[Federal Register Volume 68, Number 71 (Monday, April 14, 2003)]
[Proposed Rules]
[Pages 17896-17903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9033]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-098-FOR]


West Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendments.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The program amendment consists of 
changes to the Code of West Virginia (W. Va. Code) as contained in 
House Bills 2881 and 2882, changes to the Coal Related Dam Safety Rules 
at Code of State Regulations (CSR) 38-4, and changes to the Surface 
Coal Mining and Reclamation Regulations at CSR 38-2 as contained in 
House Bill 2603. The amendment concerns a variety of topics including 
bond release, dam safety, permit application requirements,

[[Page 17897]]

drainage and sediment control systems, fish and wildlife 
considerations, revegetation, performance standards, inspection and 
enforcement, coal refuse, and performance standards applicable to 
remining operations. The amendment is intended to improve the 
effectiveness of the West Virginia program and to render the West 
Virginia program no less effective than the Federal regulations.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on May 14, 2003. If requested, we will hold a public 
hearing on the amendment on May 9, 2003. We will accept requests to 
speak at a hearing until 4 p.m. (local time), on April 29, 2003.

ADDRESSES: You should mail or hand-deliver written comments and 
requests to speak at the hearing to Mr. Roger W. Calhoun, Director, 
Charleston Field Office at the address listed below.
    You may review copies of the West Virginia program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Charleston Field Office.
    Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail: 
[email protected].
    West Virginia Department of Environmental Protection, 10 McJunkin 
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510. Copies of 
Enrolled House Bills 2603, 2881, and 2882 and summaries of changes to 
the State's Coal Related Dam Safety Rules and the Surface Mining 
Reclamation Rules will be posted at the Department's Internet page: 
http://www.state.wv.us.
    In addition, you may review copies of the proposed amendment during 
regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 75 High Street, Room 229, PO Box 886, Morgantown, West Virginia 
26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Telephone: (304) 347-7158. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 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 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

    By letter dated March 18, 2003, the West Virginia Department of 
Environmental Protection (WVDEP) sent us a proposed amendment to its 
program (Administrative Record Number WV-1352) under SMCRA (30 U.S.C. 
1201 et seq.). West Virginia sent the amendment in response to the 
required program amendments at 30 CFR 948.16(nnn), (ooo), and (qqqq) 
and to include the changes made at its own initiative.
    The program amendment consists of changes to the W. Va. Code as 
contained in House Bills 2881 and 2882, and changes to the Coal Related 
Dam Safety Rule at CSR 38-4 and to the Surface Coal Mining and 
Reclamation Regulations at CSR 38-2 as contained in House Bill 2603. 
The amendment concerns a variety of topics including bond release, dam 
safety, permit application requirements, drainage and sediment control 
systems, fish and wildlife considerations, revegetation, performance 
standards, inspection and enforcement, coal refuse, and performance 
standards applicable to remining operations. The amendment is intended 
to improve the effectiveness of the West Virginia program and to render 
the West Virginia program no less effective than the Federal 
regulations.
    A. The provisions of the W. Va. Code that West Virginia proposes to 
revise as contained in House Bills 2881 and 2882 are:
    W. Va. Code 22-3-23, concerning release of bond or deposits, is 
amended by changing the term ``director'' to ``secretary'' in numerous 
locations.
    W. Va. Code 22-3-23(c)(1)(C), concerning bond release for all 
operations except those with an approved variance from approximate 
original contour (AOC), is amended by adding the following language to 
the end of the last sentence: ``where expressly authorized by 
legislative rule promulgated pursuant to section three, article one of 
this chapter.'' As amended, the sentence reads as follows:

    Provided, however, that the release may be made where the 
quality of the untreated post mining water discharged is better than 
or equal to the premining water quality discharged from the mining 
site where expressly authorized by legislative rule promulgated 
pursuant to section three, article one of this chapter.

    W. Va. Code 22-3-23(c)(2)(C), concerning bond release for 
operations with an approved variance from AOC, is amended by adding the 
following language to the end of the last sentence: ``where expressly 
authorized by legislative rule promulgated pursuant to section three, 
article one of this chapter.'' As amended, the sentence reads as 
follows:

    Provided, however, that the release may be made where the 
quality of the untreated post mining water discharged is better than 
or equal to the premining water quality discharged from the mining 
site where expressly authorized by legislative rule promulgated 
pursuant to section three, article one of this chapter.

    W. Va. Code 22-3-23(c)(2)(C), concerning bond release, is amended 
by deleting the reference to subdivision 3 and requiring compliance 
with the bond release scheduling requirements of subdivisions 1 and 2 
of this subsection.
    W. Va. Code 22B-1-7, concerning appeals to boards, is amended by 
changing the term ``director'' to ``secretary'' in several locations.
    W. Va. Code 22B-1-7(d), concerning appeals to boards, is amended by 
adding a proviso that unjust hardship shall not be grounds for granting 
a stay or suspension of an order, permit or

[[Page 17898]]

official action for an order issued pursuant to W. Va. Code 22-3.
    W. Va. Code 22B-1-7(h), concerning appeals to boards, is amended by 
deleting the reference to article 3 in regard to appeals to the 
environmental quality board.
    B. The provisions of the Code of State Regulations that West 
Virginia proposes to revise as contained in House Bill 2603 are:

Surface Mining Reclamation Regulations at CSR 38-2

    CSR 38-2 is amended by updating the name of the U.S. Department of 
Agriculture, Natural Resources Conservation Service (formerly Soil 
Conservation Service) in several locations, i.e., subsections 3.2.c, 
3.20, 10.2.a.4, 10.3.a.1, 10.4.c.1, 10.6.b.2, 10.6.b.7.A, 10.6.b.7.B, 
and 10.6.b.8.
    CSR 38-2-3.7.d, concerning disposal of excess spoil, is new and 
adds a requirement for a survey of the watershed identifying all man 
made structures and residents in proximity to the disposal area to 
determine potential storm runoff impacts. At least 30 days prior to any 
beginning of placement of material, the accuracy of the survey shall be 
field verified. Any changes shall be documented and brought to the 
attention of the Secretary to determine if there is a need to revise 
the permit.
    CSR 38-2-3.22.f.5.A, A.1 and A.2, concerning the requirement to 
restore, protect, or replace water supply of present water users, is 
new and adds that the hydrologic reclamation plan shall contain a 
description of the measures to be taken to replace water supplies that 
are contaminated, diminished, or interrupted. The plan shall include an 
identification of the water replacement, which includes quantity and 
quality descriptions including discharge rates, or usage and depth to 
water; and documentation that the development of identified water 
replacement is feasible and that the financial resources necessary to 
replace the affected water supply are available.
    CSR 38-2-3.31.a, concerning Federal, State, county, municipal, or 
other local government-financed highway or other construction 
exemption, is amended by adding a provision that may allow funding at 
less than 50 percent to qualify if the construction is undertaken as an 
approved government reclamation contract.
    CSR 38-2-5.4.b.4, concerning sediment control, is amended by adding 
language to provide that all sediment control systems for valley fills, 
including durable rock fills, shall be designed for the entire 
disturbed acreage and shall include a schedule indicating timing and 
sequence of construction over the life of the fill.
    CSR 38-2-5.4.b.11, concerning the control of water discharge, is 
amended by adding language to provide that the location of discharge 
points and the volume to be released shall not cause a net increase in 
peak runoff from the proposed permit area when compared to premining 
conditions and shall be compatible with the post-mining configuration 
and adequately address watershed transfer.
    CSR 38-2-5.6 is a new provision concerning storm water runoff and 
requires each permit application to contain a storm water runoff 
analysis consistent with subsections 5.6.a through 5.6.d.1.e. The new 
language provides as follows:
    5.6.a. Each application for a permit shall contain a storm water 
runoff analysis which includes the following:
    5.6.a.1. An analysis showing the changes in storm runoff caused by 
the proposed operations(s) using standard engineering and hydrologic 
practices and assumptions.
    5.6.a.2. The analysis will evaluate pre-mining, worst case during 
mining, and post-mining (Phase III standards) conditions. The storm 
used for the analysis will be the largest required design storm for any 
sediment control or other water retention structure proposed in the 
application. The analysis must take into account all allowable 
operational clearing and grubbing activities. The applicant will 
establish evaluation points on a case-by-case basis depending on site 
specific conditions including, but not limited to, type of operation 
and proximity of man-made structures.
    5.6.a.3. The worst case during mining and post-mining evaluations 
must show no net increase in peak runoff compared to the pre-mining 
evaluation.
    5.6.b. Each application for a permit shall contain a runoff-
monitoring plan which shall include, but is not limited to, the 
installation and maintenance of rain gauges. The plan shall be specific 
to local conditions. All operations must record daily precipitation and 
report monitoring results on a monthly basis and any one (1) year, 
twenty-four (24) storm event or greater must be reported to the 
Secretary within twenty-four (24) hours and shall include the results 
of a permit wide drainage system inspection.
    5.6.c. Each application for a permit shall contain a sediment 
retention plan to minimize downstream sediment deposition within the 
watershed resulting from precipitation events. Sediment retention plans 
may include, but are not limited to decant ponds, secondary control 
structures, increased frequency for cleaning out sediment control 
structures, or other methods approved by the Secretary.
    5.6.d. After the first day of January two thousand four, all active 
mining operations must be consistent with the requirements of this 
subdivision. The permittee must demonstrate in writing that the 
operation is in compliance or a revision shall be prepared and 
submitted to the Secretary for approval within the schedule described 
in 5.6.d.1. Full compliance [compliance] with the permit revision shall 
be accomplished within 180 days from the date of Secretary approval. 
Active mining operations for the purpose of this subsection exclude 
permits that have obtained at least a Phase I release and are 
vegetated. Provided, however, permits or portions of permits that meet 
at least Phase I standards and are vegetated will be considered on a 
case by case basis.
5.6.d.1. Schedule of Submittal
    5.6.d.1.a. Within 180 days from the first day of January two 
thousand four all active mining operations with permitted acreage 
greater than 400 acres must demonstrate in writing that the operation 
is in compliance or a revision shall be prepared and submitted to the 
Secretary for approval.
    5.6.d.1.b. Within 360 days from the first day of January two 
thousand four all active mining operations with permitted acreage 
between 200 and 400 acres must demonstrate in writing that the 
operation is in compliance or a revision shall be prepared and 
submitted to the Secretary for approval.
    5.6.d.1.c. Within 540 days from the first day of January two 
thousand four all active mining operations with permitted acreage 
between 100 and less than 200 acres must demonstrate in writing that 
the operation is in compliance or a revision shall be prepared and 
submitted to the Secretary for approval.
    5.6.d.1.d. Within 720 days from the first day of January two 
thousand four all active mining operations with permitted acreage 
between 50 and less than 100 acres must demonstrate in writing that the 
operation is in compliance or a revision shall be prepared and 
submitted to the Secretary for approval.
    5.6.d.1.e. Within 900 days from the first day of January two 
thousand four all active mining operations with permitted acreage less 
than 50 acres must demonstrate in writing that the operation is in 
compliance or a revision shall be prepared and submitted to the 
Secretary for approval. Provided, however, an exemption may be

[[Page 17899]]

considered on a case-by-case basis. Futhermore, haulroads, loadouts, 
and ventilation facilities are excluded from this requirement.
    CSR 38-2-8.2.e, concerning fish and wildlife considerations, is 
amended by adding language to provide that in constructing a windrow, 
timber shall not be placed in a manner or location to block natural 
drainways.
    CSR 38-2-9.1.a, concerning revegetation, is amended by adding 
language to provide that reforestation opportunities must be maximized 
for all areas not directly associated with the primary approved 
postmining land use and requiring revegetation plans for those areas to 
be reforested to include a map, a planting schedule and stocking rates.
    CSR 38-2-9.3.d, concerning standards for evaluating vegetative 
cover, is amended by deleting the words ``from the Handbook,'' so that 
sampling techniques will no longer be taken from the State's 
revegetation handbook.
    CSR 38-2-9.3.f, concerning standards for evaluating vegetative 
cover and productivity, is amended by deleting the words ``in the 
Handbook,'' and replacing those words with the words ``by the 
Secretary.'' The effect of the change is that vegetation ground cover 
and productivity levels will be set by the Secretary of the WVDEP, 
rather than as provided in the State's revegetation handbook.
    CSR 38-2-14.5.h, concerning hydrologic balance, is amended by 
adding a proviso that the requirement for replacement of an affected 
water supply that is needed for the land use in existence at the time 
of contamination, diminution or interruption or where the affected 
water supply is necessary to achieve the post-mining land use shall not 
be waived.
    CSR 38-2-14.14.g.1, concerning durable rock fills, is amended by 
adding language to provide that fills proposed after January 1, 2004, 
may only be approved with the design, construction, and use of a single 
lift fill if they include an erosion protection zone or a durable rock 
fill designed to be reclaimed from the tow [toe] upward.
    CSR 38-2-14.14.g.2 is new and adds additional design specifications 
and requirements for single lift fills with an erosion protection zone 
at subsections 14.14.g.2.A through 14.14.g.2.B.3. The new language 
provides as follows:
    14.14.g.2.A. Erosion Protection Zone. The erosion protection zone 
is a designed structure constructed to provide energy dissipation to 
minimize erosion vulnerability and may extend beyond the designed toe 
of the fill.
    14.14.g.2.A.1. The effective length of the erosion protection zone 
shall be at least one half the height of the fill measured to the 
target fill elevation or fill design elevation as defined in the 
approximate original contour procedures and shall be designed to 
provide a continuous underdrain extension from the fill through and 
beneath the erosion protection zone.
    14.14.g.2.A.2. The height of the erosion protection zone shall be 
sufficient to accommodate designed flow from the underdrain of the fill 
and shall comply with 14.14.e.1. of this rule.
    14.14.g.2.A.3. The erosion protection zone shall be constructed of 
durable rock as defined in 14.14.g.1. originating from a permit area 
and shall be of sufficient gradation to satisfy the underdrain function 
of the fill.
    14.14.g.2.A.4. The outer slope or face of the erosion protection 
zone shall be no steeper than two (2) horizontal or [to] one (1) 
vertical (2:1). The top of the erosion protection zone shall slope 
toward the fill at a three (3) to five (5) percent grade and slope 
laterally from the center toward the sides at one (1) percent grade to 
discharge channels capable of passing the peak runoff of a one-hundred 
(100) year, twenty-four (24) hour precipitation event.
    14.14.g.2.A.5. Prior to commencement of single lift construction of 
the durable rock fill, the erosion protection zone must be seeded and 
certified by a registered professional engineer as a critical phase of 
fill construction. The erosion protection zone shall be maintained 
until completion of reclamation of the fill.
    14.14.g.2.A.6. Unless otherwise approved in the reclamation plan, 
the erosion protection zone shall be removed and the area upon which it 
was located shall be regraded and revegetated in accordance with the 
reclamation plan.
    14.14.g.2.B. Single Lift Construction Requirements.
    14.14.g.2.B.1. Excess spoil disposal shall commence at the head of 
the hollow and proceed downstream to the final toe. Unless required for 
construction of the underdrain, there shall be no material placed in 
the fill from the sides of the valley more than 300 feet ahead of the 
advancing toe. Exceptions from side placement of material limits may be 
approved by the Secretary if requested and the applicant can 
demonstrate through sound engineering that it is necessary to 
facilitate access to isolated coal seams, the head of the hollow or 
otherwise facilitates fill stability, erosion, or drainage control.
    14.14.g.2.B.2. During construction, the fill shall be designed and 
maintained in such a manner as to prevent water from discharging over 
the face of the fill.
    14.14.g.2.B.2.(a). The top of the fill shall be configured to 
prevent water from discharging over the face of the fill and to direct 
water to the sides of the fill.
    14.14.g.2.B.2.(b). Water discharging along the edges of the fill 
shall be conveyed in such a manner to minimize erosion along the edges 
of the fill.
    14.14.g.2.B.3. Reclamation of the fill shall be initiated from the 
top of the fill and progress to the toe with concurrent construction of 
terraces and permanent drainage.
    CSR 38-2-14.14.g.3 is new and adds design specifications and 
requirements at 14.14.g.3.A through 14.14.g.3.B for durable rock fills 
designed to be reclaimed from the toe upward. The new language provides 
as follows:
    14.14.g.3.A. Transportation of Material to toe of fill. The method 
of transporting material to the toe of the fill shall be specified in 
the application and shall include a plan for inclement weather dumping. 
The means of transporting material to the toe may be by any method 
authorized by the Act and this rule and is not limited to the use of 
roads.
    14.14.g.3.A.1. Constructed roads shall be graded and sloped in such 
a manner that water does not discharge over the face. Sumps shall be 
constructed along the road in switchback areas and shall be located at 
least 15 feet from the outslope.
    14.14.g.3.A.2. The constructed road shall be in compliance with all 
applicable State and Federal safety requirements. The design criteria 
to comply with all applicable State and Federal safety requirements 
shall be included in the permit.
    14.14.g.3.B. Once the necessary volume of material has been 
transported to the toe of the fill, face construction and installation 
of terraces and permanent drainage shall commence. The face 
construction and reclamation of the fill shall be from the bottom up 
with progressive construction of terraces and permanent drainage in 
dumping increments not to exceed 100 feet.
    CSR 38-2-14.15.a.2, concerning contemporaneous reclamation 
standards, is amended by adding language to provide that the mining and 
reclamation plan shall contain information on how mining and 
reclamation operations will be coordinated so as to minimize surface 
water runoff, and comply with the storm water runoff plan.

[[Page 17900]]

    CSR 38-2-14.15.c, concerning reclaimed area, is amended by adding 
the words ``and seeding has occurred'' to the definition of reclaimed 
acreage that is applicable to this subsection. As amended, the 
definition of reclaimed area provides that for purposes of this 
subsection, reclaimed acreage shall be that portion of the permit area 
which has at a minimum been fully regraded and stabilized in accordance 
with the reclamation plan, meets Phase I standards, and seeding has 
occurred.
    CSR 38-2-14.15.g, concerning contemporaneous reclamation variance--
permit applications, is amended by adding language to require a 
demonstration that the variance being sought will comply with CSR 38-2-
5.6 concerning the new storm water runoff provisions.
    CSR 38-2-17.1, concerning Small Operator Assistance Program, is 
amended by adding that the Secretary of WVDEP shall establish a formula 
for allocating funds to provide services for eligible small operators 
if available funds are less than those required to provide the services 
pursuant to CSR 38-2-17.
    CSR 38-2-20.6.a, concerning civil penalty assessments, is amended 
by deleting all language concerning an ``assessment officer,'' and 
adding language concerning the Secretary of WVDEP. The new language 
provides that the Secretary shall not determine the proposed penalty 
assessment until such time as an inspection of the violation has been 
conducted and the findings of that inspection are submitted to the 
Secretary in writing.
    CSR 38-2-20.6.c, concerning notice of civil penalty assessment, is 
amended by deleting two sentences that provide that the ``Secretary 
shall also give notice including any worksheet, in person or by 
certified mail, to the operator of any penalty adjustment as a result 
of an informal conference within thirty (30) days following the date of 
the conference. The reasons for reassessment shall be documented in the 
file by the assessment officer.'' Also, the following sentence is added 
immediately before the existing last sentence: ``The reasons for 
reassessment shall be documented in the file by the Secretary.''
    CSR 38-2-20.6.d, concerning notice of informal assessment 
conference, is amended by adding language to provide that the Secretary 
shall arrange for a conference to review the proposed assessment or 
reassessment, upon written request if received within 15 days from the 
date the proposed assessment or reassessment is received. Language is 
also added to provide that the operator shall forward the amount of 
proposed penalty assessment to the Secretary for placement in an 
interest bearing escrow account, and that the Secretary shall assign an 
assessment officer to hold the assessment conference.
    CSR 38-2-20.6.e, concerning informal conference, is amended by 
adding language to provide that the assessment officer shall give 
notice including any worksheet, in person or by certified mail, to the 
operator of any penalty adjustment as a result of an informal 
conference within 30 days following the date of the conference. The 
reasons for the assessment officer's action shall be documented in the 
file.
    CSR 38-2-20.6.f is new and adds the requirement that an increase or 
reduction of a proposed civil penalty of more than 25 percent and more 
than $500.00 shall not be final and binding until approved by the 
Secretary.
    CSR 38-2-20.6.j, concerning escrow, is amended by adding the phrase 
``an informal conference or'' immediately before the words ``judicial 
review of a proposed assessment.'' In addition, the words ``continue 
to'' are deleted immediately before the words ``be held in escrow.'' 
The new language provides that if a person requests an informal 
conference or judicial review of a proposed assessment, the proposed 
penalty assessment shall be held in escrow until completion of the 
judicial review.
    CSR 38-2-22.4.g.3.A, concerning coal refuse, impoundments designed 
without discharge structures, is amended by deleting the second 
sentence and adding three sentences in its place. The new language 
requires that a system shall be designed to dewater the impoundment of 
the probable maximum storm in 10 days by pumping or other means. The 
new language requires the requirements of the Coal Related Dam Safety 
Rule at CSR 38-4-25.14, concerning removal of storm water from 
impoundments, shall be met. For existing structures exceeding the 
minimum 2 PMP volume requirement, the dewatering system shall be 
installed when the containment volume is reduced to 2 PMPs.
    CSR 38-2-22.4.i.6 is new and concerns the use of corrugated metal 
pipes in spillways. This provision provides that corrugated metal pipes 
shall not be used in new or unconstructed refuse impoundments or slurry 
cells. If an existing corrugated metal pipe has developed leaks or 
otherwise deteriorated so as to cause the pipe to not function properly 
and such deterioration constitutes a hazard to the proper operation of 
the impoundment, the Secretary will require the corrugated metal pipe 
to be either repaired or replaced.
    CSR 38-2-24.2.a, concerning remining operations--revegetation, is 
amended by deleting the words ``in the Handbook'' at the end of the 
last sentence, and replacing those words with the words ``by the 
Secretary.'' The new revision provides that the determination of 
premining [remining] ground cover success and productivity shall be 
made using sampling techniques described by the Secretary.
    CSR 38-2-24.3, concerning remining operations--water quality, is 
amended by adding the following language at the end of the last 
sentence: ``or a coal remining operation as defined in 40 CFR Part 434 
as amended may qualify for the water quality exemptions set forth in 40 
CFR 434 as amended.'' The new revision provides that a coal remining 
operation which began after February 4, 1987, and on a site which was 
mined prior to August 3, 1977, may qualify for the water quality 
exemptions set forth in subsection (p), section 301 of the Federal 
Clean Water Act, as amended or a coal remining operation as defined in 
40 CFR Part 434 as amended may qualify for the water quality exemptions 
set forth in 40 CFR Part 434 as amended.
    CSR 38-2-24.4, concerning remining operations--requirements to 
release bonds, is amended by adding the following language at the end 
of the first sentence: ``and the terms and conditions set forth in the 
NPDES [National Pollutant Discharge Elimination System] Permit in 
accordance with subsection (p), section 301 of the Federal Clean Water 
Act, as amended or 40 CFR Part 434 as amended.'' The new revision 
provides that bond release for remining operations shall be in 
accordance with all of the requirements set forth in subsection 12.2 of 
this rule and the terms and conditions set forth in the NPDES Permit in 
accordance with subsection (p), section 301 of the Federal Clean Water 
Act, as amended or 40 CFR Part 434 as amended.
Coal Related Dam Safety Rules at CSR 38-4
    CSR 38-4-3.4.c, concerning hazard evaluation, is amended by 
deleting the existing heading and renaming the provision ``Assessment 
of Hazards and Consequences of Failure.'' In addition, the following 
language is added as an introductory paragraph:

    All new applications and expansions to existing impoundments 
must submit a complete Assessment of Hazards and Consequences of 
Failure (AHCF) in narrative form, certified by a Registered 
Professional Engineer (RPE), that addresses potential risks and 
impacts resulting from failure that could

[[Page 17901]]

occur from the construction and/or operation of the facility and 
addresses the following:

    CSR 38-4-7.1.f.3.A, concerning Class C impoundments designed 
without discharge structures, is amended by deleting the existing 
second sentence and replacing that sentence with the following three 
sentences. ``A system shall be designed to dewater the impoundment of 
the probable maximum storm in ten (10) days by pumping or by other 
means. The requirements of 25.14 shall also be met. For existing 
structures exceeding the minimum 2 PMP volume requirements, the 
dewatering system shall be installed when the containment volume is 
reduced to 2 PMPs.''
    CSR 38-4-7.1.n is new and concerns use of corrugated metal pipes 
for spillways. The new language provides as follows:

    Corrugated metal pipes, whether coated or uncoated, shall not be 
used in new or unconstructed refuse impoundments or slurry cells. If 
an existing corrugated metal pipe has developed leaks or otherwise 
deteriorated so as to cause the pipe to not function properly and 
such deterioration constitutes a hazard to the proper operation of 
the impoundment, the Secretary will require the corrugated metal 
pipe to be either repaired or replaced. Provided, however, sediment 
control or other water retention structures used for the treatment 
of effluent and designated as Class A Dams under 3.4.b of this rule 
are exempt from this prohibition.

    CSR 38-4-8.1, concerning subsidence evaluation of the site and the 
dam and its storage area, is amended by revising the phrase ``that coal 
pillars and floor are strong'' to read ``that the coal pillars, roofs 
and floor are strong.'' The last two existing sentences are deleted, 
and the new last sentence is amended by adding, at the end, the words 
``or are otherwise capable of preventing significant subsidence 
impacts, in accordance with 8.2 and 8.3 of this rule.'' The effect of 
this change is to add this requirement as an alternative condition for 
allowing dams to be constructed over underground workings.
    CSR 38-4-8.2.a, concerning basin, is new and provides as follows:

    There shall be no underground mining in a safety zone that 
extends horizontally 200 feet from the high water mark of an 
impoundment and vertically to a depth that provides for a minimum 
thickness of 100 feet of solid strata between the bottom of the pool 
and any mining. The presence of any mine workings within this safety 
zone is prohibited unless the potential subsidence effects are 
mitigated by injection grouting or otherwise filling the mine 
related voids completely. Alternately, such risk can be mitigated by 
providing constructed barriers, grouting or other means to establish 
equivalent protection that will comply with the safety zone 
dimensions. Coal extraction of 80 percent or more is prohibited 
unless at a depth greater than 60 times the coal extraction 
thickness or at a depth where the maximum tensile strain at original 
ground is less than 5.0 mm/m (0.5%), whichever is greater. The 
Secretary may impose other limitations as specified by BM IC 8741, 
barrier analysis, other pertinent analysis or due to conditions such 
as fracturing, which may require a larger safety zone or further 
limitations in coal extraction.

    CSR 38-4-8.2.b, concerning embankment, is new and provides as 
follows:

    There shall be no mining in a safety zone under the structural 
embankment measured outward 200 feet in all directions, downward 350 
feet and then outward at a dip of 65[deg] from the horizontal, 
unless acceptable pillar stability and/or strain effects are 
confirmed by a design evaluation to be certified by an RPE. Also, 
the related AHCF must clearly demonstrate that the facility will 
have a low risk of impact to the public and the environment. 
Existing mine workings within this safety zone having the potential 
to cause significant subsidence impacts are prohibited unless those 
effects are mitigated by grouting, filling the mine related voids or 
providing comparable protection. Additional underground mining may 
be subsequently approved in the embankment safety zone only if a 
design evaluation, certified by an RPE, demonstrates that no 
significant impacts from subsidence can result.

    CSR 38-4-8.2.c, concerning existing impoundments, is new and 
provides as follows:

    Existing impoundments that currently have mining within the 
safety zones must be evaluated in accordance with this section and 
3.4.c. of this rule. Remedial measures shall be implemented as 
necessary to eliminate or reduce the potential impact on the public 
and/or the environment. Remedial measures may include, but are not 
limited to, constructed barriers, grouting of underground works and 
back stowing of mines.

    CSR 38-4-8.3, concerning safety factors applicable to new, revised, 
and existing impoundment facilities, is new and provides as follows:

    A detailed engineering design evaluation of the embankment and 
impoundment basin areas shall be conducted to assure protection of 
the environment and public. The engineering design analysis shall 
demonstrate that appropriate safety factors exist. Major design 
considerations of this engineering analysis are embankment 
stability, pillar design, outcrop barrier design, and any other 
design aspects as necessary to manage risk. The adequacy of 
calculated safety factors should be determined by applying 
appropriate regulatory standards. For design applications where 
regulatory standards do not exist, the AHCF should be the basis used 
to derive acceptable safety factors.

    CSR 38-4-25.14 concerning removal of storm water in the impoundment 
is new and provides as follows:

    Storm water in the impoundment shall be removed as specified in 
the design requirements. In addition, the slurry impoundment pool 
shall be maintained at the lowest practical pool level based upon 
the design requirements and the AHCF. The mechanical storm 
dewatering system shall be installed as designed and maintained 
properly with the system being tested monthly.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the West Virginia program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Charleston Field Office may not be logged 
in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include Attn: SATS NO. WV-098-FOR'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Charleston Field 
office at (304) 347-7158.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from

[[Page 17902]]

individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on 
April 29, 2003. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
will be open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the Administrative Record.

IV. 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 regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget 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 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 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, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is our decision on a State regulatory 
program and does not involve a Federal regulation involving Indian 
lands.

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 effect 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

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies 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. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; 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

[[Page 17903]]

determination is based upon the analysis performed under various laws 
and executive orders for the counterpart Federal regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 28, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-9033 Filed 4-11-03; 8:45 am]
BILLING CODE 4310-05-P