[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40157-40167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17080]


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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: Final rule; approval of amendment.

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SUMMARY: We are approving, with one exception, a proposed amendment to 
the West Virginia surface coal mining regulatory program (the West 
Virginia program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The program amendment consists of changes 
to the Code of West Virginia (W. Va. Code) as contained in House Bills 
2881 and 2882, and changes to the State's Coal Related Dam Safety Rules 
at Code of State Regulations (CSR) 38-4, and West Virginia's Surface 
Mining 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.

EFFECTIVE DATE: July 7, 2003.

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 Amendment
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 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.

[[Page 40158]]

II. Submission of the 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 submitted the amendment in response to the 
required program amendments at 30 CFR 948.16(nnn), (ooo), and (qqqq) 
and made other changes at its own initiative.
    We announced receipt of the proposed amendment in the April 14, 
2003, Federal Register (68 FR 17896). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment (Administrative 
Record Number WV-1358). We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on May 
14, 2003. We received comments from 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 
amendment to the West Virginia program. Any revisions that we do not 
specifically discuss below concern nonsubstantive wording or editorial 
changes and are approved here without discussion.
    The program amendment consists of changes to the W. Va. Code as 
contained in House Bills 2881 and 2882, and changes to the State's Coal 
Related Dam Safety Rule at CSR 38-4 and to the Surface Mining 
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 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.
    In order to expedite our review of the provisions that concern the 
recommendations of West Virginia's 2002 Flood Study (Governor's 
Executive Order No. 16-01), we have separated the amendment relating to 
CSR 38-4 Coal Related Dam Safety Rule and will address those proposed 
amendments in a separate Federal Register notice at a later date, 
except for CSR 38-4-25.14 which is addressed below at Finding 31. In 
addition, the proposed amendment to CSR 38-2-3.31.a is similar to 
language that we are currently considering under a separate program 
amendment. Therefore, we are removing the proposed amendment to CSR 38-
2-3.31.a from the current amendment, and we will address the proposed 
amendment to CSR 38-2-3.31.a in a separate Federal Register notice at a 
later date. Our findings relating to the W. Va. Code and the remainder 
of the amendments to West Virginia's Surface Mining Reclamation 
Regulations are detailed below.
    1. As described in Committee Substitute for House Bill 2881, W. Va. 
Code 22-3-23(a)-(h), concerning release of bond or deposits, are 
amended by changing the term ``director'' to ``secretary'' in numerous 
locations, and by changing the term ``division'' to ``department'' in 
one location. We find that these amendments accurately reflect the 
current organization of the WVDEP and do not render the West Virginia 
program less stringent than SMCRA nor less effective than the Federal 
regulations and can be approved.
    2. As described in Committee Substitute for House Bill 2881, W. Va. 
Code 22-3-23(c)(1)(C), concerning bond release for all operations that 
are being returned to 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.''

    On July 11, 1985, OSM disapproved and on August 29, 1985, OSM 
preempted and superseded the language of the proviso that is being 
amended here (50 FR 28316, 28319 and 50 FR 35082, 35083, respectively). 
At that time, the proviso was located at W. Va. Code 22A-3-23(c)(3). 
OSM took that action because under certain circumstances, the proviso 
would permit final bond release prior to attainment of revegetation 
standards in accordance with the approved reclamation plan. OSM took 
that action after determining that the provision was inconsistent with 
section 519(c)(3) of SMCRA, based on the reasons cited in Finding 6 of 
the July 11, 1985, Federal Register notice.
    The language that is being added to the proviso has the effect of 
limiting the application of the proviso to only those regulations where 
such alternative water quality standards are specifically authorized. 
This amendment renders the language of this proviso inoffensive to 
section 519(c)(3) of SMCRA, because the circumstances of its 
applicability will be dictated by specific regulations that were 
promulgated in accordance with the Clean Water Act. Therefore, the 
specific implementing regulations authorized by this proviso must be 
evaluated relative to the requirements of section 519(c)(3) of SMCRA. 
Indeed, the State has amended its bond release requirements that apply 
only to remining operations at CSR 38-2-24.4, and that amendment 
directly relates to this proviso. See Finding 35, below for our finding 
on the amendment to CSR 38-2-24.4. We find that, as amended, and for 
the reasons further explained in Finding 35, below, the proviso at W. 
Va. Code 22-3-23(c)(1)(C) as quoted above is not inconsistent with 
SMCRA section 519(c)(3) and can be approved.
    3. As described in Committee Substitute for House Bill 2881, 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.'' This amendment is intended to satisfy the required 
program amendment codified at 30 CFR 948.16(qqqq). 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.

    For the same reasons discussed directly above at Finding 2, we find 
that the amended proviso at W. Va. Code 22-3-23(c)(2)(C) is not 
inconsistent with SMCRA section 519(c)(3) and can be approved. 
Furthermore, we also find that this amendment satisfies the required 
program amendment codified at 30 CFR 948.16(qqqq), which can be 
removed.
    W. Va. Code 22-3-23(c)(2)(C) is also amended by deleting the 
reference to subdivision 3 and continuing to require compliance with 
the bond release scheduling requirements of subdivisions 1 and 2 of 
this subsection. This change corrects a typographical error, in that

[[Page 40159]]

there is no subdivision 3 at subsection 22-3-23(c). We find, therefore, 
that this amendment does not render the provision less stringent than 
SMCRA nor less effective than the Federal regulations and can be 
approved.
    4. As described in Committee Substitute for House Bill 2881, W. Va. 
Code 22B-1-7, concerning appeals to boards, is amended by changing the 
term ``director'' to ``secretary'' in several locations. We find that 
these amendments accurately reflect the current organization of the 
WVDEP and do not render the West Virginia program less stringent than 
SMCRA nor less effective than the Federal regulations and can be 
approved.
    5. As described in House Bill 2882, 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 official action for an order issued pursuant to 
W. Va. Code 22-3. This amendment is intended to satisfy the required 
program amendment codified at 30 CFR 948.16(nnn), which provides that 
West Virginia must 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 West 
Virginia Code. As discussed in the Federal Register on March 4, 2003, 
we reinstated this required amendment in order to comply with U.S. 
District Court Judge Haden's ruling of January 9, 2003 (68 FR 10178).
    We find that as amended, section 22B-1-7(d) satisfies the required 
program amendment codified at 30 CFR 948.16(nnn) that unjust hardship 
shall not be grounds for granting a stay or suspension of an order, 
permit or official action for an order issued pursuant to W. Va. Code 
22-3 and can be approved. Therefore, the required amendment at 30 CFR 
948.16(nnn) can be removed.
    6. As described in House Bill 2882, W. Va. Code 22B-1-7(h), 
concerning appeals to boards, is amended by deleting the reference to 
article ``three'' in regard to appeals to the environmental quality 
board. This amendment is intended to satisfy the required program 
amendment codified at 30 CFR 948.16(ooo), which provides that West 
Virginia must revise Section 22B-1-7(h) by removing reference to 
Article 3, Chapter 22, of the West Virginia Code. As discussed in the 
Federal Register on March 4, 2003, we reinstated this required 
amendment in order to comply with U.S. District Court Judge Haden's 
ruling of January 9, 2003 (68 FR 10178).
    We find that the deletion of the word ``three'' satisfies the 
required program amendment codified at 30 CFR 948.16(ooo) and can be 
approved. Therefore, the required amendment at 30 CFR 948.16(ooo) can 
be removed.
    The following regulatory revisions are described in Committee 
Substitute for House Bill 2603.
    7. CSR 38-2 is amended by updating the name of the U.S. Department 
of Agriculture, Natural Resources Conservation Service (NRCS) (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. We find that these changes accurately reflect 
the current name of the NRCS and can be approved.
    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. There is no direct Federal counterpart to this provision. 
We find, however, that this new provision is consistent with the 
Federal permit application requirement at 30 CFR 780.35 concerning the 
disposal of excess spoil and can be approved.
    9. CSR 38-2-3.22.f.5.A, A.1 and A.2, concerning hydrologic 
information required in a permit application, is amended. This language 
is new and requires that the hydrologic reclamation plan contain a 
description of the measures that will 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. 
We find that this new language is consistent with the Federal 
permitting requirements at 30 CFR 780.21(h), 784.14(g) concerning the 
hydrologic reclamation plan, and 30 CFR 784.20(b)(8), pertaining to 
subsidence control plans, and can be approved.
    10. 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 of the fill and shall include a schedule indicating 
timing and sequence of construction over the life of the fill. There is 
no direct Federal counterpart to the proposed language. We find that 
the proposed language is not inconsistent with the Federal design 
provisions concerning sediment control structures at 30 CFR 780.25(b) 
and 784.16(b), and can be approved.
    11. 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. There is no direct Federal 
counterpart to this proposed language. We find, however, that the 
proposed language is not inconsistent with the Federal requirements at 
30 CFR 816/817.47 concerning discharge structures and can be approved.
    12. CSR 38-2-5.6, storm water runoff, is a new provision 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

[[Page 40160]]

record daily precipitation and report monitoring results on a monthly 
basis and any one (1) year, twenty-four (24) [hour] 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 comlpliance [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 
considered on a case by case basis. Futhermore [Furthermore], 
haulroads, loadouts, and ventilation facilities are excluded from this 
requirement.
    There is no direct Federal counterpart to these provisions 
concerning storm water runoff. However, we find that these provisions 
are not inconsistent with the Federal requirements at 30 CFR 816/817.41 
through 816/817.47, which require that all surface mining and 
reclamation activities be conducted to prevent material damage to the 
hydrologic balance outside the permit area, and can be approved. We 
note that at subsection CSR 38-2-5.6.b, the word ``hour'' is missing in 
the phrase ``one (1) year, twenty-four (24) storm event.'' The phrase 
should read, ``one (1) year, twenty-four (24) hour storm event.'' We 
understand this to be an inadvertent omission that will be corrected at 
a future date.
    13. CSR 38-2-8.2.e, concerning fish and wildlife considerations, is 
amended by adding language to provide that in planning and constructing 
a windrow, the windrow shall not be placed in such manner or location 
to block natural drainways. We approved CSR 38-2-8.2.e on February 9, 
1999 (64 FR 6201, 6209-6210). The proposed amendment to this provision 
is intended to make it clear that, so as not to impound water, timber 
used to create a windrow must not be placed in a manner or location 
that would block natural drainways. There is no direct Federal 
counterpart to this proposed language. However, we find that the 
proposed language does not render this provision inconsistent with 
SMCRA at section 515(d)(1) or less effective than the Federal 
regulations at 30 CFR 816/817.107(b) and can be approved. We note that 
this amended provision contains an inadvertent grammatical error. The 
amended sentence provides as follows: ``In planning and constructing 
the windrow, care shall be taken not to impound water or and shall not 
be placed in such manner or location to block natural drainways.'' We 
understand the amended sentence to mean that in planning and 
constructing a windrow, care shall be taken so that the windrow not 
impound water or be placed in such manner or location to block natural 
drainways. Our approval of this provision is based upon our 
understanding that the inadvertent grammatical error will be corrected 
at a future date.
    14. 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 revegetation plans for those areas to be 
reforested must include a map, a planting schedule and stocking rates. 
The intent of this provision is to encourage tree planting and 
reforestation where traditionally grasslands might be the revegetation 
of choice. There is no direct Federal counterpart to this proposed 
language. However, we find that the proposed language is not 
inconsistent with the Federal requirements concerning revegetation at 
30 CFR 816/817.111(a) and can be approved.
    15. 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 technical 
handbook. This deletion does not render the provision less effective 
than the Federal revegetation requirements at 30 CFR 816/817.116(a), 
because the State's statistically valid sampling techniques for 
measuring ground cover and productivity are no longer contained in the 
Handbook. The WVDEP submitted a policy entitled ``Productivity and 
Ground Cover Success Standards'' that we approved in the Federal 
Register on May 1, 2002 (67 FR 21904, 21906-21907). The State's 
statistically valid sampling techniques for measuring ground cover and 
productivity are set forth in the May 1, 2002, policy. Therefore, we 
find that the deletion of the words ``from the Handbook'' does not 
render the West Virginia program less effective than the Federal 
requirements and can be approved.
    16. 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 technical handbook. The deletion 
of the phrase ``in the Handbook'' and its replacement by the phrase 
``by the Secretary'' does

[[Page 40161]]

not render the provision less effective than the Federal revegetation 
standards at 30 CFR 816/817.116(a), because the Secretary of WVDEP will 
set the productivity success standards for the State. The WVDEP 
submitted a policy establishing such success standards that we approved 
in the Federal Register on May 1, 2002 (67 FR 21904, 21906-21907). The 
State's productivity success standards for hayland, pastureland, 
rangeland and cropland are set forth in that policy. Therefore, we find 
that the proposed amendments do not render the West Virginia program 
less effective than the Federal requirements and can be approved.
    17. CSR 38-2-14.5.h, concerning hydrologic balance, is amended by 
adding a proviso which provides 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. This amendment is intended to satisfy the required 
program amendment codified at 30 CFR 948.16(sss). As discussed in the 
Federal Register dated March 4, 2003, we reinstated this required 
amendment in order to comply with U.S. District Court Judge Haden's 
ruling of January 9, 2003 (68 FR 10178).
    The required program amendment codified at 30 CFR 948.16(sss) 
provides that the West Virginia program must be amended 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, which provides as follows:

    (b) If 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, 
replacement requirements may be satisfied by demonstrating a 
suitable alternative water source is available and could feasibly be 
developed. If the latter approach is selected, written concurrence 
must be obtained from the water supply owner.

    We find that the proposed language provides a counterpart to the 
Federal requirement that limits waivers of water supply replacement to 
only those cases where the affected water supply is not needed for the 
current or proposed postmining land use. Therefore, the proposed 
amendment can be approved. In addition, we find that it is reasonable 
to presume that a waiver authorized under W. Va. Code 22-3-24(b) and 
CSR 38-2-14.5.h would be in writing. However, we recommend that the 
State amend subsection CSR 38-2-14.5.h to clarify that a waiver of 
water supply replacement be in writing. Finally, the CSR 38-2-14.5.h 
continues to lack a requirement that a waiver can only be approved 
where it is demonstrated that a suitable alternative water source is 
available and could feasibly be developed. Therefore, we will revise 
the required program amendment at 30 CFR 948.16(sss) to require that 
CSR 38-2-14.5.h be further amended to provide a counterpart to the 
Federal requirement in the definition of ``Replacement of water 
supply,'' paragraph (b), at 30 CFR 701.5, which provides that 
replacement requirements may be satisfied by demonstrating that a 
suitable alternative water source is available and could feasibly be 
developed.
    18. CSR 38-2-14.14.g.1 is amended by adding language to provide 
that durable rock 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. There is no 
direct counterpart to the proposed language in the Federal regulations 
concerning the design of durable rock fills. However, we find that the 
proposed requirements do not render CSR 38-2-14.14.g.1 less effective 
than the Federal regulations regarding durable rock fills at 30 CFR 
816/817.73 and can be approved. We note the inadvertent typographical 
error (``tow'' should be ``toe'') and understand that it will be 
corrected at a future date.
    19. CSR 38-2-14.14.g.2 is new and adds design specifications and 
requirements for single lift fills with an erosion protection zone. 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 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 regarded [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 that [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.
    The proposed provisions are more detailed than, but are not 
inconsistent

[[Page 40162]]

with, the Federal requirements for durable rock fills at 30 CFR 816/
817.73. Neither SMCRA nor the Federal regulations prohibit the 
construction of single-lift durable rock fills. However, the 
Environmental Protection Agency (EPA) commented on the proposed 
amendments and provided a conditional approval of CSR 38-2-
14.14.g.2.A.6 concerning the removal of erosion protection zones 
following mining. See Section IV, Summary and Disposition of Comments, 
below, for a complete discussion of EPA's comments.
    The EPA stated that it is concerned that erosion protection zones 
(EPZs) may result in permanent stream fills after completion of mining. 
According to CSR 38-2-14.14.g.2.A.1, the EPA stated, a 250-foot long 
EPZ would be required for a 500-foot high valley fill, which, EPA 
stated, is not unusual in southern West Virginia. Although Section 
14.14.g.2.A.6 requires EPZ removal, regrading, and revegetating after 
mining, EPA stated, it does not appear to include removal of the stream 
fill associated with the EPZ or reconstruction of the stream channel.
    The EPA stated that it concurs with the proposed revisions under 
the condition that a requirement be included to remove stream fills 
associated with EPZs after mining and reconstruct the stream channels.
    Therefore, and considering EPA's conditional concurrence as noted 
above, we find that these new design specifications and requirements 
for single-lift fills with an erosion protection zone do not render the 
West Virginia program less effective than the Federal durable rock fill 
requirements at 30 CFR 816/817.71 and 816/817.73 and can be approved 
with the following exceptions.
    At CSR 38-2-14.14.g.2.A.6, we are not approving the words 
``[u]nless otherwise approved in the reclamation plan'' because leaving 
an EPZ in place would be inconsistent with EPA's conditional 
concurrence to remove stream fills associated with EPZs and to 
reconstruct the stream channels after mining. We are approving CSR 38-
2-14.14.g.2.A.6 only to the extent that following mining, all stream 
fills associated with EPZs will be removed and the stream channels 
shall be reconstructed in the manner described at CSR 38-2-5.3 and 
14.4.a concerning stream diversions.
    20. CSR 38-2-14.14.g.3 is new and adds design specifications and 
requirements at 14.14.g.3 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 [the West Virginia Surface Coal Mining and 
Reclamation 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.
    The proposed provisions are more detailed than, but are not 
inconsistent with, the Federal requirements for durable rock fills at 
30 CFR 816/817.73. Therefore, we find that these new design 
specifications and requirements for durable rock fills designed to be 
reclaimed from the toe upward do not render the West Virginia program 
less effective than the Federal durable rock fill requirements at 30 
CFR 816/817.71 and 816/817.73 and can be approved. In addition, we are 
approving these requirements with the understanding that if roads are 
not used to transport the excess material as provided in subsection 
14.14.g.3.A, the alternative means of transportation will ensure that 
the excess spoil will be transported to the toe of the fill and placed 
in a controlled manner as provided by CSR 38-2-14.14.a.2 and 30 CFR 
816/817.71(e)(2).
    21. 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. There is no 
direct Federal counterpart to the proposed language. We find, however, 
that the proposed language is not inconsistent with the Federal 
regulations at 30 CFR 816/817.100 concerning contemporaneous 
reclamation and can be approved.
    22. 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. We find that the amendment to this provision does not render 
the West Virginia rule less effective than the Federal regulations 
concerning contemporaneous reclamation at 30 CFR 816/817.100 and bond 
release at 30 CFR 800.40(c) can be approved.
    23. 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. There are no 
counterpart Federal requirements to the new West Virginia storm water 
runoff provisions at CSR 38-2-5.6. We find, however, that the amendment 
to this provision does not render the West Virginia rule less effective 
than the Federal regulations concerning contemporaneous reclamation at 
30 CFR 816/817.100 and can be approved.
    24. CSR 38-2-17.1, concerning Small Operator Assistance Program 
(SOAP), 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. This new 
language provides the West Virginia program with a counterpart to the 
Federal requirement at 30 CFR 795.11(b) and can be approved. We note 
that the State must now actually establish a formula for allocating 
SOAP funds.
    25. 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

[[Page 40163]]

to the Secretary in writing. The Secretary must conduct the inspection 
of the violation within the first 15 days after the notice or order was 
served. We find that, as amended, the State's civil penalty assessment 
procedures are the same as or similar to those contained in section 518 
of SMCRA, are consistent with the Federal procedures concerning civil 
penalty assessment at 30 CFR 845.17, and can be approved.
    26. 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.'' The 
two sentences that were deleted from this provision pertain to 
procedures for an informal conference, and were relocated to CSR 38-2-
20.6.e concerning informal conference. We find that the amendments to 
CSR 38-2-20.6.c do not render the provision inconsistent with the 
Federal provisions concerning procedures for assessment of civil 
penalties at 30 CFR 845.17(b) and (c), and 845.18(c) and can be 
approved.
    27. 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.
    We find that the new language is similar to and therefore 
consistent with the Federal provision at 30 CFR 845.18(a) concerning 
procedures for assessment conference even though it provides a shorter 
period in which to request an informal conference. We also find that 
requiring the operator to forward the amount of the proposed penalty 
assessment to the Secretary of the WVDEP prior to an assessment 
conference is not inconsistent with the Federal provision at 30 CFR 
845.19. The Federal rule at 30 CFR 845.19 concerns request for a 
hearing, and provides that the person charged with the violation may 
contest the proposed penalty reassessment by submitting a petition and 
an amount equal to the proposed penalty for placement in an escrow 
account. Therefore, we find that the proposed language can be approved.
    28. 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. This language was relocated from the approved program at CSR 38-
2-20.6.c, and appropriately placed in this subsection concerning 
informal conference. We find that this amendment is consistent with the 
Federal provisions concerning procedures for assessment conference at 
30 CFR 845.18(c) and can be approved.
    29. 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. We find that this provision is substantively 
identical to the Federal regulations at 30 CFR 845.18(b)(4) concerning 
procedures for assessment conference and can be approved.
    30. 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 amended provision 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. We find that this provision as amended is not 
inconsistent with the Federal provision at 30 CFR 845.19(b), which 
provides that funds placed in escrow shall he held in escrow pending 
completion of the administrative and judicial review process. 
Therefore, the amendments to CSR 38-2-20.6.j can be approved.
    31. CSR 38-2-22.4.g.3.A concerns the design of Class C-type coal 
refuse impoundments without discharge structures that must be capable 
of storing a minimum of two six hour duration probable maximum storms. 
This provision 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 also 
states that 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 two PMP (Probable 
Maximum Precipitation) volume requirement, the dewatering system shall 
be installed when the containment volume is reduced to two PMPs.
    The proposed language that requires a system to be designed to 
dewater the impoundment of the probable maximum storm in 10 days by 
pumping or by other means is consistent with the State's performance 
standard for coal refuse impoundments provision at CSR 38-2-22.5.j.5, 
which provides that impounding structures constructed of or impounding 
coal mine refuse shall be designed so that at least 90 percent of the 
water stored during the design precipitation event can be removed 
within a 10-day period. The substantively identical Federal counterpart 
to CSR 38-2-22.5.j.5 is contained in 30 CFR 816/817.84(e). We find that 
the proposed design standard is no less effective than the counterpart 
Federal regulations at 30 CFR 816/817.49(c)(2)(i) and 816/817.84(e) and 
can be approved.
    The proposed new language also provides that 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. We are currently 
reviewing the State's Coal Related Dam Safety Rule at CSR 38-4 under a 
separate program amendment submitted by the State. However, since CSR 
38-4-25.14 is relevant to the proposed amendment at CSR 38-2-
22.4.g.3.A, we will address the State's Coal Related Dam Safety Rule at 
CSR 38-4-25.14 here.
    Proposed CSR 38-4-25.14 provides as follows:

    25.14. 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 [Assessment of 
Hazards and Consequences of Failure; see CSR 38-4-3.4.c]. The 
mechanical storm dewatering system shall be installed as designed 
and maintained properly with the system being tested monthly.

    Proposed CSR 38-4-25.14 provides, in effect, a counterpart to the 
Federal regulations at 30 CFR 816/817.84(f),

[[Page 40164]]

concerning the performance standard for impounding structures 
constructed of or impounding coal mine waste. The regulation at 30 CFR 
816/817.84(f) provides that for an impounding structure constructed of 
or impounding coal mine waste, at least 90 percent of the water stored 
during the design precipitation event shall be removed within the 10-
day period following the design precipitation event. We find that the 
proposed language at CSR 38-2-22.4.g.3.A, which requires that the Coal 
Related Dam Safety Rule at CSR 38-4-25.14 be met, together with the 
proposed regulation at CSR 38-4-25.14 are no less effective than the 
counterpart Federal regulations at 30 CFR 816/817.84(f) and can be 
approved.
    The proposed new language also requires that 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. While the language does not specifically state that 
the ``dewatering system'' referred to is the same system as described 
at CSR 38-2-22.4.g.3.A, we interpret this provision to mean the same. 
That is, the system shall be designed to dewater the impoundment of the 
probable maximum storm in 10 days by pumping or other means, and the 
requirements of the Coal Related Dam Safety Rule at CSR 38-4-25.14, 
concerning removal of storm water from impoundments shall also be met. 
There is no Federal counterpart to this provision. We find, however, 
that the provision is not unreasonable, and that the proposed design 
standard is no less effective than the counterpart Federal regulations 
at 30 CFR 816/817.49(c)(2)(i) and 816/817.84(e) and can be approved.
    32. 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, 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. We find that the provision is consistent with the Federal 
regulation at 30 CFR 816/817.84(c) which provides that spillways and 
outlet works of coal mine waste impounding structures shall be designed 
to provide adequate protection against erosion and corrosion, and that 
inlets shall be protected against blockage. Therefore, we are approving 
the provision.
    33. CSR 38-2-24.2.a, concerning the revegetation of remining 
operations, 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 ground cover success and productivity shall be made using 
sampling techniques described by the Secretary. The WVDEP submitted a 
policy identifying statistically valid sampling techniques for 
measuring ground cover and productivity success that we approved on May 
1, 2002 (67 FR 21904, 21906-21907). Therefore, we find that the 
deletion of the words ``from the Handbook'' does not render the West 
Virginia program less effective than the Federal regulations and can be 
approved.
    34. CSR 38-2-24.3 concerns water quality exemptions for coal 
remining operations. This provision 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 part 434 as amended.'' The 
amended provision 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.
    The existing language of this provision incorporates the added 
flexibility provided by the 1987 revision to the Clean Water Act that 
added section 301(p) (33 U.S.C. 1311(p)), often called the Rahall 
Amendment, that provides incentives for remining abandoned mine lands 
that predate the passage of SMCRA. The State's proposed language is 
intended to incorporate the added flexibility provided by amendments to 
the Federal regulations at 40 CFR 434.70-434.75, which added effluent 
limitations and performance standards to a new Coal Remining 
Subcategory (Subpart G) under the existing regulations for the Coal 
Mining Point Source Category (January 23, 2002; 67 FR 3370). New 
Subpart G applies to coal remining operations, which are defined at 40 
CFR 434.70(a) as coal mining operations at sites on which coal mining 
was previously conducted and where the sites have been abandoned or the 
performance bonds have been forfeited. Since the additional language 
incorporates water quality exemptions authorized under the Clean Water 
Act, we find that the addition of the proposed language does not render 
the West Virginia program less stringent than SMCRA nor less effective 
than the Federal regulations and can be approved.
    35. CSR 38-2-24.4 concerns bond release requirements for remining 
operations. This provision 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. The proposed new 
language is intended to establish effluent limitations guidelines and 
new source performance standards for coal remining operations that are 
authorized under section 301(p) of the Clean Water Act, and at subpart 
G of the Federal regulations at 40 CFR part 434 (see Finding 34 above 
for more information). For the same reasons as those set forth in 
Finding 34, above, we find that the addition of the proposed language 
does not render the West Virginia program less stringent than SMCRA nor 
less effective than the Federal regulations and can be approved.

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received in response to our requests for 
comments from the public on the proposed amendments.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on April 
2 and 4, 2003, we requested comments on the amendments from various 
Federal agencies with an actual or potential interest in the West 
Virginia program (Administrative Record Number WV-1356 and 1357). On 
June 4, 2003, the U.S. Department of Labor, Mine Safety and Health 
Administration (MSHA),

[[Page 40165]]

responded (Administrative Record Number WV-1362) and stated that it has 
no comments on the changes in House Bills 2881 and 2882. MSHA stated 
that House Bill 2603 lacks the word ``hour'' on page 10, line one, at 
CSR 38-2-5.6.b, concerning storm water runoff. MSHA stated that in 
referring to the storm event, the statement ``one (1) year, twenty-four 
(24) storm event'' should read ``one (1) year, twenty-four hour storm 
event''. We acknowledged that the word ``hour'' is missing in Finding 
12, above, and approved the provision with the understanding that the 
inadvertent omission would be corrected at a future date. MSHA had the 
following comments concerning the amendments to the regulations at CSR 
38-2.
    Section 3.7.d, concerning disposal of excess spoil. MSHA stated 
that is has no counterparts to these regulations that require a survey 
of the watershed to identify all man-made structures and residents and 
to determine the potential storm runoff impacts, and that require that 
the accuracy of the survey be verified by field work. As noted in 
Finding 8, above, we determined that there are no Federal counterparts 
to the provision, but that it is consistent with the Federal permit 
application requirement at 30 CFR 780.35 concerning the disposal of 
excess spoil and can be approved.
    MSHA identified the proposed amendments at CSR 38-2-5.4.b.4, 5.6, 
22.4.g.3.a, and 22.4.i.g [i], but did not provide any comments on those 
changes.
    MSHA also provided comments on the changes to CSR 38-4, Coal 
Related Dam Safety Rule. As we noted above in Section III, in order to 
expedite our review of the State's proposed provisions that concern the 
recommendations of West Virginia's 2002 Flood Study, we separated all 
except one of the amendments relating to CSR 38-4, Coal Related Dam 
Safety Rule from this amendment. We will address the proposed 
amendments to CSR 38-4 and MSHA's comments relating to the proposed 
amendments to CSR 38-4, in a separate Federal Register notice at a 
later date.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from 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 April 1, 2003, we asked for concurrence and 
comments on the amendment (Administrative Record Number WV-1355).
    The EPA responded by letter dated June 13, 2003, (Administrative 
Record Number WV-1363).
    The EPA stated that it reviewed the proposed revisions and has 
concerns about the requirement of erosion protection zones (EPZs) 
associated with single-lift valley fills at CSR 38-2-14.14.g.1 (Durable 
Rock Fills).
    EPZ Purpose--The EPA stated that it is EPA's understanding that an 
EPZ is a buffer zone between the toe of a single lift valley fill and 
its downstream sedimentation pond. It consists of a wide and low fill, 
revegetated to dissipate runoff energy from the valley fill face and 
prevent pond overloading during severe storm periods. The EPA stated 
that a single lift fill is particularly subject to erosion, since it is 
constructed in a downstream direction toward the pond with no 
reclamation or revegetation of the fill face until completion of 
mining.
    EPA's Concern--The EPA stated that it is concerned that EPZs may 
result in permanent stream fills after completion of mining. According 
to CSR 38-2-14.14.g.2.A.1, the EPA stated, a 250-foot long EPZ would be 
required for a 500-foot high valley fill, which, EPA stated, is not 
unusual in southern West Virginia. Although Section 14.14.g.2.A.6 
requires EPZ removal, regrading, and revegetating after mining, EPA 
stated, it does not appear to include the removal of the stream fill 
associated with the EPZ or reconstruction of the stream channel. An 
alternative valley fill design, which appears more environmentally 
acceptable, EPA stated, is also indicated in Section 14.14.g.1 and 
further described in Section 14.14.g.3. The EPA stated that this 
involves starting valley fill construction from the toe and proceeding 
upstream in multiple lifts (layers) of 100 feet or less in thickness. 
The EPA stated that the face of each lift would be reclaimed and 
revegetated before starting the next lift. The toe of the first lift 
would be at the sedimentation pond, the EPA stated, and an EPZ would 
not be necessary due to better erosion control features.
    Conditional Concurrence--The EPA stated that it concurs with the 
proposed revisions under the condition that a requirement be included 
to remove stream fills associated with EPZs after mining and 
reconstruct the stream channels. The EPA stated that it should also be 
noted that stream filling during EPZ construction requires 
authorization under Section 404 of the Clean Water Act, administered by 
the U.S. Army Corps of Engineers. Considering the high erosion 
potential of single-lift valley fills, the EPA stated, they (EPA) 
recommend that the single lift method be replaced by the more 
environmentally favorable approach of starting at the toe and 
proceeding upwards in multiple lifts. The EPA stated that it will 
likely make this recommendation for any proposed single lift fill 
coming before it for Section 404 review.
    In response to EPA's conditional concurrence, and as we noted above 
in Finding 19, at CSR 38-2-14.14.g.2.A.6, we are not approving the 
words ``[u]nless otherwise approved in the reclamation plan'' because 
leaving an EPZ in place would be inconsistent with EPA's conditional 
concurrence to remove stream fills associated with EPZs and to 
reconstruct the stream channels after mining. In addition, we are 
approving CSR 38-2-14.14.g.2.A.6 only to the extent that following 
mining, all stream fills associated with EPZs will be removed and the 
stream channels shall be reconstructed.
    The EPA also provided the following comments in support of specific 
amendments:
    1. CSR 38-2-5.6.a.3 (Storm Water Runoff)--The EPA stated that this 
section requires that mining cause no net increase in peak runoff as 
compared to pre-mining conditions. The EPA stated that this is an 
important requirement for preventing mining operations from causing or 
increasing local flooding conditions. We concur with EPA's comment.
    2. CSR 38-2-9.1.a (Revegetation)--The EPA stated that this section 
requires maximization of reforestation opportunities during mining 
reclamation. The EPA stated that it is a very beneficial approach to 
return land to its original forested state, unless there are other 
specific post-mining land uses. We concur with EPA's comment.
    3. CSR 38-2-24.3 and 24.4 (Remining)--The EPA stated that these 
sections reference EPA's remining effluent guideline regulations 
promulgated in 2002 and listed in 40 CFR part 434, as amended. The EPA 
stated that they implement the Clean Water Act statute regarding 
remining, section 301(p), passed in 1987. The EPA stated that it 
considers remining to be an important tool for improving water quality 
and reclaiming scarred land associated with abandoned mines. The EPA 
stated that it supports providing of incentives to companies for 
remining salvageable coal from abandoned mines while making these 
environmental improvements with no cost to the public. The EPA stated 
that it is planning on holding workshops on implementation of the 2002 
remining

[[Page 40166]]

regulations during the summer of 2003. We concur with EPA's comments 
concerning CSR 38-2-24.3 and 24.4.

V. OSM's Decision

    Based on the above findings, and except as noted below, we approve 
the amendment sent to us by West Virginia on March 18, 2003. In 
addition, the following required program amendments are satisfied and 
can be removed at 30 CFR 948.16(nnn), (ooo), and (qqqq).
    The amendments to CSR 38-2-14.5.h (Finding 17) partially satisfy 
the required program amendment at 30 CFR 948.16(sss). Therefore, we 
will revise the required program amendment at 30 CFR 948.16(sss) to 
require that, if the water supply is not needed for the existing or 
postmining land use, such waiver can only be approved where it is 
demonstrated that a suitable alternative water source is available and 
could feasibly be developed.
    At CSR 38-2-14.14.g.2.A.6 (Finding 19), we are not approving the 
words ``[u]nless otherwise approved in the reclamation plan'' because 
leaving an EPZ in place would be inconsistent with EPA's conditional 
concurrence to remove stream fills associated with EPZs and to 
reconstruct the stream channels after mining. We are approving CSR 38-
2-14.14.g.2.A.6 only to the extent that following mining, all stream 
fills associated with EPZs will be removed and the stream channels 
shall be reconstructed.
    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 upon the analysis performed under various laws and executive 
orders 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 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. 
This final rule applies only to the West Virginia program and therefore 
does not affect tribal programs.

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

[[Page 40167]]

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 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: June 20, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR Part 948 is amended as 
set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for Part 948 continues to read as follows:

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

0
2. Section 948.12 is amended by adding new paragraph (g) to read as 
follows:


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

* * * * *
    (g) We are not approving the following provision in the proposed 
program amendment submitted on March 18, 2003: At CSR 38-2-
14.14.g.2.A.6, the words ``Unless otherwise approved in the reclamation 
plan.''
0
3. 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:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
 Original amendment submission     Date of publication of final
             dates                             rule                            Citation/description
----------------------------------------------------------------------------------------------------------------
                                                                  W. Va. Code 22-3-23(a)-(h), 23(c)(1)(C),
                                                                   (c)(2)(C); 22B-1-7, 7(d), 7(h).
 
                                                 * * * * * * **
March 18, 2003.................  July 7, 2003...................  CSR 38-2-3.2.c, 3.7.d, 3.20 3.22.f.5.A, A.1,
                                                                   and A.2, 5.4.b.4, 5.4.b.11, 5.6, 8.2.e,
                                                                   9.1.a, 9.3.d, 9.3.f, 10.2.a.4, 10.3.a.1,
                                                                   10.4.c.1, 10.6.b.2, b.7.A, b.7.B, b.8,
                                                                   14.5.h, 14.14.g.1, g.2 (partial approval;
                                                                   also, approved only to the extent that after
                                                                   removal of erosion protection zones, the
                                                                   stream channel will be restored), and g.3,
                                                                   14.15.a.2, c, and g, 17.1, 20.6.a, c, and d,
                                                                   e, f, and j, 22.4.g.3.A and i.6, 24.2.a,
                                                                   24.3, and 24.4. CSR 38-4-25.14.
----------------------------------------------------------------------------------------------------------------

948.16  [Amended]

0
4. Section 948.16 is amended by removing and reserving paragraphs 
(nnn), (ooo) and (qqqq), and revising paragraph (sss) to read as 
follows:
* * * * *
    (sss) By September 5, 2003, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a time table for adoption to amend CSR 38-2-14.5.h, or 
otherwise amend the West Virginia program, to require that, if the 
water supply is not needed for the existing or postmining land use, 
such waiver can only be approved where it is demonstrated that a 
suitable alternative water source is available and could feasibly be 
developed.
* * * * *
[FR Doc. 03-17080 Filed 7-3-03; 8:45 am]
BILLING CODE 4310-05-P