume, hardwoods for hardwoods, etc.). Approved by letter 
submittal and inspector signs off on it.
    5. Minor bench size changes on fills (i.e., wider than twenty (20) 
feet. (Approved on the final certification)
    6. Outlets/spillways constructed of different material than 
originally proposed. (Approved on the as-built certification)
    7. Additional rock flumes on backfill areas (letter approval when 
constructed).
    8. Minor encroachment of the permit boundary (i.e., slips, 
shootovers, etc.). These need to be covered with a notice of violation 
(NOV) then shown on a progress map or on the final map. The acreage 
involved has to be included in the disturbed acreage number on the 
Phase I release application, and the bond reduction calculated 
accordingly.
    Keep in mind that some of these changes need to be delineated on 
the ``map of record.'' This can be done by requesting a progress map to 
accompany the certification or letter, or at a mid term review, or at 
the time of final map submittal (Phase I release).
    As described in the July 24, 1996, Federal Register notice (61 FR 
38384), we approved West Virginia's haulroad certification 
requirements, except to the extent that the Director (now Secretary) is 
removed from the responsibility of reviewing permit revisions as 
required under 30 CFR 774.11(c). In addition, we required the State to 
reinstate the following deleted language at CSR 38-2-4.12, ``and 
submitted for approval to the Director as a permit revision.''
    CSR 38-2-3.35 provides that all grade measurements and linear 
measurements in the State's rules shall be subject to a tolerance of 
two (2) percent. All angles in the rules shall be measured from the 
horizontal and shall be subject to a tolerance of five (5) percent. 
Provided, however, this allowable deviation from the approved plan does 
not affect storage capacity and/or performance standards. We announced 
our approval of these requirements in the February 9, 1999, Federal 
Register (64 FR 6208). The approved tolerances pertain to the amount of 
allowed variance between the approved designs in the permit application 
and the ``as built'' measurements of those designs.
    Only Item (2) of the proposed guidelines described above relates to 
haulroads. As noted in Attachment 4, a minor road width/slope 
configuration, as long as the width/slope revision is within the 
construction tolerance limits specified in CSR 38-2-3.35 and does not 
compromise safety considerations, can be approved as an as-built 
certification by field personnel. All other as-built haulroad 
configurations must be approved by the Secretary as permit revisions.
    Neither SMCRA nor the Federal regulations provides for the approval 
of as-built certifications that are within the construction tolerance 
limits as set forth in CSR 38-2-3.35. However, we find that the 
existing State requirements regarding as-built certifications, together 
with the proposed State clarification regarding minor changes in the 
width and/or slope of haulroads, as described in Item (2) of Attachment 
4, appear reasonable and are not inconsistent with SMCRA or the Federal 
regulations. Because the State has clarified that only minor deviations 
from the approved designs for haulroads are permissible as long as they 
are within the construction tolerance limits specified at CSR 38-2-
3.35, and all other as-built haulroad configurations that exceed those 
limits require the Secretary's approval as permit revisions, we are 
approving the State's proposal and removing the required amendment at 
30 CFR 948.16(vvv)(2) which requires that all as-built certifications 
for haulroads be submitted and approved as permit revisions. This 
approval is limited to minor as-built haulroad certifications as 
described herein and does not apply to the other proposed minor 
revisions that field personnel may authorize as described in Attachment 
4, ``Minor Revisions Approvable by Field Level Personnel,'' Series 20, 
page 22 of the Inspection and Enforcement Handbook. The other revisions 
mentioned therein do not pertain to this rulemaking.
    13. Slurry Impoundments. 30 CFR 948.16(vvv)(3) provides that West 
Virginia must amend its program by clarifying that the requirements at 
CSR 38-2-5.4(c) also apply to slurry impoundments.

State Response

    The WVDEP is proposing a change to subsection 5.4.d.4 
(Attachment 5) which clarifies that non-MSHA size coal processing 
waste dams and embankments will be certified by a registered 
professional engineer as indicated in 30 CFR 780.25.

    In the July 24, 1996, Federal Register (61 FR 38384), we found that 
the removal of the words, ``which may include slurry impoundments'' 
from CSR 38-2-5.4.c. made it unclear as to whether slurry impoundments 
are subject to the impoundment requirements at CSR 38-2-5.4.c. If CSR 
38-2-5.4.c. does not apply to slurry impoundments (which appeared to be 
the purpose of the deletion), the provision is rendered less effective 
than 30 CFR 816.49 and 817.49.

[[Page 21915]]

    The State's existing rules at CSR 38-2-22.4.c. governing small 
impoundments state that coal refuse sites which result in impoundments 
which are not subject to the Dam Control Act or the Federal Mine Health 
and Safety Act shall be designed, constructed, and maintained subject 
to the requirements of this subsection and subsections CSR 38-2-5.4 and 
22.5.j.6.
    By referencing subsection 5.4, the required amendment at 30 CFR 
948.16(vvv)(3) appears to be satisfied in so far as it is clear that 
all non-MSHA size or small coal refuse impoundments must comply with 
the State's impoundment requirements at subsection 5.4. However, 
because CSR 38-2-5.4.d allows certain impoundments to be certified by a 
registered professional engineer or a licensed land surveyor, we 
questioned whether the State's existing requirements were as effective 
as the Federal rules. The Federal requirements at 30 CFR 
780.25(a)(3)(i) provides that all coal refuse impoundments, regardless 
of size, must be certified by a registered professional engineer. In 
addition, it was unclear if coal refuse dams and embankments which are 
subject to the Dam Control Act or the Federal Mine Health and Safety 
Act are subject to the impoundment requirements at CSR 38-2-5.4(c).
    On February 26, 2002, WVDEP submitted the proposed revision 
described above to its program (Administrative Record Number WV-1276). 
Attachment 5 contains a proposed revision to CSR 38-2-5.4.d. According 
to the State, this provision is to be amended at subdivision 38-2-
5.4.d.3. by adding the words ``except all coal processing waste dams 
and embankments covered by subsection 22.4.c. shall be certified by a 
registered professional engineer.'' As amended, CSR 38-2-5.4.d.3. would 
read as follows: Design and construction certification of embankment 
type sediment control structures may be performed only by a registered 
professional engineer or licensed land surveyor experienced in 
construction of embankments ``except all coal processing waste dams and 
embankments covered by subsection 22.4.c. shall be certified by a 
registered professional engineer.''
    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    As discussed above, CSR 38-2-22.4.c. clarifies that CSR 38-2-5.4 
applies to small, non-MSHA size coal refuse dams and embankments. In 
addition, the proposed revision at CSR 38-2-5.4.d.3 clarifies that all 
small coal refuse dams and embankments must be certified by a 
registered professional engineer. Furthermore, CSR 38-2-5.4.d.4. 
provides that the design and construction of coal refuse impoundments 
meeting the MSHA size or other requirements at 30 CFR 77.216(a) may 
only be performed by a registered professional engineer. Given that 
there are design and construction certification requirements for both 
MSHA and non-MSHA size coal refuse impoundments at CSR 38-2-5.4.d, the 
structure of this section implies that all coal refuse impoundments 
must comply with the impoundment requirements at CSR 38-2-5.4.c. In 
addition, CSR 38-2-22.1 requires that all coal slurry impoundments, 
including MSHA size impoundments, must comply with all applicable 
requirements of the State program. These would include those 
requirements contained in CSR 38-2-5.4. In accordance with 30 CFR 
780.25(a)(3)(i) and 784.16(a)(3)(i), we are approving the proposed 
revision at CSR 38-2-5.4.d.3. which provides that all coal processing 
waste dams and embankments covered by subsection 22.4.c. shall be 
certified by a registered professional engineer. Furthermore, given 
that the State has clarified that slurry impoundments, regardless of 
size, are subject to the requirements of CSR 38-2-5.4.c., we find that 
the required amendment at 30 CFR 948.16(vvv)(3) is satisfied and can be 
removed.
    Upon promulgation of a final rule by the State, WVDEP will be 
required to provide a copy of it to OSM. OSM will review it to ensure 
that the language contained therein is identical to that language which 
is being approved today. Any substantive differences in the language 
will be subject to further public review and approval by us as a 
program amendment.
    14. Coal Refuse Disposal in the Backfill. 30 CFR 948.15(vvv)(4) 
provides that West Virginia must amend CSR 38-2-14.15(m), or otherwise 
amend its program to require compliance with 30 CFR 816/817.81(b), (d), 
and (e) regarding coal refuse disposal, foundation investigations and 
emergency procedures and to clarify that where the coal processing 
waste proposed to be placed in the backfill contains acid-or toxic-
producing materials, such material must not be buried or stored in 
proximity to any drainage course such as springs and seeps, must be 
protected from groundwater by the appropriate use of rock drains under 
the backfill and along the highwall, and be protected from water 
infiltration into the backfill by the use of appropriate methods such 
as diversion drains for surface runoff or encapsulation with clay or 
other material of low permeability.

State Response

    This required program amendment should be removed. Coal refuse 
placed in the backfill pursuant to subsection 14.15(m) is placed 
into the mine workings or excavation areas. This placement, when 
done in accordance with the State's backfilling and grading, 
stability and toxic material handling plan requirements, is 
consistent with the provisions of 30 CFR 816.81 and 817.81.

    In our January 15, 2002, meeting with WVDEP (Administrative Record 
Number WV-1271), State officials agreed to clarify how the State's 
existing rules require that coal processing waste outside the permit 
area must be disposed of in accordance with the standards at 30 CFR 
816/817.81(b). In addition, WVDEP would clarify how its rules require 
sufficient foundation investigations as required by 30 CFR 816/
817.81(d). Further, WVDEP agreed to provide us with an explanation of 
how its other program requirements regarding underdrains, diversions, 
and toxic handling plans apply to the disposal of coal refuse as 
allowed by CSR 38-2-14.14.m. Finally, they noted that the State's 
emergency procedures at CSR 38-2-14.15.m.2. are no less effective than 
the Federal requirements at 30 CFR 816/817.81(e).
    Material from Outside the Permit Area: In its February 26, 2002, 
response State officials assured us that WVDEP requires the permittee 
to identify the source of the coal refuse to be disposed of in the 
backfill in addition to the laboratory testing. Any changes in the 
source of the coal refuse require the approval of the Secretary. The 
State noted that its rules at CSR 38-2-14.15.m.2. clearly require that 
prior approval of the Secretary is necessary

[[Page 21916]]

before placing coal refuse material in the backfill, regardless of 
where the material originates. This assurance from the State and the 
existing requirements at CSR 38-2-14.15.m.2. ensure that, as required 
by 30 CFR 816/817.81(b), coal refuse from activities located outside 
the permit area must be approved by the Secretary, and the approval 
must be based on a showing that the disposal will be in accordance with 
the standards set forth in CSR 38-2-14.15.m.
    Foundation Investigations: According to State officials, the part 
of the required program amendment relating to foundation investigations 
is satisfied due to the requirements at CSR 38-2-14.15.a. and 14.15.m. 
Those requirements provide that the backfill must be designed and 
certified by a registered professional engineer so that a minimum long-
term static safety factor of 1.3 is achieved for the final graded 
slope. All stability analyses include properties of the material to be 
placed, properties of the foundation (whether on solid bench or 
backfill) and include site conditions that will affect stability. The 
State requirements at CSR 38-2-14.15.a. and 14.15.m. ensure that 
sufficient foundation investigations, including any necessary 
laboratory testing of foundation material, will be performed prior to 
placing any coal refuse in a backfill as required by 30 CFR 816/
817.81(d).
    Acid Material Handling Plan: In its February 26, 2002, response 
WVDEP clarified that coal processing waste cannot be placed in the 
backfill pursuant to CSR 38-2-14.15.m., unless it is non-acid and/or 
non-toxic producing or is rendered non-acid and/or non-toxic producing 
pursuant to subsection 14.15.m.2.
    CSR 38-2-14.15.m.2. provides the following:

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

    WVDEP officials stated that the rules at subsection 14.6. apply to 
the handling of all acid producing material. CSR 38-2-14.6.a. requires 
that all acid-forming or toxic-forming material be handled and treated 
in accordance with the approved toxic handling plan. According to State 
officials, all coal refuse must be rendered non-toxic or non-acid 
producing before it is placed in the backfill. Furthermore, any 
alkaline addition that may be required must occur prior to placement in 
the backfill.
    In addition, CSR 38-2-14.6.b. provides that, ``[a]cid-forming or 
toxic-forming material shall not be buried or stored in proximity to a 
drainage course or groundwater system.'' Therefore, when a toxic 
handling plan for the disposal of acid-forming or toxic-forming 
materials is submitted under CSR 38-2-14.15.m.2.B., the plan must 
identify whether or not a drainage course or groundwater system exists 
in proximity to the burial site. If such a drainage course or 
groundwater system exists in proximity to the burial site, the 
Secretary must disapprove the burial of the acid-producing or toxic-
producing material at the proposed site. This requirement ensures that 
where the coal processing waste proposed to be placed in the backfill 
contains acid- or toxic-producing materials, such materials cannot be 
buried or stored in proximity to any drainage course such as springs 
and seeps as required by 30 CFR 816/817.83(a) and 30 CFR 816/
817.102(e).
    In addition, we note that CSR 38-2-14.16.g. also provides that the 
disposal of coal processing waste and underground development waste in 
the mined out area of previously mined areas must be done in accordance 
with Section 22, except that a long-term static safety factor of 1.3 
must be achieved. Subsection 14.16.g. ensures that coal refuse placed 
in the backfill on previously mined areas is protected from groundwater 
by the appropriate use of rock drains under the backfill and along the 
highwall and from water infiltration into the backfill by the use of 
appropriate methods such as diversion drains for surface runoff or 
encapsulation with clay or other material of low permeability. 
Subsection 14.16.g. contains requirements regarding the disposal of 
coal processing waste in the backfill that are no less effective than 
the Federal requirements at 30 CFR 816/817.83(a) and 30 CFR 816/
817.102(e)
    Emergency Procedures: 30 CSR 38-2-14.15.m.2. provides that a 
qualified registered professional engineer, experienced in the design 
of similar earth and waste structures, shall certify the design of the 
disposal facility. If any examination or inspection discloses that a 
potential hazard exists, the Secretary shall be informed promptly of 
the finding and of the emergency procedures formulated for public 
protection and remedial action. If adequate procedures cannot be 
formulated or implemented, the Secretary shall be notified immediately, 
and the Secretary will then notify the appropriate agencies that other 
emergency procedures are required to protect the public. Subsection 
14.15.m.2. contains emergency procedures that are substantively 
identical to the Federal requirements at 30 CFR 816/817.81(e).
    As discussed above, we find that CSR 38-2-14.15.m.2. provides that 
the disposal of coal processing waste outside the permit area must be 
disposed of in accordance with the standards at CSR 38-2-14.15.m., as 
required by 30 CFR 816/817.81(b). The State's backfilling requirements 
at subsections 14.15.a. and 14.15.m. ensure that sufficient foundation 
investigations, including any necessary laboratory testing of 
foundation material, will be performed prior to placing any coal refuse 
in a backfill as required by 30 CFR 816/817.81(d). The State program 
provisions at CSR 38-2-14.15.m.2., CSR 38-2-14.6. and CSR 38-2-14.16.g. 
prohibit the burial or storage of acid-forming or toxic-forming 
materials in the backfill in proximity to a drainage course or 
groundwater system and ensure the protection of acid- or toxic-forming 
material from groundwater or from infiltration into the backfill as 
required by 30 CFR 816/817.83(a) and 30 CFR 816/817.102(e). Finally, 
CSR 38-2-14.15.m.2. contains emergency procedures that are no less 
effective than the Federal emergency procedures at 30 CFR 816/
817.81(e). Therefore, we find that the required program amendment 
codified at 30 CFR 948.16(vvv)(4) relating to the disposal of coal 
refuse in the backfill has been satisfied and can be removed.
    15. Subsidence Control Plan. 30 CFR 948.16(zzz) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption to 
revise 38-2-3.12.a.1., or otherwise amend the West Virginia program to 
require that the map of all lands, structures, and drinking, domestic 
and residential water supplies which may be materially damaged by 
subsidence show the type and location of all such lands, structures, 
and drinking, domestic and residential water supplies within the permit 
and adjacent areas, and to require that the permit application include 
a narrative indicating whether subsidence, if it occurred, could cause 
material damage to or diminish the value or reasonably foreseeable use 
of such structures or renewable resource lands or could contaminate, 
diminish, or interrupt drinking, or residential water supplies.

[[Page 21917]]

State Response

    In its May 2, 2001, submittal, the State amended CSR 38-2-3.12.a.1. 
concerning subsidence control plans by adding the words, ``a narrative 
indicating'' to the survey and map requirements of this subsection. As 
amended, this provision requires a survey, map, and a narrative 
indicating whether or not subsidence could cause material damage to the 
identified structures and water supplies. We find that the addition of 
the words ``a narrative indicating'' satisfies the narrative 
requirement codified at 30 CFR 948.16(zzz).
    In our January 15, 2002, meeting with WVDEP, State officials agreed 
to modify its permit application to ensure that the identification of 
structures would also indicate the type of structures being identified. 
In its February 26, 2002, letter, WVDEP submitted (at Attachment 6) a 
portion of its permit application that it had modified to require the 
identification of the location and type of structures, streams, 
renewable resource lands and water works. Therefore, the applicant must 
identify both the location and type of structures within a 30-degree 
angle of draw. With that submittal, the State has satisfied the 
requirement that the map show the location and type of structures that 
could be materially damaged by subsidence. We find that the revised 
permit application together with revised CSR 38-2-3.12.a.1. satisfy the 
requirements at 30 CFR 948.16(zzz) and can be approved. Therefore, 30 
CFR 948.16(zzz) can be removed.
    16. Water Supply Survey. 30 CFR 948.16(aaaa) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption to 
revise CSR 38-2-3.12.a.2., or otherwise amend the West Virginia program 
to require that the water supply survey required by CSR 38-2-3.12.a.2. 
include all drinking, domestic, and residential water supplies within 
the permit area and adjacent area, without limitation by an angle of 
draw, that could be contaminated, diminished, or interrupted by 
subsidence.

State Response

    In our January 15, 2002, meeting, WVDEP agreed to amend its 
program. By letter dated February 26, 2002, WVDEP sent us draft 
language (at Attachment 7) that it had submitted to the State 
Legislature for approval. The proposed amendment clarifies that the 
State reserves the right to request surveys within a larger area based 
on evaluation of the application. As submitted, the revised language at 
CSR 38-2-3.12.a.1. provides that the applicant for an underground coal 
mining permit must provide a survey on a map that identifies 
structures, perennial and intermittent streams or renewable resource 
lands and a narrative indicating whether or not subsidence could cause 
material damage or diminution of value or use of such structures or 
renewable resource lands both on the permit and adjacent areas within 
an angle of draw of at least 30 degrees ``unless a greater area is 
specified by the Secretary.'' In addition, the State has revised CSR 
38-2-3.12.a.2. to also require a survey of the quality and quantity of 
water supplies that could be contaminated, diminished or interrupted by 
subsidence ``within the permit area and adjacent areas.''
    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    We find that the emergency rules approved by West Virginia satisfy 
the requirements codified at 30 CFR 948.16(aaaa) and can be approved. 
Therefore, 30 CFR 948.16(aaaa) can be removed. Upon promulgation of a 
final rule by the State, WVDEP will be required to provide us with a 
copy. We will review it to ensure that the language contained therein 
is identical to that language which is being approved today. Any 
substantive differences in the language will be subject to further 
public review and approval by us.
    17. Presubsidence Survey. 30 CFR 948.16(bbbb) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption to 
revise 38-2-3.12.a.2., or otherwise amend the West Virginia program to 
require that the permit applicant pay for any technical assessment or 
engineering evaluation used to determine the premining quality of 
drinking, domestic or residential water supplies, and to require that 
the applicant provide copies of any technical assessment or engineering 
evaluation to the property owner and to the regulatory authority.

State Response

    In our January 15, 2002, meeting, WVDEP agreed to amend its program 
to clarify that the permit applicant must pay for any surveys, 
including technical assessments or engineering evaluations, conducted 
to determine the premining quality and quantity of water supplies and 
to require that copies of any technical assessments or engineering 
evaluations prepared as part of the survey be provided to the property 
owner and the WVDEP. In its February 26, 2002, letter, WVDEP submitted 
language at Attachment 7 to amend CSR 38-2-3.12.a.2.B. to address this 
issue. As amended, CSR 38-2-3.12.a.2.B. provides that ``at the cost of 
the applicant,'' a written report of the survey ``containing any 
technical assessments and engineering evaluation used in the survey'' 
shall be prepared and signed by the person or persons who conducted the 
survey. The provision also provides that copies of the report shall be 
provided to the property owner and to the Secretary
    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    We find that, to the extent that CSR 38-2-3.12.a.2.B. requires the 
permit applicant to pay for the actual technical assessments or 
engineering evaluations, these amendments satisfy the required 
amendment codified at 30 CFR

[[Page 21918]]

948.16(bbbb) and can be approved. Therefore, 30 CFR 948.16(bbbb) can be 
removed. Upon promulgation of a final rule by the State, WVDEP will be 
required to provide us with a copy. We will review it to ensure that 
the language contained therein is identical to that language which is 
being approved today. Any substantive differences in the language will 
be subject to further public review and approval by us.
    18. Extension of the 90-Day Abatement Period. 30 CFR 948.16(ffff) 
provides that West Virginia must amend CSR 38-2-16.2.c.4. or otherwise 
amend the West Virginia program to be no less effective than the 
Federal regulations at 30 CFR 817.121(c)(5), which provide that an 
extension of the 90-day abatement period may be granted for one of only 
three reasons: that subsidence is not complete; that not all subsidence 
related material damage has occurred; or that not all reasonably 
anticipated changes have occurred affecting the protected water supply.

State Response:

    In its program amendment submittal dated May 2, 2001 
(Administrative Record Number WV-1209), the State amended CSR 38-2-
16.2.c.4 regarding bonding for subsidence damage. CSR 38-2-16.2.c.4 has 
been revised in pertinent part as follows.

    The director may extend the ninety (90) day abatement period but 
such extension shall not exceed one (1) year from the date of the 
notice. Provided, however, the permittee demonstrates in writing, 
and the director concurs that subsidence is not complete, that not 
all probable subsidence related material [damage] has occurred to 
lands or structures; or that not all reasonably anticipated changes 
have occurred affecting the water supply, and that it would be 
unreasonable to complete repairs or replacement within the ninety 
(90) day abatement period. If extended beyond ninety (90) days, as 
part of the remedial measures, the permittee shall post an escrow 
bond to cover the estimated costs of repairs to land or structures, 
or the estimated cost to replace water supply.

    As discussed in the February 9, 1999, Federal Register notice, the 
State's rule at subsection 16.2.c.4. provided for an extension to the 
90-day abatement period (64 FR 6212-6213). However, it allowed an 
extension if the permittee demonstrates that it would be unreasonable 
to complete repairs within the 90-day abatement period. Because Federal 
rules limit the circumstances under which an extension to the 90-day 
abatement period can be granted, it appeared that operators in West 
Virginia could get extensions to the abatement period for additional 
reasons.
    The required program amendment codified at 30 CFR 948.16(ffff) 
requires the State to amend the West Virginia program at CSR 38-2-
16.2.c.4. to be no less effective than the Federal regulations at 30 
CFR 817.121(c)(5), which provide that an extension of the 90-day 
abatement period may be granted for one of only three reasons: that 
subsidence is not complete; that not all subsidence-related material 
damage has occurred; or that not all reasonably anticipated changes 
have occurred affecting the protected water supply. We find that the 
State's amendment to CSR 38-2-16.2.c.4., as quoted above, provides for 
extensions to the 90-day abatement period that are no less effective 
than those set forth in 30 CFR 817.121(c)(5). Therefore, the required 
program amendment at 30 CFR 948.16(ffff) has been satisfied, and it can 
be removed. We are approving this revision with the understanding that 
the State will revise subsection 16.2.c.4. and insert the word 
``damage'' after the words ``subsidence-related material'' in the third 
sentence to correct a typographical error.
    19. Bonding for Water Supply Replacement. 30 CFR 948.16(gggg) 
provides that West Virginia must amend CSR 38-2-16.2.c.4, or otherwise 
amend the West Virginia program to be no less effective than the 
Federal regulations at 30 CFR 817.121(c)(5) by requiring additional 
bond whenever protected water supplies are contaminated, diminished, or 
interrupted by underground mining operations conducted after October 
24, 1992. The amount of the additional bond must be adequate to cover 
the estimated cost of replacing the affected water supply.
    As discussed in the February 9, 1999, Federal Register, 30 CFR 
817.121(c)(5) requires that the permittee post additional bond whenever 
protected water supplies contaminated, diminished or interrupted by 
underground mining activities conducted after October 24, 1992 are not 
replaced within a specified time (64 FR 6212-6213). However, the State 
rule limited this requirement to water supplies that are affected by 
subsidence whereas the Federal rule applies this requirement to all 
water supplies affected by underground mining operations in general.

State response

    In its February 26, 2002, submission, WVDEP officials stated that 
additional bond would be required whenever a protected water supply is 
contaminated, diminished, or interrupted by underground mining, and the 
amount of bond to be posted would be based on the estimated cost of 
replacing the water supply (Administrative Record No. WV-1276). 
However, for clarification, WVDEP proposed to amend CSR 38-2-16.2.c.4. 
to read as follows:

    16.2.c.4. Bonding for Subsidence Damage: The Secretary shall 
issue a notice to the permittee when subsidence related material 
damage has occurred to lands, structures, or when contamination, 
diminution or interruption occurs to a domestic or residential water 
supply, and that the permittee has ninety (90) days from the date of 
notice to complete repairs or replacement. The Secretary may extend 
the ninety (90) day abatement period but such extension shall not 
exceed one (1) year from the date of the notice. Provided, however, 
the permittee demonstrates in writing, and the Secretary concurs 
that subsidence is not complete, that not all probable subsidence 
related material [material damage] has occurred to lands or 
structures; or that not all reasonably anticipated changes have 
occurred affecting the water supply, and that it would be 
unreasonable to complete repairs or replacement within the ninety 
(90) day abatement period. If extended beyond ninety (90) days, as 
part of the remedial measures, the permittee shall post an escrow 
bond to cover the estimated costs of repairs to land or structures, 
or the estimated cost to replace water supply.

    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    As proposed, the emergency rules at subsection 16.24.c.4. require 
additional bond whenever domestic or residential water supplies are 
contaminated, diminished, or interrupted by underground mining 
operations, not just by subsidence. In addition, the amount of the 
additional bond must be adequate to cover the estimated cost of 
replacing the affected water supply. Therefore, we find that proposed 
30 CSR 38-2-16.24.c.4. is no less effective than the Federal 
requirements at 30 CFR

[[Page 21919]]

817.125(c)(5). The proposed revisions satisfy the required amendment at 
30 CFR 948.16(gggg), which we are removing. Upon promulgation of a 
final rule by the State, WVDEP will be required to provide a copy to 
us. We will review it to ensure that it is substantively identical to 
the language being approved today. Any substantive differences in the 
language will be subject to further public review and approval by us. 
We are approving this revision with the understanding that the State 
will revise subsection 16.2.c.4. to replace the comma between ``lands'' 
and ``structures'' in the first sentence with ``or'' and to correct the 
spelling of the word ``material'' and insert the word ``damage'' after 
the words ``subsidence-related material'' in the third sentence as 
shown above.
    20. Timetable for Posting Bond for Subsidence-Related Material 
Damage and Damaged Water Supplies. 30 CFR 948.16(hhhh) provides that 
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 38-2-16.2.c.4., or to otherwise amend the West Virginia 
program, to be no less effective than the Federal regulations at 30 CFR 
817.121(c)(5), by requiring that the 90-day period before which 
additional bond must be posted begin to run from the date of occurrence 
of subsidence-related material damage.

State Response

    In a program amendment submittal dated May 2, 2001 (Administrative 
Record Number WV-1209), the State amended CSR 38-2-16.2.c.4. to read as 
follows:

    16.2.c.4. Bonding for Subsidence Damage: The director shall 
issue a notice to the permittee that subsidence related material 
damage has occurred to lands, structures, or water supply, and that 
the permittee has ninety (90) days from the date of notice to 
complete repairs or replacement. The director may extend the ninety 
(90) day abatement period but such extension shall not exceed one 
(1) year from the date of the notice. Provided, however, the 
permittee demonstrates in writing, and the director concurs that 
subsidence is not complete, that not all probable subsidence related 
material [damage] has occurred to lands or structures; or that not 
all reasonably anticipated changes have occurred affecting the water 
supply, and that it would be unreasonable to complete repairs or 
replacement within the ninety (90) day abatement period. If extended 
beyond ninety (90) days, as part of the remedial measures, the 
permittee shall post an escrow bond to cover the estimated costs of 
repairs to land or structures, or the estimated cost to replace 
water supply.

    On February 26, 2002, WVDEP proposed to further amend CSR 38-2-
16.2.c.4. by (1) replacing ``director'' with ``Secretary,'' (2) 
replacing ``that'' with ``when'' in the first sentence immediately 
after the word ``permittee,'' and (3) adding the words ``when 
contamination, diminution or interruption occurs to a domestic or 
residential'' before ``water supply'' in the first sentence. As 
amended, CSR 38-2-16.2.c.4. provides that the Secretary shall issue a 
notice to the permittee when subsidence-related material damage has 
occurred to lands [or] structures, or when contamination, diminution or 
interruption occurs to a domestic or residential water supply, and that 
the permittee has ninety (90) days from the date of notice to complete 
repairs or replacement.
    As discussed in the February 9, 1999, Federal Register, CSR 38-2-
16.2.c.4. originally differed from its Federal counterpart at 30 CFR 
817.121(c)(5) in that the State rule provided that the 90-day period 
during which no bond need be posted began with the issuance of a notice 
of violation to the permittee, rather than with the date of occurrence 
of damage (64 FR 6212-6213). As amended, the 90-day grace period in the 
State rule continues to commence upon issuance of a notice (although 
the notice is no longer a notice of violation), not the date of 
occurrence of the damage. For the reasons discussed below, we no longer 
believe that the State must amend its rule to provide that the grace 
period begins on the date of occurrence of the damage.
    The preamble to the Federal rule contains the following explanation 
of its basis and intent:

    The current rules at 30 CFR Part 800 already require the 
permittee to adjust the amount of the bond when the costs of future 
reclamation increase or when a reclamation obligation is 
established; for example, when material damage from subsidence 
occurs. The final rule is intended to avoid incomplete reclamation 
by clarifying the application to actual subsidence damage of the 
requirement in 30 CFR 800.15(a) that the regulatory authority 
specify a period of time or a set schedule to increase the amount of 
bond when the cost of reclamation changes. Thus, this provision 
assures that funds are available in a timely fashion to cover the 
cost of repairs in case of default by the permittee and to encourage 
prompt repair through the use of a grace period.
62 FR 16742, col. 1, March 31, 1995.

    While the Federal rule includes no provision for notice to the 
permittee, we find that the notice provision is both equitable and a 
practical means of implementing this requirement. The preamble quoted 
above indicates that we did not intend for the rule to apply before a 
reclamation obligation is established, which often requires some 
investigation. Furthermore, exact dates that damage occurred may be 
unknown or difficult to establish, particularly for damage to land and 
damage that occurs in a gradual fashion. The cause of a water supply 
loss can be extremely difficult to ascertain, especially when the loss 
occurs near a mine during adverse climatic conditions. Like the Federal 
rule, the State rule establishes a deadline for posting additional bond 
and a 90-day grace period to encourage prompt repair or replacement. 
The State rule requires issuance of notice to a permittee ``when'' 
damage occurs, which we interpret as obligating the State to (1) 
conduct prompt investigations upon receiving a damage complaint and (2) 
issue a notice as soon as the investigation is completed. The permittee 
would be required to post the additional bond upon notification by the 
State if the damage cannot be corrected within 90 days. In addition, 
West Virginia has an alternative bonding system approved under 30 CFR 
800.11(e), which means that any reclamation obligations not covered by 
a permittee's site-specific bond are the responsibility of the Special 
Reclamation Fund. Therefore, we find that the State rule is no less 
effective than the Federal rule, and that it satisfies the requirements 
of 30 CFR 948.16(hhhh), which we are removing.
    The State submitted the proposed rule changes to the Legislature in 
February 2002. However, because of a procedural error, the Legislature 
did not adopt the revised language. To correct this oversight, on April 
19, 2002, WVDEP filed these changes with the Secretary of State as 
emergency rules. According to State law, emergency rules can remain in 
effect for not more than 15 months. Final legislative rules are to be 
adopted by the State during a special legislative session or during the 
regular 2003 legislative session. We will review the emergency and 
final rules adopted by the State to ensure that the language of those 
rules is substantively identical to the language that we are approving 
today, with the exception of the correction of typographical and 
grammatical errors such as the two noted in Finding 19. Any substantive 
differences in the language are subject to further public review as a 
program amendment under 30 CFR 732.17.
    21. Recreational Facilities Use. 30 CFR 948.16(iiii) provides that 
West Virginia must submit either a proposed amendment or a description 
of an amendment to be proposed, together with a timetable for adoption, 
to:
    Amend the term ``recreational uses'' at W. Va. Code 22-3-13(c)(3) 
to mean

[[Page 21920]]

``recreational facilities use'' at SMCRA section 515(c)(3).

State Response

    In our January 15, 2002, meeting with the WVDEP, WVDEP asserted 
that when the West Virginia law and rules are read together, they are 
no less stringent than SMCRA at section 515(c)(3). In addition, by 
letter dated February 26, 2002, WVDEP stated that neither State code 
nor State rules define the term ``public facility including 
recreational land use.'' Furthermore, WVDEP provided the following 
policy statement to address this required amendment.

    It is the state position that the term ``public facility 
including recreational land use,'' implies structures or other 
significant developments that the public is able to use, or that 
confer some type of public benefit. Depending upon individual 
circumstances, this term may include schools, hospitals, airports, 
reservoirs, museums, and developed recreational sites such as picnic 
areas, campgrounds, ballfields, tennis courts, fishing ponds, 
equestrian and off-road vehicle trails, and amusement areas, 
together with any necessary supporting infrastructure such as 
parking lots and rest facilities. In general, those sites with a 
public or public facility postmining land use will provide the 
public with access as a matter of right on a non-profit basis. 
Facilities that meet a public need, like water supply reservoirs and 
publicly owned prisons, and facilities that provide a benefit, like 
flood control structures and institutions of higher education, also 
qualify, even if they are not readily accessible to all members of 
the public or completely non-profit.

    We find that the state policy quoted above renders the term 
``recreational uses'' at W. Va. Code 22-3-13(c)(3) will always include 
facilities. Therefore, that term is no less stringent than the term 
``recreational facilities use'' at SMCRA section 515(c)(3) and can be 
approved. For this reason, we find that the required amendment codified 
at 30 CFR 948.16(iiii) is satisfied and can be deleted.
    22. Forfeiture of Bonds. 30 CFR 948.16 (jjjj) provides that West 
Virginia must remove the words ``other responsible party'' at CSR 38-2-
12.4.e.

State Response

    In the program amendment submittal dated May 2, 2001, the State 
revised CSR 38-2-12.4.e. by deleting the words, ``or other responsible 
party.'' As amended, this provision is as follows:

    12.4.e. The operator or permittee shall be liable for all costs 
in excess of the amount forfeited. The Director may commence civil, 
criminal or other appropriate action to collect such costs.

    We find that the deletion of the words ``or other responsible 
party'' satisfies the required program amendment codified at 30 CFR 
948.16(jjjj) and can be approved. In addition, we are removing the 
required program amendment codified at 30 CFR 948.16(jjjj).
    23. Preblast Survey Requirements. 30 CFR 948.16(kkkk) provides that 
West Virginia must submit either a proposed amendment or a description 
of an amendment to be proposed together with a timetable for adoption, 
to remove the words ``upon request'' at W. VA. Code 22-3-13a(g), or 
otherwise amend its program to require that a copy of the pre-blast 
survey be provided to the owner and/or occupant even if the owner or 
occupant does not specifically request a copy.

State Response

    In the amendment submitted by letter dated November 28, 2001, 
concerning blasting, the State amended the W. Va. Code at 22-3-13a(g) 
by revising language concerning the availability of the preblast 
survey. As amended, the office of explosives and blasting shall provide 
a copy of the preblast survey to the owner or occupant. Prior to this 
amendment, the office was only required to notify the owner or occupant 
of the location and availability of a copy of the preblast survey.
    As amended, W. Va. Code 22-3-13a(g) is rendered consistent with 30 
CFR 817.62(d) which requires that a copy of the preblast survey be 
provided to the person who requested the survey. Therefore, the 
amendment can be approved. This amendment satisfies the required 
program amendment codified at 30 CFR 948.16(kkkk) which can, therefore, 
be removed.
    24. Preblast Survey Requirements. 30 CFR 948.16(llll) provides that 
West Virginia must submit either a proposed amendment or a description 
of an amendment to be proposed, together with a timetable for adoption, 
to remove the phrase ``or the surface impacts of the underground mining 
methods'' from 22-3-13a(j)(2), or otherwise amend its program to 
clarify that the surface blasting impacts of underground mining 
operations are subject to the requirements of 22-3-13a.

State Response

    In the amendment submitted by letter dated November 28, 2001, 
concerning blasting, the State amended W. Va. Code 22-3-13a(j) by 
revising language concerning applicability of section W. Va. Code 22-3-
13a. Among its changes to this section, the State deleted the phrase 
``or the surface impacts of the underground mining methods.'' As 
amended, section 22-3-13a(j) provides that the provisions of section 
22-3-13a do not apply to the extraction of minerals by underground 
mining methods.
    We find that this amendment has removed the offending language and 
satisfies the required program amendment codified at 30 CFR 
948.16(llll). Therefore, we are approving the amendment and deleting 
the required amendment at 30 CFR 948.16(llll).
    25. Blasting Requirements. 30 CFR 948.16(mmmm) provides that West 
Virginia must submit either a proposed amendment or a description of an 
amendment to be proposed, together with a timetable for adoption, to 
remove the phrase ``of overburden and coal'' from W.Va. Code 22-3-
30a(a), or to otherwise clarify that its general surface coal mining 
blasting laws and regulations apply to all blasting at surface coal 
mining and reclamation operations and surface blasting activities 
incident to underground coal mining, including, but not limited to, 
initial rounds of slopes and shafts.

State Response

    In the amendment submitted by letter dated November 28, 2001, 
concerning blasting, the State amended W. Va. Code 22-3-30a(a) by 
deleting the words ``of overburden and coal.'' As amended, W. Va. Code 
22-3-30a(a) provides that blasting shall be conducted in accordance 
with the rules and laws established to regulate blasting.
    We find that this revision has removed the offending language and 
satisfies the required program amendment codified at 30 CFR 
948.16(mmmm). Therefore, we are approving the amendment and deleting 
the required amendment at 30 CFR 948.16(mmmm).
    26. Removal of Abandoned Coal Refuse. 30 CFR 948.16(nnnn) provides 
that West Virginia must submit either a proposed amendment or a 
description of an amendment to be proposed, together with a timetable 
for adoption to either delete CSR 38-2-3.14 or revise CSR 38-2-3.14 to 
clearly specify that its provisions apply only to activities that do 
not qualify as surface coal mining operations as that term is defined 
in 30 CFR 700.5; i.e., that subsection 3.14 does not apply to either 
the removal of abandoned mine waste piles that, on average, meet the 
definition of coal or to the on-site reprocessing of coal mine waste 
piles. If the State chooses the second option it must submit a sampling 
protocol that will be used to determine whether the refuse piles meet 
the definition of coal. The protocol must be designed to ensure that no 
activities meeting the definition of surface coal

[[Page 21921]]

mining operations escape regulation under the West Virginia Surface 
Coal Mining and Reclamation Act.

State Response

    In its program amendment submittal dated May 2, 2001, the State 
amended CSR 38-2-3.14.a., regarding the removal of abandoned coal 
refuse piles, by changing the proviso concerning the minimum BTU value 
standard of refuse material to be classified as coal. As amended, 
subsection 3.14.a. now provides for:

    ``* * * the removal of abandoned coal processing waste piles; 
provided that, if the average quality of the refuse material meets 
the minimum BTU value standards to be classified as coal, as set 
forth in ASTM standard D 388-99, and if not AML eligible, a permit 
application which meets all applicable requirements of this rule 
shall be required.''

    Prior to this amendment, the words ``and if not AML eligible'' did 
not appear in subsection 3.14.a, and the subsection did not require the 
submittal of a permit application if the refuse material met the 
minimum BTU value to be classified as coal.
    As discussed in the May 5, 2000, Federal Register, we approved 
subsection 3.14 to the extent that it would apply to the removal of 
abandoned coal mine refuse pile where, on average, the material to be 
removed did not meet the definition of coal at 30 CFR 700.5 (65 FR 
26131). In addition we did not approve subsection 3.14 to the extent 
that it could be interpreted as applying to the on-site reprocessing of 
abandoned coal refuse piles. However, we noted that the removal of 
abandoned coal processing piles may qualify for the government-financed 
construction requirement under section 528(2) of SMCRA. CSR 38-2-3.31 
is the approved State regulation governing government-financed 
construction within the State. We amended the Federal definition of 
government-financed construction on February 12, 1999, to provide that 
government funding of less than 50 percent of a project's cost may 
qualify if the construction is undertaken as an approved abandoned mine 
reclamation project under Title IV of SMRCA (64 FR 7469-7483). However, 
because the West Virginia program lacks counterparts to the revised 
Federal definition of ``government-financed construction,'' we 
concluded that the exemption is not available to West Virginia projects 
with less than 50 percent government financing.
    In our January 15, 2002, meeting, we stated that because the State 
chose to clarify that subsection 3.14 does not apply to activities that 
qualify as surface coal mining operations as the term is defined at 30 
CFR 700.5, it needed to submit a sampling protocol to determine when a 
coal refuse pile would meet the definition of coal (Administrative 
Record Number WV-1271). The sampling protocol must be designed to 
ensure that no activities meeting the definition of surface coal mining 
operations escape regulation under the State counterpart to SMCRA and 
the Federal regulations. WVDEP also needed to select and submit the BTU 
standard that it would use to determine the difference between coal and 
non-coal. The ASTM criteria should be used to determine the BTU value 
of a sample. WVDEP agreed to provide us a sampling protocol and to set 
the BTU value for coal to ensure that these projects are not surface 
coal mining operations. The WVDEP acknowledged that since there is only 
bituminous coal in West Virginia, it would use a BTU value for 
bituminous coal from the ASTM standard.
    On February 26, 2002, WVDEP sent us another program submission 
(Administrative Record Number WV-1276). In that submission, WVDEP was 
noted that:

    WVDEP included the words ``and if not AML eligible'' to allow 
for the removal of abandoned coal refuse piles under AML enhancement 
requirements. The State has developed a sampling protocol and set 
the BTU value for coal (Attachment 8).

    Attachment 8 contains a draft policy entitled, ``Removal of 
Abandoned Coal Refuse Piles'' and provides the following:

    The Secretary may issue a reclamation contract, in accordance 
with 38-2-3.14, solely for the removal of existing abandoned coal 
processing waste piles; only if the average quality of the refuse 
material does not meet the minimum BTU value standards to be 
classified as coal and/or has a percent ash value of greater than 
50, as set forth in ASTM standard D 388-99.
    Refuse material that does not meet minimum BTU value standards 
to be classified as coal means; a pile of waste products of coal 
mining, physical coal cleaning, and coal preparation operations 
(e.g. culm, gob, etc.) containing coal, matrix material, clay, and 
other organic and inorganic material in which the material in the 
pile has a calculated average BTU value less than 10,500.
    Calculation of the average BTU value of the pile will be based 
on the average of five minimum samples taken in different and 
uniformly distributed locations. The number and spacing of sampling 
locations shall be taken into account variability of the material in 
short distances.

    On March 8, 2002, WVDEP submitted revisions to its program 
amendment submission of February 26, 2002 (Administrative Record Number 
WV-1280). In that amendment, the State submitted a revision to 
Attachment 8. The revised policy is identical to the one described 
above, except for the last paragraph regarding the calculation of 
average BTU values. The revised policy provides the following:

    Calculation of the average BTU value of the pile will be based 
on samples taken in a minimum of five different, uniformly 
distributed locations. The number and spacing of sampling locations 
should be take into account variability of the material in short 
distances.

    As amended, CSR 38-2-3.14.a. requires the submittal of a surface 
mining permit application for the removal of existing abandoned coal 
processing waste piles if the average quality of the refuse material 
meets the minimum BTU value standards to be classified as coal, as set 
forth in ASTM standard D 388-99 and if not AML eligible. In addition, 
the State has established a sampling protocol through its policy 
described above that will be used to determine whether abandoned coal 
refuse piles meet the definition of coal. As provided by 30 CFR 700.5, 
coal is defined to mean combustible carbonaceous rock, classified as 
anthracite, bituminous, subbituminous or lignite by ASTM Standard D 
388-77. The sampling protocol is designed to ensure that no activities 
meeting the definition of surface coal mining operations escape 
regulation under the approved State regulatory program. Furthermore, 
through the ASTM standard for coal at D 388-99, the State has 
established a minimum BTU value and/or ash content to be used in 
determining when coal refuse material does not constitute coal as that 
term is defined at 30 CFR 700.5.
    We find that, because revised CSR 38-2-3.14.a. and the proposed 
State policy clearly specify that their provisions apply only to 
activities that do not qualify as surface coal mining operations as 
that term is defined in 30 CFR 700.5, the required amendment at 30 CFR 
948.16(nnnn) has been satisfied, and it can be removed.
    At this time, we are only approving the phrase, ``and if not AML 
eligible'' at CSR 38-2-3.14.a. to the extent that it would exempt 
reclamation projects approved under West Virginia's abandoned mine land 
reclamation program that corresponds to Title IV of SMCRA. We are 
interpreting the WVDEP's February 26, 2002, policy statement as a 
commitment to restrict the scope of this phrase in this manner. 
Furthermore, as noted above, until the State revises its government-
financed construction requirements at CSR 38-2-

[[Page 21922]]

3.31, WVDEP cannot allow for the removal of abandoned coal refuse piles 
under an approved abandoned mined land project that is less than 50 
percent government financed.
    27. Coal Removal Incidental to Development. 30 CFR 948.16(oooo) 
provides that West Virginia must submit either a proposed amendment or 
a description of an amendment to be proposed, together with a timetable 
for adoption to remove CSR 38-2-23.

State response:

    WVDEP proposed to delete the incidental mining requirements at 
section 23 during the 2001 regular legislative session. However, the 
WVDEP Advisory Council recommended that the proposed deletion be 
removed from the final rule change.

    As discussed in the May 5, 2000, Federal Register, we disapproved 
proposed regulatory provisions at CSR 38-2-23 (65 FR 26133). As 
proposed, CSR 38-2-23 would allow special authorization for coal 
extraction as an incidental part of development of land for commercial, 
residential, or civic use. The new requirements would allow lesser 
standards for coal extraction conducted as an incidental part of land 
development. In disapproving these provisions, we noted that on 
February 9, 1999, we had found similar statutory provisions at W. Va. 
Code 22-3-28(a) through (c) to be less stringent than sections 528 and 
701(28) of SMCRA, and therefore, unapprovable (64 FR 6201-6204). In our 
disapproval, we stated that we are bound by the constraints of SMCRA 
which does not provide a blanket exemption from the definition of 
surface mining operation for privately financed construction as 
proposed by the State.
    In our January 15, 2002, meeting, and in its resubmission of 
February 26, 2002, WVDEP acknowledged that the provisions at CSR 38-2-
23 have been disapproved by OSM, and that West Virginia is not 
implementing them, as recently evidenced by the West Virginia Supreme 
Court decision in DK Excavating, Inc. v. Michael Miano, Director, 
WVDEP, 209 W.Va. 406, 549 S.E.2d 280 (2001) (Administrative Record 
Number WV-1292). (Administrative Record Nos. WV-1271 and WV-1276).
    As noted above in Finding 7, the West Virginia Supreme Court of 
Appeals in Canestraro v. Faerber ruled that, ``When a provision of the 
West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-
3-1 et seq., is inconsistent with Federal requirements in the Surface 
Mining Control and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the 
State Act must be read in a way consistent with the Federal Act.'' 
Canestraro, 374 S.E.2d at 321 (West Virginia Administrative Record No. 
WV-761). See also Schlutz, supra (State regulation enacted pursuant to 
the West Virginia Surface Coal Mining and Reclamation Act , W. Va. Code 
22A-3-1 to 40 (1993), [now W. Va. Code 22-3-1 to 32 (1994 and 
Supp.1995)], must be read in a manner consistent with Federal 
regulations enacted in accordance with the Surface Mining Control and 
Reclamation Act, 30 U.S.C. 1201 to 1328 (1986)).
    Also noted above in Finding 7, the West Virginia Supreme Court of 
Appeals also held in Schultz that no change in a State surface mining 
law or regulation can take effect for purposes of a State program until 
approved by OSM, and State surface mining reclamation regulations must 
be read in a manner consistent with Federal regulations enacted in 
accordance with SMCRA, Schultz, 475 S.E.2d 467. (Administrative Record 
Number WV-1038).
    Finally, and as noted above, in DK Excavating, supra, the West 
Virginia Supreme Court of Appeals reversed a lower State Circuit Court 
ruling which provided that coal extraction authorized as an incidental 
part of land development did not come within the State's definition of 
surface mining. The Supreme Court found that, ``Once a state plan is 
approved under the federal Surface Mining Control and Reclamation Act, 
any subsequent amendments to such plan do not become effective until 
approved by the federal Office of Surface Mining, and may not be 
approved by the Office of Surface Mining if inconsistent with the 
Surface Mining Control and Reclamation Act.'' Id. Also, ``Since the 
Office of Surface Mining has concluded that the amendment to our state 
plan, codified as West Virginia Code Sec. 22-3-3(u)(2)(ii) (1997) 
(Repl.Vol.1998), is inconsistent with the Surface Mining Control and 
Reclamation Act, that proposed amendment cannot be deemed as an 
amendment to the approved West Virginia surface mining plan.'' Id.
    We have previously ruled that West Virginia's incidental mining 
requirements cannot be approved, because they are inconsistent with 
sections 528 and 701(28) of SMCRA. In addition, we required that the 
West Virginia program be further amended by removing CSR 38-2-23. As 
discussed above, WVDEP is committed to not implementing the disproved 
provisions at CSR 38-2-23. This commitment complies with the mandate of 
the West Virginia Supreme Court of Appeals, which has held that ``when 
there is a conflict between the federal and state provisions, the less 
restrictive state provision must yield to the more stringent federal 
provision * * *'' Canestraro, supra. Furthermore, State rules must be 
read in a manner consistent with Federal regulations, Schultz, supra.
    Given the State's commitment not to implement the disapproved 
regulatory provisions at CSR 38-2-23, as demonstrated by its actions in 
DK Excavating, and because of the principles established in Canestraro, 
Schultz, and DK Excavating, we conclude that the required amendment at 
30 CFR 948.16(oooo) is no longer needed because the concerns contained 
in that required amendment have been satisfied. Therefore, we are 
removing it. However, to avoid further confusion or misinterpretation 
of its approved State regulatory program, we recommend that the State 
remove CSR 38-2-23.
    28. Bond Release and Premining Water Quality. 30 CFR 948.16(pppp) 
provides that West Virginia must submit either a proposed amendment or 
a description of an amendment to be proposed, together with a timetable 
for adoption, to remove CSR 38-2-24.4.

State Response

    In its program amendment submittal dated May 2, 2001, the State 
amended CSR 38-2-24.4., regarding requirements to release bonds, by 
deleting language concerning an exception to the requirements to 
release bonds, and by adding a new proviso concerning revegetation 
(Administrative Record Number WV-1209). As amended, subsection 24.4 
reads as follows:

    24.4. Requirements to Release Bonds. Bond release for remining 
operations shall be in accordance with all of the requirements set 
forth in subsection 12.2 of this rule; Provided that there is no 
evidence of a premature vegetation release.

    In the May 5, 2000, Federal Register, at Finding 9, we disapproved 
the predecessor to amended subsection 24.4 in part because the U.S. 
Environmental Protection Agency (EPA) declined to concur with the 
approval of CSR 38-2-24.4 due to its inconsistency with section 301(p) 
of the Clean Water Act (CWA) (65 FR 26133). Under section 301(p) of the 
CWA, the State may issue a National Pollutant Discharge Elimination 
System (NPDES) permit which modifies the pH, iron, and manganese 
standards for preexisting discharges from the remined area or affected 
by a qualifying remining operation. However, the permit may not allow 
the pH, iron, or manganese levels of any discharge to exceed the levels 
being discharged from the remined area

[[Page 21923]]

before the advent of the coal remining operation.
    Section 301(p), however, does not apply to all remining operations. 
Instead, section 301(p) defines ``coal remining operation'' to mean a 
coal mining operation which begins after February 4, 1987 (the date of 
enactment of section 301(p), at a site on which coal mining was 
conducted before August 3, 1977 (the effective date of SMCRA). EPA 
declined to concur with approval with the CSR 38-2-24.4 because that 
subsection would allow use of the section 301(p) standards for remining 
operations that began prior to February 4, 1987, and for sites on which 
coal mining was originally conducted on or after August 3, 1977.
    As discussed in our May 5, 2000, Federal Register decision, we 
noted that 30 CFR 816.42 and 817.42 require that discharges of water 
from areas disturbed by surface mining activities must comply with all 
applicable State and Federal water quality laws and regulations. 
Because CSR 38-2-24.4 was inconsistent with those requirements, we 
required its removal.
    The State has not deleted CSR 38-2-24.4 in its entirety, but it has 
deleted the offending language. In effect, CSR 38-2-24.4 now requires 
that bond release for remining operations must comply with the 
requirements of CSR 38-2-12.2 concerning replacement, release, and 
forfeiture of bonds. Subsection CSR 38-2-12.2.e. provides that no bond 
release or reduction will be granted if, at the time, water discharged 
from or affected by the operation requires chemical or passive 
treatment in order to comply with applicable effluent or water quality 
standards; or long-term water treatment is provided for under 
subsections 12.2.e.1. or 12.2.e.2. By requiring compliance with 
``applicable effluent limitations or water quality standards,'' CSR 38-
2-12.2.e requires compliance with the State's water quality 
requirements, including section 301(p) of the CWA. Furthermore, in our 
January 15, 2002, meeting with WVDEP, State officials clarified that 
the addition of the proviso concerning premature vegetation release is 
intended to ensure that there are no premature vegetation releases on 
remining operations (Administrative Record Number WV-1271).
    For the reasons discussed above, we find that the amended provision 
satisfies the required amendment at 30 CFR 948.16(pppp) and can be 
approved. Therefore, we are removing the required amendment.
    On January 23, 2002, EPA announced in the Federal Register that is 
was amending its current regulations at 40 CFR Part 434 to establish a 
coal remining subcategory that will address preexisting discharges at 
coal remining operations in the Appalachian and mid-continent coal 
regions of the eastern United States (67 FR 3370-3410). The new 
guidelines are to provide incentives for remining abandoned coal sites. 
According to EPA, under the new rules, remining operations will be 
required to implement strategies that control pollutant releases and 
ensure the pollutant discharges during remining activities are less 
than the pollutant levels released from the abandoned site prior to 
remining. Upon completion, the operators will reclaim the land to meet 
the same standards currently imposed on active mining areas. EPA 
believes that the new guidelines will provide operators with greater 
certainty about environmental requirements for remining operations. As 
mentioned in its letter of April 10, 2002 (Administrative Record Number 
WV-1294), EPA stated that it expects that WVDEP will be submitting 
regulations in the near future to comply with the new remining 
requirements at 40 CFR 434 Subpart G.

IV. Summary and Disposition of Comments

Public Comments

    A. We asked for public comments on the State's initial amendment in 
the Federal Register on January 3, 2001 (66 FR 335) (Administrative 
Record Number 
WV-1194). By letter dated February 28, 2001 (Administrative Record 
Number 
WV-1202) the West Virginia Highlands Conservancy (WVHC) responded with 
the following comments.
    1. 30 CFR 948.16(dd). WVHC stated that the State program is 
narrower and less effective than the Federal program. Whereas the 
Federal standards are specific and somewhat detailed, the State program 
is not. WVHC stated that the rules the State references are not even 
part of the approved program. The State effectively admits, WVHC 
asserted, that its program is deficient by relying on weak guidance 
documents to plug the holes in its approved program.
    Even if its Technical Handbook were as effective as the Federal 
requirements, WVHC stated, the State could not rely on the Technical 
Handbook as part of its approved program since it can change such 
guidance documents at any time without notice to OSM or the public. 
WVHC stated that all portions of the approved State program must be 
codified in statute or legislative rule. These productivity rules are 
central to proper reclamation, and to the State's economic future. 
There must be specific standards for operators to follow.
    In response, we disagree that guidance documents cannot be part of 
an approved State program. Any changes in laws, rules, policies, or 
guidance documents that make up an approved State program are subject 
to public review and comment and require OSM approval. As discussed in 
Finding 2, WVDEP chose to include its productivity success standards 
and the statistical sampling techniques for measuring the success of 
ground cover, stocking, and production in a policy that will be 
included in its Inspection and Enforcement Handbook. As required by CSR 
38-2-9.3.d. and 9.3.e., only after the applicable success standards 
have been met and verified by inspectors with the use of the approved 
statistical sampling methods can the State approve Phase II or III bond 
release. For the reasons set forth in Finding 2, we have determined 
that State's proposed policy entitled ``Productivity and Ground Cover 
Success Standards'' as set forth as Attachment 1 in its March 8, 2002, 
letter (Administrative Record Number WV-1280) is no less effective than 
the Federal requirements at 30 CFR 816.116 and 817.116. Therefore, the 
required amendment at 30 CFR 948.16(dd) has been satisfied and can be 
removed.
    2. 30 CFR 948.16(ee). WVHC stated that the State cites to less 
effective portions of its approved program and its guidance documents. 
The State cannot rely on mere guidance documents, WVHC asserted, as a 
way to circumvent the public notice and comment process established by 
Congress. If the State could rely on these guidance documents, there 
would be no stable State program, and operators and the public would be 
subject to the whims of WVDEP, WVHC asserted. In any event, the 
provisions that the State relies on are less effective than the Federal 
requirements.
    In response, again, we must disagree that guidance documents cannot 
be a part of an approved State program. These documents are subject to 
the same review and approval standards as laws or regulations. As 
provided by 30 CFR 948.16(ee), WVDEP was required to submit 
documentation that it had consulted with NRCS with respect to the 
nature and extent of its prime farmland reconnaissance inspections 
required by CSR 38-2-10.2 and obtained the concurrence of NRCS 
regarding its negative determination criteria at CSR 38-2-10.2. WVDEP 
submitted a letter to NRCS on February 25, 2002 (Administrative Record 
Number WV-1276, Attachment 1A),

[[Page 21924]]

outlining its requirements and procedures regarding prime farmlands and 
seeking specific concurrence with respect to reconnaissance inspections 
and its negative determination criteria. As discussed in Finding 3, on 
March 7, 2002, NRCS responded (Administrative Record Number WV-1290) 
and concurred with the State's prime farmland requirements. Therefore, 
the required amendment at 30 CFR 948.16(ee) has been satisfied and can 
be removed.
    3. 30 CFR 948.16(oo). WVHC stated that OSM must not remove this 
requirement since it has promulgated a Federal regulation requiring 
these standards to prevent failure, flooding and erosion. OSM's 
standard has been subject to a public notice and comment process, and 
is necessary to protect communities and the environment from storms, 
the WVHC asserted. Any lesser standard is not as effective as Federal 
law WVHC stated.
    In response, as discussed in Finding 4, WVDEP proposed 
modifications to its spillway design requirements at CSR 38-2-5.4.b.8 
on February 26, 2002 (Administrative Record Number 1276). Under the 
proposed State standard, the spillways of all sediment control 
structures, except for haulroads, must be designed to safely pass a 25-
year, 24-hour precipitation event. The proposed rule at CSR 38-2-
5.4.b.8. is no less effective than the Federal requirements at 30 CFR 
816/817.46(c)(2)(ii)(B). Therefore, the required amendment at 30 CFR 
948.16(oo) has been satisfied and can be removed.
    4. 30 CFR 948.16(tt). WVHC stated that the State submission 
improperly relies on guidance documents and is, in any event, less 
protective than the Federal program.
    In response, the Federal regulations at 30 CFR 732.17 concerning 
State program amendments states, at paragraph (a), that 30 CFR 732.17 
applies to ``any alteration of an approved State program.'' If a State 
regulatory authority submits a policy, technical guidance, or written 
statement as a means of rendering the State program no less effective 
than the Federal regulations, that policy, technical guidance, or 
written statement, if approved by OSM, becomes part of the approved 
State program. If, after approval by OSM, the policy, technical 
guidance, or written statement subsequently changed, it should be 
submitted to OSM as a State program amendment.
    As discussed above in Finding 5, we have determined that the State 
program has satisfied the part of the required amendment that requires 
all sediment control structures be certified as having been built in 
accordance with the detailed designs submitted and approved pursuant to 
CSR 38-2-3.6.h.4 for the following reasons. CSR 38-2-3.6.h.4. requires 
that detailed design plans for a structure be certified and approved 
before construction begins. CSR 38-2-5.4.b.1. provides that such 
structures be constructed in accordance with those plans. CSR 38-2-
5.4.d.1. requires that prior to any surface mining activities in the 
component drainage area, the controlling structures must be certified 
as to construction in accordance with the plans.
    We have also determined that the State program has satisfied the 
part of the required amendment that requires as-built plans be reviewed 
and approved by the regulatory authority as permit revisions for the 
following reasons. In its submittal, WVDEP stated that for structures 
with major design changes, a permit revision would be necessary. WVDEP 
further clarified that minor design changes are those within the 
construction tolerances described in CSR 38-2-3.35. Therefore, major 
design changes are those that exceed the construction tolerances. We 
have concluded that sediment control structures that are constructed 
with only minor design changes as described above are, in effect, built 
to the standards of the approved, certified designs in the preplan.
    5. 30 CFR 948.16(mmm). WVHC stated that the State program has 
completely confused the variance procedures of steep slope mining and 
mountaintop removal mining. There are many differences in the Federal 
program that must be part of the State program, WVHC stated. For 
example, WVHC stated, the steep slope variance is not available for 
agricultural variances. Accordingly, the State provisions are less 
effective than Federal requirements and must be rejected, WVHC stated.
    In response, this required program amendment was previously 
satisfied and removed. See the October 1, 1999, Federal Register (64 FR 
53200, 53201 and 53203).
    6. 30 CFR 948.16(nnn). The commenter stated that WVDEP admits that 
its program is deficient in regard to this amendment and OSM must 
continue to require the State to amend its program so that it is as 
effective as Federal law.
    In response, as discussed above in Finding 7, we are removing this 
required amendment because we have previously disapproved the provision 
that is the subject of the required amendment, and because of the 
principals established in Canestraro, we have concluded that (nnn) has 
been satisfied.
    7. 30 CFR 948.16(ooo). The commenter stated that the State program 
is less effective than the Federal program and the State must amend the 
program. The commenter further stated that the WVDEP admits that its 
citation is wrong and that it must be changed.
    In response, as discussed above in Finding 8, we are removing this 
required amendment because we have previously disapproved the provision 
that is the subject of the required amendment, and because of the 
principals established in Canestraro, we concluded that (ooo) has been 
satisfied.
    8. 30 CFR 948.16(sss). The commenter stated that the State's 
provision is clearly less effective than Federal law and does not 
require action by the operator to remedy the damage it may do to 
citizens' property value related to water supply. The commenter further 
stated that operators must be forced to pay for any damage they do to 
citizens' water use or potential water use that affects the value of 
the citizen's property.
    In response, as discussed above in Finding 10, we have previously 
ruled that West Virginia's water replacement waiver provisions could 
not be approved ``to the extent'' * * * [i]t would not be implemented 
in accordance with the definition of ``Replacement of water supply'' at 
30 CFR 701.5. Because of the State's commitment to comply with the more 
restrictive Federal waiver requirement, and because of the principles 
established in Canestraro and Schultz, we conclude that the required 
amendment at 30 CFR 948.16(sss) has been satisfied.
    9. 30 CFR 948.16(vvv)(1) through (4). The commenter stated that all 
three parts of this provision the State proposal is not as effective as 
Federal law and must be rejected, particularly as it relies on guidance 
documents rather than on properly adopted rules or statutes. These 
provisions, the commenter stated, are especially important given the 
potential for damage associated with refuse fills. All requirements 
must be scrupulously observed, the commenter stated.
    In response, as discussed above in Findings 11, 12, 13, and 14, we 
determined that the proposed or existing State requirements were no 
less effective than the Federal requirements with regard to restoring 
the land to AOC, certification of haulroads, applicability of 
subsection 5.4.c to slurry impoundments, and placement of coal refuse 
in the backfill, respectively. Therefore, the required amendments at

[[Page 21925]]

30 CFR 948.16(vvv) (1), (2), (3) and (4) have been satisfied and can be 
removed.
    10. 30 CFR 948.16(zzz). The commenter stated that none of the 
State's proposals are as effective as Federal law requires. For 
example, the commenter added, there is a clear difference between 
``adjacent areas'' and ``adjacent areas with an angle of draw of at 
least 30 degrees.'' The former protects a larger area, the commenter 
stated. Generally, the commenter asserted, the specific language of the 
Federal requirements is more protective of citizens in the area and the 
State should not be permitted to compromise citizens' rights by letting 
coal companies harm their homes and properties without compensating 
them.
    In response, and as stated above in Finding 15, the State has 
complied with this required amendment by revising its permit 
application to require that the type and location of the applicable 
structures, lands and water supplies be identified. In addition, in its 
May 2, 2001, submittal, the State amended CSR 38-2-3.12.a.1. concerning 
subsidence control plans by adding the requirement to include a 
narrative. Therefore, the required amendment at 30 CFR 948.16(zzz) has 
been satisfied.
    11. 30 CFR 948.16(aaaa). The commenter stated that the State 
provisions would not protect citizens' drinking water supplies because 
they are not as effective as Federal law. The commenter asserted that 
the WVDEP could not rely on lax and informal guidance documents as 
substitutes for the approved State program.
    In response, as we discussed above in Finding 16, the State has 
addressed this required amendment by adding language to CSR 38-2-
3.12.a.1. that makes it clear that the WVDEP can specify a area greater 
than that encompassed by a 30-degree angle of draw. In addition, the 
State has amended CSR 38-2-3.12.a.2. to require a survey of the quality 
and quantity of water supplies that could be contaminated, diminished 
or interrupted by subsidence ``within the permit area and adjacent 
areas.'' Therefore, the required amendment at 30 CFR 948.16(aaaa) has 
been satisfied.
    12. 30 CFR 948.16(bbbb). The commenter asserted that the State's 
provisions are less effective than the Federal program, and the State 
may not substitute guidance documents for the approved State program.
    In response, and as discussed above in Finding 17, the State 
amended CSR 38-2-3.12.a.2.B. to clarify that the applicant must pay for 
the surveys and any technical assessments or engineering evaluations. 
Therefore, the required amendment at 30 CFR 948.16(bbbb) has been 
satisfied.
    13. 30 CFR 948.16(iiii). The commenter stated that the current 
State language is not as effective as Federal requirements, and the 
State must be required to submit provisions that are as stringent as 
Federal law.
    In response, and as discussed above at Finding 21, WVDEP asserted 
that when the State law and rules are read in concert, there is no 
confusion that the State provision is no less effective than SMCRA 
section 515(c)(3). In addition, the WVDEP submitted its policy 
concerning how the provision will be interpreted by WVDEP. We found 
that policy renders the West Virginia program no less effective than 
the term ``recreational facilities use'' at SMCRA section 515(c)(3) and 
we approved that policy as part of the West Virginia program.
    14. 30 CFR 948.16(kkkk). The commenter stated that the current 
State language is not as effective as Federal requirements, and the 
State must be required to submit provisions that are as stringent as 
Federal law.
    In response, and as we discuss above at Finding 23, the State has 
satisfied the required amendment at 30 CFR 948.16(kkkk) by amending the 
W. Va. Code at 22-3-13a(g).
    15. 30 CFR 948.16(llll). The commenter stated that the current 
State language is not as effective as Federal requirements, and the 
State must be required to submit provisions that are as stringent as 
Federal law.
    In response, and as we discuss above at Finding 24, the State has 
satisfied the required amendment at 30 CFR 948.16(llll) by amending the 
W. Va. Code at 22-3-13a(j).
    16. 30 CFR 948.16(mmmm). The commenter stated that the current 
State language is not as effective as Federal requirements, and the 
State must be required to submit provisions that are as stringent as 
Federal law.
    In response, and as we discuss above at Finding 25, the State has 
satisfied the required amendment at 30 CFR 948.16(mmmm) by amending the 
W. Va. Code at 22-3-30a(a).
    B. We also published a notice in the Federal Register on March 25, 
2002 (67 FR 13577), and requested public comments on the State's 
February 26, 2002, and March 8, 2002, amendments (Administrative Record 
Number WV-1285). By letter dated April 9, 2002 (Administrative Record 
Number WV-1295), the West Virginia Coal Association (WVCA) responded 
with the following comments.
    17. According to the WVCA, for years, OSM has saddled West 
Virginia's mining regulatory program with numerous required amendments. 
Some of these amendments were truly warranted in order for the State 
program to satisfy the mandates of the Federal statute and regulations. 
In other cases, WVCA asserted, the demanded changes have been 
superficial, lacking any substantive basis and generally unnecessary. 
WVCA stated that for WVDEP and the regulated mining community, OSM's 
practice of continually generating required amendments has placed the 
State's approved mining program in turmoil. The most offending 
manifestation of OSM's actions, WVCA asserted, is the legal action 
filed by the WVHC and currently pending in Federal District Court (WVHC 
vs. Norton, Civil Action 2:00-CV-1062). WVDEP proposed program 
amendments have been allowed to accrue for years, WVCA stated, giving 
rise to the Conservancy's legal action which seeks to substitute 
judicial mandate for agency discretion, a result never intended by 
OSM's guiding statute, SMCRA. WVCA stated that, in general, and with 
two exceptions, it supports the proposed amendments and responses 
offered by WVDEP to satisfy several outstanding required program 
amendments. WVCA urged OSM to approve the amendments as offered by 
WVDEP or accept the responses offered by the State agency in instances 
where it believes no program amendment is necessary.
    In response, we disagree that the required amendments that have 
been placed on the West Virginia program are superficial, lack 
substance and are generally unnecessary. Changes in both State and 
Federal surface mining laws and regulations over the years have 
resulted in the imposition of the required amendments that are being 
considered today. Resolution of these issues will ensure that the 
State's program is consistent with Federal law and regulations. 
Compliance with these minimum Federal standards ensures that the 
regulation of the mining community is fair and consistent from state to 
state and affords West Virginians the same level of environmental 
protection of other States. It is unfortunate that some of these 
required amendments have gone unresolved for many years. We are hopeful 
that in the future issues of this nature will be resolved in a more 
timely manner.
    18(a). WVCA has four main concerns regarding WVDEP's proposed 
amendment to CSR 38-2-5.4.b.8 offered to satisfy required program 
amendment (oo). First, WVCA would like a clarification that 30 CFR 
948.16(oo)

[[Page 21926]]

deals with a standard to ensure that spillways associated with sediment 
control structures can ``safely pass,'' meaning, ``withstand,'' 25-year 
24-hour precipitation events. WVCA stated that 30 CFR 948.16(oo) and 
the Federal and State counterparts, 30 CFR 816.49(sic)(a)(9)(ii)(C) and 
W.Va. CSR 38-2-5.4.b.8, do not contain storage capacity requirements 
for sediment control structures.
    In response, we agree that the required amendment at 30 948.16(oo) 
relates to the design and construction of spillways for sediment 
control structures and does not concern the storage capacity of 
sedimentation ponds. The State's storage capacity requirements for 
sedimentation ponds are contained in CSR 38-2-5.4.b.4. On May 23, 1990, 
these requirements were determined to be no less effective than the 
Federal requirements at 30 CFR 816/817.46(c)(1)(iii)(C) (55 FR 21304, 
21319).
    18(b). Second, WVCA maintains that CSR 38-2-5.4.b.8 not only 
corresponds to the Federal requirement at 30 CFR 816.49(a)(9)(ii)(C), 
but that CSR 38-2-5.4.b.8's 25-year 24-hour precipitation event 
standard is more stringent than 30 CFR 816.49(a)(9)(ii)(C)'s 25-year 6-
hour precipitation event standard.
    In response, as discussed in the May 23, 1990, Federal Register, we 
found that, under most conditions in West Virginia, the peak runoff 
from a 24-hour precipitation event would exceed that from a 6-hour 
event or that the difference was insignificant in terms of design 
considerations. Therefore, we found that the State's use of the 24-hour 
storm duration for spillway design and construction was no less 
effective than the Federal 6-hour standard (55 FR 21304, 21319).
    18(c). Third, WVCA stated that it believes that CSR 38-2-5.4.b.8 
should be applied prospectively only, as it exceeds the requirements of 
the corresponding Federal law and there is no reason to believe that 
spillways designed to pass 10-year 24-hour storm events at excavated 
ponds need to be rebuilt.
    In response, we disagree that these requirements should only be 
applied prospectively and that the proposed State standard exceeds the 
Federal requirements. As discussed above in Finding 4, a joint review 
of this issue disclosed that the spillways for many of these sediment 
control structures are currently larger than the required 25-year, 24-
hour standard due to the size of the equipment used to construct them. 
In addition, retroactive application of the 25-year, 24-hour standard 
will only pertain to excavated sediment control structures that are at 
ground level, because existing State requirements already provide that 
other sediment control structures must have spillways designed and 
constructed to safely pass a 25 year, 24-hour event. Furthermore, the 
applicability requirements at CSR 38-2-1.2 provide for the application 
of these requirements to all existing and new surface mining 
operations. We anticipate that upon mid-term review, permit revision or 
permit renewal, the State will require spillways for excavated sediment 
control structures that do not safely pass a 25-year, 24-hour event to 
be redesigned and constructed to comply with these requirements.
    18(d). Finally, WVCA stated that, as explained in subsequent 
paragraphs, it would be remiss not to identify the inconsistency of OSM 
regarding this required program amendment.
    In response, as discussed above in Finding 4, we do not believe 
that we have been inconsistent in our treatment of this required 
amendment.
    19. According to the WVCA, in the past and in news accounts 
following flooding, which occurred in July 2001, standards regarding 
the storage capacity of sediment control structures have been confused 
with requirements governing the integrity of spillways associated with 
sediment control structures. Therefore, WVCA asserted, OSM should 
clarify the distinction between requirements to ``safely pass'' a given 
precipitation event and requirements to ``contain or treat'' a given 
precipitation event (``storage capacity'' requirements). WVCA stated 
that 30 CFR 948.16(oo), titled ``Spillway design,'' requires CSR 38-2-
5.4.b.8 to be amended to require that ``excavated sediment control 
structures which are at ground level and have an open exit channel 
constructed of non-erodible material be designed ``to pass'' the peak 
discharge of a 25-year 24-hour precipitation event.'' 30 CFR 
948.16(oo)(emphasis added by WVCA). According to the WVCA, while CSR 
38-2-5.4.b.4 and the corresponding Federal regulation at 30 CFR 
816.46(c)(1)(iii)(C) focus on the requirements for ``containing and 
treating'' precipitation events, the requirement in 30 CFR 948.16(oo) 
focuses on the storm event which a spillway must be designed to 
``safely pass.'' 30 CFR 816.49(a)(9) is the Federal regulation that 
corresponds to CSR 38-2-5.4.b.8. 30 CFR 816.49(a)(9) states, ``[a]n 
impoundment shall include either a combination of principal and 
emergency spillways or a single spillway * * * designed and constructed 
to ``safely pass'' the applicable design precipitation event specified 
in paragraph (a)(9)(ii) of this section. . . .'' 30 CFR 
816.49(a)(9)(emphasis added by WVCA). 30 CFR 816.46(a)(9)(ii)(C) 
prescribes the design event that ``spillways'' must be capable of 
withstanding, WVCA stated, and provides that: ``[f]or an impoundment 
not included in paragraph (a)(9)(ii)(A) and (B) of this section, a 25-
year 6-hour or greater event as specified by the regulatory 
authority.'' 30 CFR 816.46(a)(9)(ii)(C). The WVCA concluded that the 
requirement to ``safely pass'' such a storm event is distinct from the 
requirement to ``contain or treat'' such a storm event.
    In response, we agree that the required amendment at 30 CFR 
948.16(oo) pertains only to the design and construction of spillways 
for excavated sediment control structures. As discussed above in our 
response to Comment 18(a), we clarified that this required amendment 
does not relate to the storage capacity of sediment control structures. 
It should be pointed out that the Federal requirements have been 
revised and reorganized since this required amendment was imposed on 
the State's program. This may be partly to blame for the confusion. As 
discussed above in Finding 4, the State's proposed 25-year, 24-hour 
spillway design and construction standard is no less effective than the 
Federal requirements at 30 CFR 816/817.46(c)(2) and 30 CFR 816/
817.49(a)(9)(ii)(C), not 30 CFR 816.46(a)(9)(ii)(C), as mentioned 
above.
    20. According to the WVCA, the provisions of section 505(b) of 
SMCRA expressly provide that State law that imposes requirements not 
found in SMCRA or ones more stringent than required by the Federal 
program are not legally defective by reason of that inconsistency. WVCA 
asserted that the West Virginia requirement to withstand a 25-year 24-
hour storm is more stringent than the federal standard in 30 CFR 
816.46(a)(9)(ii)(C) requiring safe passage of a 25-year 6-hour event, 
because of the longer duration storm event utilized under the West 
Virginia standard. In this regard, WVCA concluded, West Virginia has 
not complied with its own statutory prohibition on adopting regulations 
that are more stringent than corresponding Federal regulations without 
first making specific findings (See W.Va. Code Secs. 22-1-3(c) & -3a).
    In response, a 25-year, 24-hour event is longer in duration than a 
25-year, 6-hour event. Typically, a 24-hour storm yields more total 
water volume, but a lower peak flow (depth of water in a channel) than 
a 6-hour storm. However, as discussed above in response to Comment 
18(b), we found that, in West

[[Page 21927]]

Virginia, this does not hold true. Rather, on May 23, 1990 (55 FR 
21304, 21318), we found the State's proposed 25-year, 24-hour standard 
to be no less effective than the Federal 25-year, 6-hour standard. That 
is, we found that in West Virginia, under most conditions, the peak 
runoff from a 24-hour storm would exceed that from a 6-hour storm or 
that the difference was insignificant in terms of design 
considerations. While we agree that the State standard is no less 
effective than the Federal standard, we do not consider it to be more 
stringent than the Federal requirements. Furthermore, our determination 
was made four years prior to the State adopting its more stringent 
statutory provisions in 1994. Therefore, even if the 24-hour standard 
is considered to be more stringent than the Federal requirements, the 
State has not violated its own statutory prohibition on adopting 
regulations that are more stringent than corresponding Federal 
regulations.
    21. According to the WVCA, because the proposed amendment to CSR 
38-2-5.4.b.8 exceeds the requirements of the Federal program, it should 
be applied on a prospective basis only. Further, WVCA stated, prior 
scrutiny by OSM of the West Virginia program and experience have 
validated that use of a 10-year 24-hour storm event standard is safe. 
WVCA stated that in August 1994, OSM Charleston Field Office Director 
James Blankenship, in a letter to WV DEP Director David Callaghan 
regarding the West Virginia regulatory program acknowledged the 
sufficiency of the 10-year 24-hour storm event standard when applied to 
excavated sediment control structures: ``These types of structures by 
their very nature are not subject to catastrophic failure or excessive 
erosion. The designed storm criteria are established to address these 
potentials and are of no significance for these structures' (see W.Va. 
Administrative Record 934). WVCA stated that historic events have 
further confirmed the adequacy of the previous standard utilized by 
WVDEP. The WVCA concluded that following a record storm event in July 
2001, the West Virginia Surface Mine Board determined that structures 
constructed according to the 10-year 24-hour storm event standard were 
subjected to 100-year 24-hour storm event but did not breach or fail, 
just as OSM originally opined in 1994.
    In response, we disagree that the proposed revision to CSR 38-2-
5.4.b.8 exceeds the Federal requirements, and should only be applied 
prospectively. As discussed above in Finding 4, we found the State's 
10-year, 24-hour standard for the design and construction of spillways 
to be less effective than the Federal 25-year, 6-hour standard in 
October 1991. We has never approved the State's 10-year, 24-hour 
spillway design standard for excavated sediment control structures. 
Neither is the proposed 25-year, 24-hour State standard more stringent 
than the Federal 25-year, 6-hour spillway standard. The proposed 
revision will simply make the State's spillway design and construction 
requirements for excavated sediment control structures no less 
effective than the Federal requirements. Retroactive application of 
these requirements (ie. application to existing ground level, excavated 
sediment control structures on sites that have not received final bond 
release) is required by the State's approved program. As provided by 
CSR 38-2-1.2.a., these rules apply to all existing surface mining 
operations in the State. Only CSR 38-2-3.8.c. provides an exemption for 
existing structures. CSR 38-2-2.48 defines existing structure to mean a 
structure or facility used with or to facilitate surface coal mining 
and reclamation operations for which construction began prior to 
January 18, 1981, the effective date of the State's approved program. 
Even then, such structures are subject to revision or reconstruction 
when it is necessary to comply with a performance standard.
    Furthermore, the comments made above by WVCA regarding the safety 
of these types of structures are incorrectly attributed to OSM. The 
language that WVCA quoted is the State's response to our comment that 
the proposed State standard was still less effective than the Federal 
requirements. During a meeting with the State in 1994, it was alleged 
that OSM had approved the 10-year, 24-hour standard in other States. In 
response to this allegation, we agreed to determine if a similar 
exemption existed in the Illinois program. As addressed above in 
Finding 4, there is no such standard in the Illinois program. We 
understand that the West Virginia Surface Mine Board recently dismissed 
a case based on the State's 10-year, 24-hour spillway standard. We 
believe that, at the time, the Surface Mine Board was not aware that 
OSM had earlier found the State's standard to be less effective than 
the Federal requirements. Furthermore, such standard cannot be 
considered to be part of the approved State program. As discussed 
above, the West Virginia Supreme Court of Appeals has held that, when 
an amendment to the State program is found by OSM to be inconsistent 
with the Federal requirements, the proposed amendment cannot be deemed 
an amendment to the approved State program, DK Excavating, 549 S.E.2d 
280, (Administrative Record Number WV-1292).
    22. According to the WVCA, OSM previously pledged to remove the 
required program amendment at 30 CFR 948.16(oo). WVCA stated that in a 
1994 communication from OSM to WVDEP, Charleston Field Office Director 
James Blankenship pledged to resolve 30 CFR 948.16 (oo) by approving 
CSR 38-2-5.4.b.8 ``as an exemption similar to the one approved in the 
Illinois state program'' (W.Va Administrative Record 934). 
Additionally, WVCA stated, in two official exchanges subsequent to 
Blankenship's 1994, letter WVDEP again argues that CSR 38-2-5.4.b.8 is 
as stringent as the federal program and that OSM's original ``promise'' 
regarding the outstanding program amendment at 30 CFR 948.16(oo) should 
be honored. In November 2000, WVDEP responded to required amendment 
(oo) by citing the language from the 1994 letter (WV Administrative 
Record 1189). Despite WVDEP's response to OSM, in January 2001 the 
required amendment to CSR 38-2-5.4.b.8 is again restated (66 Fed. Reg. 
335) WVCA stated. In response, WVDEP again pointed to the 1994 pledge 
by OSM to approve the existing regulation as a program exemption. WVCA 
stated that to its knowledge, OSM has never clarified why the intent of 
the 1994 letter regarding amendment (oo) was never implemented. 
Unfortunately, WVCA stated, the disparity of OSM regarding this 
particular amendment is illustrative of how the Federal agency 
communicates with WVDEP regarding the consistency of the State program 
with its Federal counterpart. Far too often, WVCA asserted, OSM demands 
changes of WVDEP for insignificant or nonexistent reasons. WVCA stated 
that, as illustrated by the Federal agency's conduct regarding 30 CFR 
948.16(oo), OSM often fails to follow its own directives regarding 
State programs. The result of this confusion between the Federal and 
State programs, WVCA asserted, is demonstrated by the current 
litigation pending against OSM in Federal District Court (WVHC v. 
Norton) and the ongoing section 733 actions undertaken by OSM against 
WVDEP. WVCA urged that, in the spirit of ending this confusion, OSM 
approve the amendment to CSR 38-2-5.4.b.8 as offered by WVDEP.
    In response, as discussed above in regard to Comment 21, we agreed 
to consider approving the State's proposal if such an exemption had 
been previously approved in the Illinois program. As discussed above in 
Finding

[[Page 21928]]

4, no such exemption exists in the Illinois program. If we had 
determined that this provision was as effective as the Federal 
requirements, it would have removed the required amendment. Instead, 
the required amendment has remained on the State program since 1991, 
because the State's spillway standard for excavated sediment control 
structures was determined to be less effective than the Federal 
standard. This information was conveyed to the State both informally 
and formally. In addition, we regularly provides State officials and 
the public an update on the status of the State's outstanding required 
amendments and 30 CFR Part 732 issues in the West Virginia Annual 
Report. We stand by our earlier decision. However, as discussed above 
in Finding 4, because we now find the State's proposed spillway 
revision of February 26, 2002 (Attachment 2), to be no less effective 
than the Federal requirements, we are removing the required amendment 
at 30 CFR 948.16(oo).
    23. WVCA stated that it has the following observation regarding the 
required amendment specified at 30 CFR 948.16(oooo). WVCA stated that 
by demanding that WVDEP remove CSR 38-2-23, OSM appears committed to 
wasting coal resources that could be extracted through incidental, non-
mining related construction or development. WVCA stated that such a 
desire by OSM is counter to the purpose and spirit of SMCRA, and simply 
does not agree with conventional common sense. WVCA urged OSM, as WVDEP 
has for several years, to remove the required program amendment.
    In response, as discussed above in Finding 28, we disapproved the 
State's incidental mining requirements at CSR 38-2-23 on May 5, 2000 
(65 FR 26130, 26133). In addition, on February 9, 1999 (64 FR 6201, 
6204), we found similar statutory provisions at W.Va. Code 22-3-28(a) 
through (c) to be less stringent than sections 528 and 701(28) of 
SMCRA, and therefore unapprovable. In our disapproval, we noted that we 
are bound by the constraints of SMCRA which does not provide a blanket 
exemption from the definition of surface mining operations for 
privately financed construction as proposed by the State. A similar 
two-acre exemption had existed under section 528(2) of SMCRA, but was 
repealed by Public Law 100-34 on May 7, 1987. While incidental mining 
activities are not exempt from the requirements of SMCRA, we have 
encouraged WVDEP to work with applicants in providing more timely 
review and approval of such applications to avoid the wasting of coal 
resources. Furthermore, given the State's commitment not to implement 
the disapproved regulatory provisions at CSR 38-2-23, as demonstrated 
by its actions in DK Excavating, and because of the principles 
established in Canestraro, Schultz, and DK Excavating, we are removing 
the required amendment at 30 CFR 948.16(oooo) because the concerns 
contained therein have been satisfied and it is no longer needed.
    C. We asked for public comments on the amendment package submitted 
on May 2, 2001, concerning House Bill 2663 in the Federal Register on 
May 24, 2001 (Administrative Record Number WV-1213). We did not receive 
any specific public comments on the State's responses to the required 
amendments addressed in this document. However, some of the public 
comments discussed above were addressed by amendments included in this 
submission.
    D. We asked for public comments on the amendment package submitted 
on November 28, 2001, concerning blasting in the Federal Register on 
January 31, 2002 (Administrative Record Number WV-1267), but we did not 
receive any comments from the public.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendments from various Federal agencies with 
an actual or potential interest in the West Virginia program by letters 
dated January 26, and May 30, 2001, and February 1, and March 11, 2002 
(Administrative Record Numbers WV-1199, WV-1215, WV-1268, and WV-1284, 
respectively).
    1. By letter dated February 14, 2001 (Administrative Record Number 
1204), the United States Department of Labor, Mine Safety and Health 
Administration (MSHA) responded to our request for comments. MSHA 
requested that we contact MSHA in the event that any long-standing 
regulation or amendment thereto should change or alter the areas of a 
surface or underground coal mine or a preparation facility, including 
refuse piles, impoundments, sealed mines, or highwalls at surface 
mines. MSHA further stated that if such regulations or amendments do 
cause such changes or alterations, MSHA will assign a technical 
inspector to discuss the mine operator's approved plans concerning the 
affected areas for the amendment at issue.
    In response, changes in State laws and regulations are usually 
incorporated into existing permits at the time of permit renewal, 
permit revision, or mid-term review. MSHA is provided copies of any 
request for renewal or significant revisions to permit applications. In 
addition, notification of any changes in State laws or regulations that 
make up an approved State regulatory program are provided to MSHA for 
review and comment prior to our approval.
    2. The United States Department of Agriculture, Natural Resources 
Conservation Service (NRCS) responded on February 9, 2001 
(Administrative Record Number WV-1203), and provided the following 
comments. At required amendment 30 CFR 948.16(dd), NRCS suggested 
language to be used in place of the WVDEP's response to the required 
amendment codified at 30 CFR 948.16(dd). NRCS suggested the following 
language: ``The productivity for grazing land, hayland, and cropland 
can be based upon the productivity determinations for similar soil 
classifications, or similar map units, as published in the productivity 
tables in NRCS soil surveys, or in the NRCS Grassland Suitability 
Groups.''
    In response, we note that after NRCS commented, the State amended 
its response. As discussed in Finding 2, WVDEP proposed a policy to 
satisfy the required amendment at 30 CFR 948.16(dd) regarding 
productivity and ground cover. In effect, the policy will do what the 
NRCS has suggested. In addition, operators will be expected to work 
with the NRCS, West Virginia Agricultural Statistics Service/USDA and 
WVDEP in developing productivity standards for proposed mining 
operations that have hayland, pastureland, or cropland as the 
postmining land use.
    3. NRCS also commented on the required amendment codified at 30 CFR 
948.16(ee). NRCS stated that when evaluating important farmland, NRCS 
uses form AD-1006 to determine a Relative Value of Farmland to be 
Converted. This form gives weight to Prime and Unique Farmland, and 
also gives weight to statewide Important Farmland and Locally Important 
Farmland. This is the national system of Land Evaluation and Site 
Assessment, or LESA. Many map units of Statewide importance exceed 10 
percent slope, and impact our evaluation. Lists of Prime Farmland, 
Unique Farmland, Statewide Important Farmland, and Locally Important 
Farmland are available for each county.
    In response, we note that after the NRCS commented, WVDEP revised 
its response to the required amendment at 30 CFR 948.16(ee). As 
discussed in Finding 3, WVDEP submitted its prime farmland requirements 
and procedures to the NRCS for review. The NRCS commented on the nature 
and extent of WVDEP's reconnaissance inspections

[[Page 21929]]

and concurred with the State's negative determination criteria for 
prime farmland. The documents described above are taken into 
consideration when evaluating areas for prime farmland.
    4. The U. S. National Park Service (NPS) responded and provided two 
suggestions (Administrative Record Number WV-1289). Concerning the 
State's response to the required amendment at 30 CFR 948.16(iiii), NPS 
stated that recreational uses such as off-road vehicle use requires 
only a minimal amount of reclamation, and operators will naturally 
gravitate towards reclaiming areas to this level if allowed to. The 
State's reclamation standards in effect would be lowered through what 
appears to be an unintended interpretation of what constitutes 
``recreational facilities use'' under SMCRA section 515(c)(3).
    In response, SMCRA at section 515(c)(3) provides the minimum 
standards for approval of mountaintop removal mining operations. 
Section 515(c)(3)(A) provides that after consultation with the 
appropriate land use planning agencies, if any, the proposed postmining 
land use must be deemed to constitute an equal or better economic or 
public use of the affected land, as compared with premining use. That 
is, while the applicant may propose a certain postmining land use for 
mountaintop removal mining operations, it is the decision of the 
regulatory authority whether to approve a proposed postmining land use. 
The decision, in accordance with section 515(c)(3)(A), must focus on 
the value of the proposed use as compared to the premining use. In 
addition, SMCRA section 515(c)(3)(B) provides that the applicant must 
present specific plans for the proposed use and appropriate assurances 
that such use: will be compatible with adjacent land uses; obtainable 
according to data regarding expected need and market; assured of 
investment in necessary public facilities; supported by commitments 
from public agencies where appropriate; practicable with respect to 
private financial capability for completion of the proposed use; and 
planned pursuant to a schedule attached to the reclamation plan so as 
to integrate the mining operation and reclamation with the postmining 
land use. Also, Section 515(c)(3)(C) also provides that the proposed 
use must be consistent with existing State and local land use plans and 
programs. The State counterparts to these requirements are at W. Va. 
Code 22-3-13(c)(3).
    It is our belief that compliance with the SMCRA provisions 
discussed above leads to the following conclusions: (1) A postmining 
land use cannot be approved where the use could be achieved without 
waiving the AOC requirement, except where it is demonstrated that a 
significant public or economic benefit will be realized therefrom; and, 
(2) where an exception or variance from the approximate original 
requirements is sought, the postmining land use must always offer a net 
benefit to the public or the economy. As discussed above in Finding 21, 
we find that the policy statement provided by WVDEP renders the term 
``recreational uses'' at W. Va. Code 22-3-13(c)(3) no less stringent 
than the term ``recreational facilities use'' at section 515(c)(3) of 
SMCRA and can be approved.
    5. NPS also stated that language identified in the amendments as 30 
CFR 948.16(dd) allows for the continuation of the practice of returning 
previously mined lands to grazing land, pasture land or cropland. NPS 
stated that while grazing is an acceptable reclamation goal under some 
circumstances, it should be a limited option, especially in the highly 
productive hardwood forest region that surrounds the New River Gorge 
National River and Gauley River National Recreation Area. The 
circumstances under which grazing land, pasture land or cropland would 
be an acceptable reclamation goal, NPS stated, need to be specified and 
meet the higher and better use test.
    In response, we note that SMCRA and the Federal regulations 
currently allow such considerations. Under section 515(c)(3) of SMCRA, 
industrial, commercial, agricultural, residential, or public facility 
(including recreational facilities) uses may be approved as postmining 
land uses for mountaintop removal mining operations. Certain managed 
grassland uses, such as grazing land, pasture land, or hayland, are 
included within the Federal ``agricultural'' land use category under 
section 515(c)(3). The State's mountaintop-removal provisions at W.Va. 
Code 22-3-13(c)(3) contain similar requirements. However, as discussed 
in the August 16, 2000, Federal Register, we approved a new provision 
at CSR 38-2-7.3.c (65 FR 50409, 50414). Subsection 7.3.c. provides that 
a change in postmining land uses to grassland uses, such as rangeland 
and/or hayland or pasture, is prohibited on mountaintop removal mining 
operations that receive an approximate original contour variance 
described in W.Va. Code 22-3-13(c). Therefore, as recommended by the 
NPS, the grassland uses described above, except for cropland, are no 
longer approvable postmining land uses for mountaintop removal mining 
operations in West Virginia. Few, if any, mountaintop removal mining 
operations in the State have cropland as an approvable postmining land 
use. In addition, the change from one land use category to another 
category would have to satisfy the alternative postmining land use 
requirements of CSR 38-2-7.3.
    6. By letter dated March 29, 2002 (Administrative Record Number WV-
1291), the U.S. Army Corps of Engineers (COE) responded and suggested 
the inclusion of a statement indicating that separate authorization 
from the COE be required for all work involving any discharge of 
dredged or fill material into waters of the U.S. COE made this 
recommendation it said in order to avoid any inadvertent implication 
that the requirements of Section 404 of the Clean Water Act are somehow 
superseded by the amendments.
    In response, as provided by section 702(a)(3) of SMCRA, we 
acknowledge that nothing in the SMCRA requirements may be construed as 
superseding, amending, modifying or repealing the Federal Water 
Pollution Control Act [amended as The Clean Water Act (CWA)] or the 
regulations promulgated thereunder. State programs do not have to 
contain a statement regarding the discharge of dredge or fill material 
in waters of the United States. However, many States make it a 
condition of permit approval requiring that the surface mining 
reclamation operation cannot commence without the issuance of a CWA 
Section 404 Permit by the COE.
    7. By letter dated March 7, 2002 (Administrative Record Number WV-
1290), NRCS stated that its definitions are not consistent with several 
parts of the State's rules at CSR 38-2-10 regarding negative 
determination criteria. Because cropping history is not considered in 
the NRCS definition of prime farmland, they concluded that they could 
not agree with any historic use of the land as set forth in the State's 
rules at CSR 38-2-10.2.a though 10.2.a.1.C.
    In response, as discussed above in Finding 2, section 701(20) of 
SMCRA defines prime farmland to include lands ``which have been used 
for intensive agricultural purposes * * *.'' In addition, 30 CFR 701.5 
defines prime farmland to mean those lands which are defined by the 
Secretary of Agriculture in 7 CFR Part 675 and which have been 
historically used for cropland. Because the State's prime farmland 
requirements include an historical use criterion that is no less 
effective than the Federal requirements at 30 CFR 701.5 and because the 
NRCS concurs with the

[[Page 21930]]

State's other negative determination criteria, we found WVDEP's 
proposal to be no less effective than the Federal requirements at 30 
CFR 785.17. Therefore, we are removing the applicable portion of the 
required amendment at 30 CFR 948.16(ee).
    We asked for comments from Federal agencies by letter dated May 30, 
2001, concerning the amendment package submitted to us on May 2, 2001, 
concerning House Bill 2663 (Administrative Record Number WV-1215).
    8. On June 25, 2001, the U.S. Fish and Wildlife Service responded 
to our request for comments, but it did not comment on any of the 
State's proposed revisions to the outstanding required amendments 
(Administrative Record Number WV-1224) that we are addressing in this 
document. Therefore, no response by us is necessary.
    We also asked for comments from Federal agencies by letter dated 
February 1, 2002, concerning the amendment package submitted to us on 
November 28, 2001, concerning blasting (Administrative Record Number 
WV-1268).
    9. On March 1, 2002 (Administrative Record Number WV-1281), MSHA 
responded and stated that the employee and adjacent landowner safety 
provisions are consistent with MSHA blasting standards. MSHA also 
stated it found no issues or impact upon coal miner's health and 
safety.
    10. On February 26, 2002 (Administrative Record Number WV-1279), 
COE responded and stated that their review of the proposed amendment 
found it to be generally satisfactory. The COE did not have any other 
comments related to the required amendments codified at 30 CFR 
948.16(kkkk), (llll), or (mmmm) that were addressed in the State's 
blasting amendment package.
    11. On February 5, 2002 (Administrative Record Number WV-1270), the 
NPS responded to the State's blasting amendment and stated that it had 
no specific comments.

Environmental Protection Agency (EPA) Comments/Concurrence

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
comments and the written concurrence of EPA for those provisions of the 
program amendment that relate to air or water quality standards issued 
under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or 
the Clean Air Act (42 U.S.C. 7401 et seq.).
    On January 26, 2001, and March 11, 2002, we asked for concurrence 
on the amendments from EPA (Administrative Record Numbers WV-1198 and 
WV-1283, respectively). On July 3, 2001, and April 10, 2002 
(Administrative Record Numbers WV-1225 and WV-1294), EPA sent us its 
written concurrence with comments. EPA stated that there are no 
apparent inconsistencies with the Clean Water Act (CWA), the National 
Pollutant Discharge Elimination System (NPDES) regulations, or other 
statutes and regulations under the authority of EPA. EPA said that it 
is providing its concurrence with the understanding that implementation 
of the amendments must comply with the CWA, NPDES regulations, and 
other statutes and regulations under its authority.
    In addition, EPA provided the following comments on the proposed 
amendments.
    1. Required amendment codified at 30 CFR 948.16(oo) concerning the 
required design standard for excavated sediment control structures. EPA 
stated that it does not have any comments on the design of sediment 
control structures to pass certain size storm flows, but wished to 
point out that settleable solids effluent limits are required by 40 CFR 
Part 434 for discharges to waters of the United States resulting from 
10-year, 24-hour or less storms.
    In response, we acknowledge the applicability of the regulations at 
40 CFR Part 434 to the West Virginia program at CSR 38-2-14.5.b.
    2. Required amendment codified at 30 CFR 948.16(vvv)(4) concerning 
the placement of coal processing waste in the backfill. EPA stated that 
it emphasizes the importance that all assurances be made during 
placement of any acidic material into backfills, whether refuse or 
overburden, to minimize acid formation and prevent acid seepage. If 
conditions exist where there are questions about the effectiveness of 
measures for preventing acid seepage, EPA stated, then acidic materials 
should not be placed in the backfill.
    In response, and as discussed above in Finding 14, acid-or toxic-
producing materials will be rendered non-acid and/or non-toxic prior to 
being placed in a backfill. WVDEP stated that CSR 38-2-14.15.m.2. 
provides that coal processing waste will not be placed in the backfill 
unless it is non-acid and/or non-toxic material or rendered non-acid 
and/or non-toxic material. In addition, CSR 38-2-1.6.b. prohibits acid-
forming or toxic-forming material from being buried or stored in 
proximity to a drainage course or groundwater system. We agree with EPA 
that if conditions exist where there are questions about the 
effectiveness of measures for preventing acid seepage, then acidic 
materials should not be placed in the backfill.
    3. Required amendment codified at 30 CFR 948.16(bbbb) concerning 
premining surveys that require technical assessments or engineering 
evaluations of water supplies prior to underground mining. EPA 
recommended that these surveys also include the quantity and chemical 
and biological quality of intermittent and perennial streams. 
Subsidence has caused impairment of aquatic habitat from water loss 
through streambed fissures and from ponding in subsided stream 
stretches, the EPA also stated.
    In response, we note that the Federal regulation at 30 CFR 
784.20(a)(3), upon which the State rule is based, applies only to 
technical assessments or engineering evaluations of certain protected 
water supplies, and not to land, or to streams in general.
    4. On April 10, 2002, in response to the State's proposed revision 
to satisfy 30 CFR 948.16(pppp) regarding bond release and premining 
water quality, EPA noted that on January 23, 2002, it promulgated 
effluent guideline regulations for remining operations. The regulations 
are consistent with section 301(p) of the CWA (Rahall Amendment) and 
provide an incentive for remining by requiring less stringent effluent 
limits than are required for conventional mining operations. According 
to EPA, the remining effluent limits in 40 CFR Part 434 Subpart G apply 
to preexisting discharges until bond release and, at a minimum, may not 
exceed preexisting baseline levels. Applications for NPDES permits for 
remining operations must include pollution abatement plans that 
identify the best management practices to be used. Applications must 
also include monitoring data on preexisting baseline loadings, unless 
such monitoring is considered infeasible due to inaccessible discharges 
or other reasons. EPA noted that it is expected that WVDEP will be 
providing regulations consistent with 40 CFR Part 434 Subpart G in the 
near future.
    In response, as discussed above in Finding 28, we acknowledge that 
EPA has recently issued effluent limitation guidelines for remining 
operations, and it is anticipated that the State's remining 
requirements, including CSR 38-2-24.4 if necessary, will have to be 
revised in the near future to comply with the new requirements.
    5. We asked EPA for comments by letter dated February 1, 2001, on 
the amendment package submitted on November 28, 2001, concerning 
blasting (Administrative Record Number WV-1268). On February 28, 2002, 
EPA responded and stated that it has

[[Page 21931]]

determined that there are no apparent inconsistencies with the Clean 
Water Act or other statutes and regulations under EPA's jurisdiction 
(Administrative Record Number WV-1282).
    6. We also asked EPA for comment and concurrence by letter dated 
May 29, 2001, on the amendment package submitted on May 2, 2001, 
concerning State House Bill 2663 (Administrative Record Number WV-
1214). By letter dated November 23, 2001, EPA provided the following 
comments (Administrative Record Number WV-1252). Concerning the State's 
response to 30 CFR 948.16(xx), EPA stated that this provision includes 
a requirement that, ``where water quality is paramount,'' outcrop 
barriers be constructed with impervious material and have controlled 
discharge points. EPA recommended that a definition or some 
clarification of the term ``paramount'' be added as it relates to water 
quality.
    In response, as discussed above in Finding 6, the State revised its 
rules at CSR 38-2-14.8.6.a. to provide design requirements for 
constructed outcrop barriers. In addition, on February 26, 2002, WVDEP 
proposed guidelines that further clarify what standard engineering 
practices will be followed when allowing for the removal of a natural 
barrier and constructing an outcrop barrier. The term ``paramount'' 
that EPA recommends be defined is also contained in W.Va. Code Section 
22-3-13(b)(25). Like the proposed rule, the statute provides that where 
water quality is paramount, the constructed barrier must be composed of 
impervious material with controlled discharge points. The State 
statutory provision allowing for constructed outcrop barriers was 
conditionally approved on January 21, 1981 (46 FR 5915, 5919). The 
conditional approval required the State to provide specific design 
criteria for constructed outcrop barriers. At time of approval, the 
State was not required to define the term, paramount. The purpose of 
both constructed and natural outcrop barriers is to prevent slides and 
to control erosion. By requiring an operator to construct an outcrop 
barrier of impervious material with controlled discharge points, the 
State should be able to ensure that the constructed barrier will 
effectively control erosion and protect surrounding streams. Not all 
outcrop barriers need to be constructed with impervious material, such 
as clay, to control erosion. As proposed, it can be asserted that the 
State believes that it may be necessary to construct some outcrop 
barriers of impervious material whenever water quality is paramount. 
This may be due to the fact that the proposed outcrop barrier may be 
adjacent to or in the vicinity of a high quality stream. However, given 
that the State's existing statutory provision is identical to the 
proposed regulatory provision at CSR 38-2-14.8.a.6. and because the 
State's constructed outcrop barrier requirements are in accordance with 
the Federal requirements for natural barriers at SMCRA section 
515(b)(25), we do not agree that the term ``paramount'' needs to be 
defined or further clarified as recommended by EPA.
    7. Concerning the required amendments at 30 CFR 948.16(ffff), 
(gggg), and (hhhh), EPA noted that these provisions relate to the 
amount of time allowed to remedy subsidence damage to lands, 
structures, or water supplies. EPA stated that it is unclear in this 
section or other sections regarding subsidence control if the term 
``lands'' includes streams and wetlands which may be adversely affected 
by water loss through subsidence cracks and ponding of subsided stream 
portions. To provide clarification, EPA recommended that the words 
``streams and wetlands'' be included along with lands, structures, and 
water supplies in this section and other appropriate sections 
addressing subsidence control.
    In response, we note that the Federal definition of ``material 
damage'' at 30 CFR 701.5 covers damage to the surface and to surface 
features, such as wetlands, streams, and bodies of water, and to 
structures or facilities. 60 FR 16724, col. 3, March 31, 1995. The 
State's definition of material damage contained in CSR 38-2-16.2.c. is 
substantively identical to the Federal definition in these pertinent 
respects. Therefore, we expect the State to interpret its definition of 
``material damage'' in the same manner as we interpret the Federal 
definition.

V. OSM's Decision

    Based on the above findings, we approve the amendments sent to us 
by West Virginia. In addition, we are removing the required program 
amendments codified at 30 CFR 948.16(a), (dd), (ee), (oo), (tt), (xx), 
(nnn), (ooo), (qqq), (sss), (vvv)(1) through (4), (zzz), (aaaa), 
(bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), (llll), (mmmm), 
(nnnn), (oooo), and (pppp).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 948, which codify decisions concerning the West Virginia 
program. We find that good cause exists under 5 U.S.C. 553 (d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

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 allowable 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 because 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 the Federal regulations at 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.

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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with''

[[Page 21932]]

regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211 `` Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse affect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

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 OMB under the Paperwork Reduction Act (44 
U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal 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, geographic regions or Federal, State, or local government 
agencies; and c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

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

List of Subjects in 30 CFR Part 948:

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 19, 2002.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 948 is amended 
as set forth below:

PART 948--WEST VIRGINIA

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

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

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


948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                        Date of publication of
 Original amendment submission dates          final rule                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                          *         *         *         *         *         *         *
November 30, 2000; May 2, 2001;        May 1, 2002............  Emergency rule provisions: CSR 38-2-3.12.a.1,
 November 28, 2001; February 26,                                 a.2, a.2.B; 5.4.b.8, d.3; 16.2.c.4.
 2002; March 8, 2002.
                                                                Policy/guidance documents submitted February 26,
                                                                 2002: Attachments 1A; 2P; 3P and the updated
                                                                 listing (Administrative Record Number WV-1278);
                                                                 4 except examples 1 and 3 through 8; 6; and 9.
                                                                Policy/guidance documents submitted March 8,
                                                                 2002: Attachments 1; 3A; and 8.
                                                                In House Bill 2663: CSR 38-2-3.12.a.1; 3.14.a;
                                                                 12.2.e; 12.4.e; 14.8.a.6; 16.2.c.4; and 24.4.
                                                                In Senate Bill 689: W. Va. Code 22-3-13a(g),
                                                                 (j); 30a(a).
----------------------------------------------------------------------------------------------------------------


    3. Section 948.16 is amended by removing and reserving paragraphs 
(a), (dd), (ee), (oo), (tt), (xx), (nnn), (ooo), (qqq), (sss), (vvv), 
(zzz), (aaaa), (bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), 
(llll), (mmmm), (nnnn), (oooo), and (pppp).

[FR Doc. 02-10759 Filed 4-30-02; 8:45 am]
BILLING CODE 4310-05-P