[Federal Register Volume 68, Number 230 (Monday, December 1, 2003)]
[Rules and Regulations]
[Pages 67035-67045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29757]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-091-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 announcing our approval of an 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 amendment we are approving consists of changes 
to the West Virginia Surface Mining Reclamation Rules as contained in 
House Bill 2663. The amendment is intended to improve the operational 
efficiency of the West Virginia program.

EFFECTIVE DATE: December 1, 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: [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 SMCRA permits a State to assume primacy for the 
regulation of surface mining and reclamation operations on non-Federal 
and non-Indian lands within its borders by demonstrating that its State 
program includes, among other things, ``a State law which provides for 
the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S. C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the West Virginia program on January 21, 1981. You can find background 
information on the West Virginia program, including the Secretary's 
findings, the disposition of comments, and conditions of approval 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. Submission of the Amendment

    By letter dated May 2, 2001 (Administrative Record Number WV-1209), 
the West Virginia Department of Environmental Protection (WVDEP) 
submitted a proposed amendment to the West Virginia program. The 
program amendment consists of changes to the West Virginia Surface 
Mining Reclamation Rules at Code of State Regulations (CSR) 38-2, as 
amended by House Bill 2663.
    We announced receipt of the proposed amendment in the May 24, 2001, 
Federal Register (66 FR 28682). 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 proposed amendment (Administrative 
Record Number WV-1213). The public comment period closed on June 25, 
2001. At the request of two commenters, we extended the comment period 
through July 13, 2003 (Administrative Record Numbers WV-1222 and WV-
1223). We received comments from four environmental organizations and 
two Federal agencies.
    We did not request comments on the proposed changes to CSR 38-2-
3.14.b.12, concerning the partial removal of coal processing refuse 
piles, because that activity pertains to the removal of coal refuse 
that does not meet the definition of coal. In 1990, we stated that 
``the removal, transport and use (without onsite reprocessing) of coal 
mine refuse which does not meet the definition of ``coal'' set forth in 
30 CFR 700.5; i.e., ASTM Standard D 388-77, is not subject to 
regulation [under SMCRA].'' 55 FR 21314; May 23, 1990. Therefore, it is 
not subject to regulation under SMCRA, and will not be considered here. 
We note that the removal of abandoned coal refuse piles was the subject 
of a later amendment that was addressed in a final rule notice 
published in the May 1, 2002, Federal Register (67 FR 21920) 
(Administrative Record Number WV-1300).
    In the proposed rule notice published on May 24, 2001, we 
incorrectly stated that the definition of ``cumulative impact area'' at 
CSR 38-2-2.39 is new and subject to public comment. The definition of 
``cumulative impact area'' is not new, and is already part of the 
approved West Virginia program.
    On July 1, 2003, WVDEP sent us a letter containing clarification 
concerning the proposed deletion of the definition of ``cumulative 
impact,'' the addition of a definition of ``material damage to the 
hydrologic balance outside the permit areas,'' and the addition of a 
provision qualifying certain coal removal during reclamation as 
government-financed construction that is exempt from a permit 
(Administrative Record Number WV-1365). The State's July 1, 2003, 
letter was in response to questions that we posed in a list dated 
February 26, 2003 (Administrative Record Number WV-1365). We announced 
receipt of the State's clarification letter in the Federal Register on 
July 31, 2003 (68 FR 44910). In the same document, we reopened the 
comment period to provide the public an opportunity to review and 
comment on the State's letter and whether the amendment, as further 
clarified in the State's letter dated July 1, 2003, satisfies the 
applicable program approval criteria of 30 CFR 732.15 (Administrative 
Record Number WV-1369). The public comment period closed on August 15, 
2003. At the request of a Federal agency, we extended the public 
comment period through August 29, 2003 (Administrative Record Number 
WV-1371). We received comments from three environmental organizations 
and two Federal agencies.
    Several of the proposed changes to the West Virginia regulations 
that were submitted as part of this amendment were intended to address 
required program amendments codified in the Federal regulations at 30 
CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), (hhhh), (jjjj), (nnnn) 
and (pppp). We expedited our review of the specific amendments relating 
to those required amendments and published our decisions on them in the 
Federal Register on May 1, 2002 (67 FR 21904). Specifically, our 
findings on the following provisions that were submitted with this 
amendment and were addressed in our May 1, 2002, decision include: CSR 
38-2-14.8.a.6 (948.16(xx)); CSR 38-2-12.2.e (948.16(qqq)); CSR 38-2-
3.12.a.1 (948.16(zzz)); CSR 38-2-16.2.c.4 (948.16(ffff)); CSR 38-2-
16.2.c.4 (948.16(gggg)); CSR 38-2-16.2.c.4

[[Page 67036]]

(948.16(hhhh)); CSR 38-2-12.4.e (948.16(jjjj)); CSR 38-2-3.14.a 
(948.16(nnnn)); and CSR 38-2-24.4 (948.16(pppp)). Our findings on the 
remaining amendments submitted to us on May 2, 2001, are presented 
below.

III. OSM's Findings

    Following are the findings we made pursuant to SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed 
amendments to the West Virginia program. Any revisions that we do not 
specifically discuss below concern nonsubstantive wording or editorial 
changes and are approved here without discussion.

1. CSR 38-2-2.39 Definition of ``Cumulative Impact''

    The definition of ``cumulative impact'' at CSR 38-2-2.39 is being 
deleted. The deleted definition provided as follows:

    2.39. Cumulative Impact means the hydrologic impact that results 
from the cumulation of flows from all coal mining sites to common 
channels or aquifers in a cumulative impact area. Individual mines 
within a given cumulative impact area may be in full compliance with 
effluent standards and all other regulatory requirements, but as a 
result of the co-mingling of their off-site flows, there is a 
cumulative impact. The Act does not prohibit cumulative impacts but 
does emphasize that they be minimized. When the magnitude of 
cumulative impact exceeds threshold limits or ranges as 
predetermined by the Division, they constitute material damage.

    There is no Federal counterpart to the definition of ``cumulative 
impact'' at CSR 38-2-2.39 that the State proposes to delete. Under 
SMCRA at section 505, the States have the discretion to add laws or 
regulations to their programs as long as those laws or regulations are 
not inconsistent with SMCRA. Conversely, the States also have the 
discretion to remove laws or regulations from their approved programs 
so long as the removal does not render the program inconsistent with 
SMCRA. Therefore, the criterion we must apply in deciding whether to 
approve the proposed deletion is whether or not the deletion would 
render the West Virginia program less stringent than SMCRA or less 
effective than the Federal regulations. That criterion is different 
than the question of whether the deletion of the definition of 
``cumulative impact'' may alter the existing CHIA process in West 
Virginia in a way that is adverse to some commenters' interests as they 
have asserted (see Section IV, Summary and Disposition of Comments). 
Rather, we are rendering a decision only on the question of whether the 
deletion of the definition of ``cumulative impact'' renders the West 
Virginia program less stringent than SMCRA or less effective than the 
Federal regulations.
    As the WVDEP noted in its July 1, 2003, letter to OSM, the West 
Virginia program contains a counterpart to the Federal definition of 
``cumulative impact area.'' That definition was determined earlier to 
be consistent with the counterpart Federal definition of the term 
``cumulative impact area'' at 30 CFR 701.5. The West Virginia program 
also has approved counterparts to all of the Federal CHIA-related 
requirements, and those provisions are not at issue here. However, 
there is no Federal requirement that State programs contain a 
definition of ``cumulative impact.'' For these reasons, we find that 
the deletion of the definition of ``cumulative impact'' does not render 
the West Virginia program less stringent than SMCRA nor less effective 
than the Federal regulations and can be approved. We express no further 
opinion on whether or how the deletion of this definition may alter the 
current CHIA process in West Virginia, because such procedural changes 
are within the State's discretion under the existing Federal 
regulations.

2. CSR 38-2-3.22.e Cumulative Hydrologic Impact Assessment (CHIA)

    The CHIA provision at CSR 38-2-3.22.e is being amended by adding 
the following definition of material damage:

    3.22.e. .* * * Material damage to the hydrologic balance outside 
the permit areas means any long term or permanent change in the 
hydrologic balance caused by surface mining operation(s) which has a 
significant adverse impact on the capability of the affected water 
resource(s) to support existing conditions and uses.

    There is no Federal counterpart to the proposed State definition of 
``material damage to the hydrologic balance outside the permit areas.'' 
Nor is there a Federal requirement that States develop a definition of 
material damage. In addition, SMCRA at section 505(b) provides that any 
State statutory or regulatory provision which is in effect or may 
become effective after the enactment of SMCRA and that provides for the 
control and regulation of surface mining and reclamation operations for 
which no provision is contained in SMCRA shall not be construed to be 
inconsistent with SMCRA. In a Federal Register notice dated September 
26, 1983, OSM addressed comments on the Federal CHIA regulations at 30 
CFR 780.21(g) and 784.14(f) (48 FR 43956). OSM concluded that, because 
the gauges for measuring material damage may vary from area to area, 
and even from operation to operation, the criteria for determining 
material damage should be left to the States (48 FR 43956, 43972-
43973).
    It is expected that State and Federal regulatory authorities will 
develop criteria to measure material damage for the purposes of the 
CHIAs. Currently, all 24 State coal regulatory programs and the Federal 
regulatory programs in Tennessee, Washington, and the Federal Indian 
lands program have implemented a CHIA process. All of these programs 
include making decisions on whether or not material damage outside the 
permit area would occur. As such, each has established some basis or 
criteria for making those decisions. Seeking Federal approval of such 
criteria is discretionary, and many States have developed and applied 
such criteria without OSM approval. Only one State (Wyoming), has 
previously codified a definition of material damage and has had that 
definition approved by OSM. We approved Wyoming's definition of 
material damage in the original program approval on November 26, 1980, 
as follows: ``material damage to the hydrologic balance is a 
significant long-term or permanent adverse change to the hydrologic 
regime.'' We note that Wyoming's approved definition includes a long-
term aspect as does the proposed West Virginia definition of material 
damage to the hydrologic balance outside the permit areas.
    While West Virginia has submitted its definition of material damage 
for approval, that action does not alter the fact that it, like any 
other State, has the discretion to develop and implement material 
damage criteria without seeking or awaiting OSM approval of that 
criteria. The WVDEP's July 1, 2003, letter acknowledges that the State 
intends to use a narrative-based use standard in making its CHIAs and 
is asking for OSM to formally sanction that narrative-based standard. 
Furthermore, the WVDEP also stated in its July 1, 2003, letter, that 
the State approach will consider both water quality numerical limits 
and water resources uses designated by the water quality programs in 
making the CHIAs required by the mining program. In essence, the State 
proposes to adopt both a use-based narrative standard and a numeric 
standard for evaluating material damage to the hydrologic balance under 
its CHIA process.
    As mentioned above in Finding 1, the West Virginia program has 
approved counterparts to all the Federal CHIA-related requirements. 
However, there is no Federal requirement that States must develop a 
specific definition of material damage. The proposed definition does 
not on its face negate, supersede, alter, or conflict with any of the 
approved

[[Page 67037]]

State rules related to the CHIA process or their Federal counterparts. 
For these reasons, we find that the proposed State definition of 
material damage does not render the West Virginia program less 
stringent than SMCRA nor less effective than the Federal regulations 
and can be approved.

3. CSR 38-2-3.31 Federal, State, County, Municipal, or Other Local 
Government-Financed Highway or Other Construction Exemption

    By submitting the following changes on May 1, 2002, and March 18, 
2003, the State proposes to amend CSR 38-2-3.31 (Administrative Record 
Numbers WV-1209 and WV-1352).
    In its March 18, 2003, amendment submittal, subsection 3.31.a is 
amended to provide that, ``Funding at less than fifty percent (50%) may 
qualify if the construction is undertaken as an approved government 
reclamation contract.'' We announced receipt of the proposed amendment 
to subsection 3.31.a in a proposed rule that was published in the 
Federal Register on April 14, 2003, (68 FR 17898). Although the rest of 
the submittal has been acted upon, we have not rendered a decision on 
the proposed amendment to subsection 3.31.a.
    Subsection 3.31.c is new, and provides the following: ``Funding 
less than fifty percent (50%) may qualify if the construction is 
undertaken as part of an approved reclamation project in accordance 
with WV Code Sec.  22-3-28.'' This amendment was submitted on May 1, 
2002, and is intended to revise the West Virginia program to add the 
additional flexibility afforded by the revised Federal definition of 
the term ``government-financed construction'' at 30 CFR 707.5. For more 
information concerning the revised Federal definition and the Federal 
Abandoned Mine Land (AML) Enhancement Rule, see the February 12, 1999, 
Federal Register (64 FR 7469).
    In its July 1, 2003, clarification letter to OSM, WVDEP stated that 
the ``change to allow coal removal in conjunction with a reclamation 
project is designed to encourage/result in low cost or no-cost 
reclamation as provided for in the Federal program (see 30 CFR 
707.5).'' The WVDEP asserted that the State rule contains the same 
language as the Federal regulations, except that the State refers to 
the W. Va. Code and the Federal counterpart refers to title IV. Indeed, 
the Federal definition of ``Government-financed construction'' at 30 
CFR 707.5 provides, in part, that funding at less than 50 percent may 
qualify if the construction is undertaken as an approved reclamation 
project under title IV of the Act. That is, the Federal definition of 
``government-financed construction'' limits government funding at less 
than 50 percent to only those construction projects that are undertaken 
as approved abandoned mine land reclamation projects under title IV of 
SMCRA.
    The WVDEP also stated that the W. Va. Code 22-3-28(e) is a 
subsection of W. Va. Code 22-3-28. Subsection (e), the WVDEP stated, is 
the only subsection of W. Va. Code 22-3-28 that mentions government-
financed reclamation. Therefore, the WVDEP asserts, it is obvious that 
subsection (e) is the only applicable subsection to which the proposed 
CSR 38-2-3.31(c) could apply.
    The WVDEP is currently in the process of revising the State AML 
Reclamation Plan to add counterparts to the Federal requirements at 30 
CFR 874.17 which require specific consultations and concurrences with 
the Title V regulatory authority for AML construction projects 
receiving less than 50 percent government financing. In addition, the 
WVDEP intends to submit a revision to the State's AML rules during the 
2004 regular legislative session that will add a counterpart to the 
Federal definition of ``government-financed construction'' at 30 CFR 
707.5.
    As discussed in the February 9, 1999, May 5, 2000, and May 1, 2002, 
Federal Register notices, we deferred taking similar action on proposed 
revisions to the State's statutory and regulatory provisions regarding 
government-financed construction (64 FR 6201, 64 FR 6204, 65 FR 26130 
and 67 FR 21920). We took this action because the Federal AML 
Enhancement Rule had not been finalized and the State had not amended 
its rules. Even with the proposed changes mentioned above, the State 
has not completely revised its rules to include all of the AML 
Enhancement requirements at 30 CFR 707.5 and 874.17. In addition, in a 
recent ruling, the U.S. Court of Appeals concluded that the Federal AML 
Enhancement Rule is a reasonable interpretation of SMCRA. However, the 
Court found that, in promulgating the rule, OSM issued an 
interpretation that does not appear reasonable and remanded the case 
for further explanation. See Kentucky Resources Council, Inc. v. Gale 
A. Norton, Secretary of the Interior, U.S. District Court of Appeals 
for the District of Columbia Circuit, Civil Action No. 01-5263, June 
12, 2003. Therefore, we are deferring our decision on the amendments at 
CSR 38-2-3.31.a and c until the State adds counterparts to the Federal 
regulations at 30 CFR 707.5 and 874.17 as discussed above.

4. CSR 38-2-3.32.g. Permit Issuance--Unanticipated Event or Condition

    This provision is amended by adding new language at the end of the 
existing one-sentence paragraph, and by adding three new subdivisions. 
As amended, the provision is as follows:

    3.32.g. The prohibition of subdivision 3.32.c shall not apply to 
a permit application due to any violation resulting from an 
unanticipated event or condition at a surface mine eligible for 
remining under permit held by the applicant that meets the 
requirements of 30 CFR 773.15(4)(i). An event will be presumed to be 
unanticipated for purposes of this paragraph if it:

    3.32.g.1. Arose after remining permit was issued.
    3.32.g.2. Was related to prior mining; and

    3.32.g.3. Was not identified in the remining permit.

    We find that as amended, CSR 38-2-3.32.g is substantively identical 
to and no less effective than the Federal requirements at 30 CFR 773.13 
and can be approved. We note that the proposed language contains a 
citation error, in that ``30 CFR 773.15(4)(i)'' should be ``30 CFR 
785.25.'' It is our understanding that the citation error will be 
corrected at a future date. Our finding that this provision is no less 
effective than the Federal regulations is based upon that 
understanding.

5. CSR 38-2-5.2.a. Intermittent or Perennial Stream Buffer Zone

    This provision is amended by deleting the words, ``normal flow or 
gradient of the stream, adversely affect fish migration or related 
environmental values, materially damage the.'' In addition the words 
``and'' and ``or other environmental resources'' are added. As amended, 
the provision is as follows:

    5.2.a. Intermittent or Perennial Stream. No land within one 
hundred feet (100') of an intermittent or perennial stream shall be 
disturbed by surface mining operations including roads unless 
specifically authorized by the Director. The Director will authorize 
such operations only upon finding that surface mining activities 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream and will not cause or 
contribute to violations of applicable State or Federal water 
quality standards. The area not to be disturbed shall be designated 
a buffer zone and marked accordingly.

    We find that as amended, section CSR 38-2-5.2.a. is substantively 
identical to and no less effective than the counterpart Federal 
regulations at 30 CFR 816.57(a)(1) and (b) and can be approved. We note 
that the State counterpart to the Federal regulations at 30 CFR 
816.57(a)(2) concerning stream channel diversions was previously

[[Page 67038]]

approved and is located at CSR 38-2-5.3.

6. CSR 38-2-11.3.a.3. Surety Bonds

    This provision is new, and provides as follows:

    11.3.a.3. Surety received after July 1, 2001, must be recognized 
by the treasurer of state as holding a current certificate of 
authority from the United States Department of the Treasury as an 
acceptable surety on federal bonds.

    There is no counterpart to this new State provision in the Federal 
surface mining regulations. However, before a surety company can issue 
a bond for a Federal project, it must be certified by the U.S. 
Department of the Treasury. For further information, see Department of 
the Treasury's Listing of Approved Sureties, Department Circular 570. 
Therefore, we find that the new provision does not render the West 
Virginia program inconsistent with the Federal bonding and insurance 
regulations at 30 CFR part 800 and can be approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the State's amendment in the 
Federal Register on May 24, 2001 (66 FR 28682) (Administrative Record 
Number WV-1213). We received comments from the West Virginia Rivers 
Coalition (Administrative Record Number WV-1228), and combined comments 
from Hominy Creek Preservation Association, Inc., Ohio River Valley 
Environmental Coalition, Inc., and Citizen Coal Council (Administrative 
Record Number WV-1227). We also asked for comments on the State's 
clarification letter in the Federal Register on July 31, 2003 
(Administrative Record Number WV-1368). By letter dated August 15, 
2003, the Hominy Creek Preservation Association, Inc., Ohio River 
Valley Environmental Coalition, Inc., and Citizen Coal Council 
submitted combined comments in response to the WVDEP's July 1, 2003, 
letter of explanation concerning the CHIA amendments (Administrative 
Record Number WV-1370).
    1. A commenter stated that, despite the State's assertion that the 
amendments become effective on August 1, 2001, the Federal regulations 
provide that no amendments may take effect until OSM approves the 
change as a program amendment. We concur with this comment. According 
to the Federal regulations at 30 CFR 732.17(g) concerning State program 
amendments, no changes to laws or regulations that make up the approved 
State program shall take effect for purposes of a State program until 
approved as an amendment. However, as noted above in Finding 2, because 
the Federal rules do not define material damage, a State has discretion 
to develop and implement material damage criteria without seeking or 
awaiting OSM approval of that criteria.
    2. A commenter asserted that the State did not include a ``reasoned 
analysis'' as to why it was making the changes to delete the definition 
of ``cumulative impact'' at CSR 38-2-2.39 and to add the definition of 
``material damage to the hydrologic balance outside the permit area'' 
at CSR 38-2-3.22.e. Despite its July 1, 2003, clarification letter, the 
commenter asserted, the State has still not offered a rational 
explanation for the proposed amendment. This comment is beyond the 
scope of our criteria in approving proposed State program amendments. 
Whether or not the State has provided a ``reasoned analysis'' of 
proposed changes is an issue for the State rulemaking process. Our 
criterion is only to the issue of whether or not the proposed changes 
are consistent with the Federal requirements.
    3. A commenter stated that the definition of ``cumulative impact'' 
at CSR 38-2-2.39 is needed because the term ``cumulative impact'' is 
used at CSR 38-2-3.32.d.5. Subsection 3.32.d.5 provides that no permit 
application or significant revision may be approved until, among other 
things, the WVDEP has made an assessment of the probable ``cumulative 
impacts'' of all anticipated coal mining on the hydrologic balance in 
the cumulative impact area, and has determined that the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. The commenter stated that 
for CSR 38-2-3.32.d.5 to retain meaning, the term ``cumulative impact'' 
must continue to be defined. We disagree with this comment, because the 
State retains the definition of ``cumulative impact area'' at CSR 38-2-
2.39, which explains the concept of cumulative impact to mean the area, 
including the permit area, within which impacts resulting from the 
proposed operation may interact with the impacts of all anticipated 
mining on surface and groundwater systems. As addressed in a prior 
approval, the State's definition of cumulative impact area is 
substantively identical to the Federal definition of cumulative impact 
area at 30 CFR 701.5.
    The commenter stated that the definition of ``cumulative impact'' 
is also important because it clarifies that ``individual mines within a 
given cumulative impact area may be in full compliance with effluent 
standards and all other regulatory requirements, but as a result of the 
co-mingling of their off-site flows, there is cumulative impact.'' By 
deleting the definition, the commenter asserted, this clarification is 
omitted from the rules, making it more difficult in the future to hold 
individual mines accountable if they impact nearby water resources. In 
response, despite the deletion of the definition of ``cumulative 
impact,'' the WVDEP continues to require, at CSR 38-2-14.5, that all 
surface mining and reclamation activities shall be conducted to prevent 
material damage to the hydrologic balance outside the permit area. In 
its July 1, 2003, letter, the WVDEP stated that it will consider the 
numerical limits and water resource use designated by the water quality 
programs to make its CHIAs. As discussed above in Finding 1, the 
deletion of the definition of ``cumulative impact'' does not render the 
West Virginia program less effective than the Federal regulations which 
do not contain a definition of ``cumulative impact.''
    In addition, the commenter stated, the original definition of 
``cumulative impact'' requires that cumulative impacts be minimized. 
The proposed deletion, the commenter stated, does away with this goal, 
further weakening the proposed new regulations. We disagree. The State 
performance standards at CSR 38-2-14.5 concerning hydrologic balance 
provide that all surface mining and reclamation activities shall be 
conducted to minimize the disturbance of the hydrologic balance within 
the permit and adjacent area, and to prevent material damage to the 
hydrologic balance outside the permit area.
    The commenter also stated that the deletion of the definition of 
``cumulative impact'' at CSR 38-2-2.39 and the addition of the 
definition of ``material damage to the hydrologic balance'' at CSR 38-
2-3.22.e. combine to redefine ``material damage.'' The commenter stated 
that the proposed definition of ``material damage to the hydrologic 
balance'' refers to ``existing conditions and uses'' without stating 
whether this phrase refers to ``existing uses'' as defined in the Clean 
Water Act (CWA) or a plain English definition such as ``those 
conditions currently found.'' If a new definition of ``material 
damage'' is to be adopted, it should be clearly tied to ``existing 
uses'' and ``designated uses'' as defined in the CWA, the commenter 
stated. In response, the State's July 1, 2003, letter clearly links 
``existing uses'' to the State's legislative rule at CSR 46-1 
concerning

[[Page 67039]]

requirements governing stream uses and numerical water quality 
standards that apply to those streams. While the proposed definition of 
material damage only mentions existing uses, the State's water quality 
standards at CSR 46-1 take into consideration both existing and 
designated uses of streams. Therefore, as required by CSR 46-1, both 
existing and designated uses will be considered when determining what 
constitutes material damage to the hydrologic balance. In any case, 
such changes are within the discretion of the State under the Federal 
regulations.
    The commenter stated that if OSM approves a new definition of 
``material damage,'' it should be modified as follows: ``Material 
damage to the hydrologic balance outside the permit areas means any 
long term or permanent change in the hydrologic balance caused by 
surface mining operation(s) which has a significant adverse impact on 
the capability of the affected water resource(s) to support existing 
uses and designated uses as defined by the Clean Water Act and as 
implemented by the state's water quality standards.'' Otherwise, the 
commenter stated, the definition as currently written would have as a 
goal the maintenance of existing conditions--even if impacted water 
bodies are already impaired--rather than the goal of protecting 
existing and designated uses as required by the Clean Water Act. The 
proposed changes would facilitate the further degradation of polluted 
streams, the commenter asserted. In response, we believe that the State 
has, as explained in its July 1, 2003, letter, linked its CHIA 
requirements to the States identified uses of West Virginia streams and 
the numerical water quality standards that apply to those streams. 
Therefore, the State will consider both existing and designated uses 
when making its determination of material damage.
    4. A commenter stated that the deletion of the definition of 
``cumulative impact'' would authorize WVDEP to perform CHIAs that do 
not predetermine threshold limits or ranges in defining material damage 
and that do not include each applicable numeric water quality standard 
and effluent limitation among those limits and ranges. These 
amendments, the commenter stated, are not in accordance with the 
provisions of SMCRA, nor are they consistent with the Federal 
regulations governing hydrologic protection. The changes thus fail to 
meet the criteria for approval set forth at 30 CFR 732.15(a) and 
732.17(h)(10), the commenter stated. The commenter also stated, in 
response to the WVDEP's July 1, 2003, letter, that it is essential that 
WVDEP set forth some objective criteria to use in performing CHIA's. 
Unless WVDEP sets specific limits or ranges of cumulative impact 
(whether based on biological, chemical, or other parameters), there can 
be no ``objective criteria'' to determine whether a surface coal mining 
operation has or has not materially damaged the ``use'' of a water 
body. Indeed, the commenter stated, to implement effectively the 
``use''-based material damage standard that WVDEP proposes, the agency 
will necessarily have to establish threshold limits or ranges of 
parameters that measure actual stream ``use'' in order to determine 
objectively whether the hydrologic effect of a particular operation 
meets or violates any narrative ``use'' standard in 46 CSR 1. At a 
minimum, the commenter stated, monitoring plans for permits approved on 
the basis of a biologically-based ``use'' standard would necessarily 
have to establish specific thresholds and ranges of biological activity 
in making such determinations. Thus, repeal of the current requirement 
to predetermine ``threshold limits or ranges'' of cumulative impact 
that constitute material damage to the hydrologic balance cannot be 
justified by either the goal of establishing ``objective criteria'' or 
the goal of shifting to use-based standard for material damage.
    We disagree with the assertion that the proposed changes are not 
consistent with SMCRA or the Federal regulations. It is our 
understanding that under the proposed amendments, the WVDEP will 
conduct CHIAs by considering the West Virginia legislative rules at CSR 
46-1 to identify both the existing and designated uses and the 
established numerical water quality standards for the streams and 
stream segments in the cumulative impact area. The numerical water 
quality standards identified in CSR 46-1 are, as WVDEP stated in its 
July 1, 2003, letter, intended to protect the respective stream uses 
that are identified in CSR 46-1. Therefore, it is the numerical water 
quality standards that are the objective criteria that the WVDEP will 
use in its assessment of whether the proposed mining operation is 
designed to prevent material damage outside the permit area in 
accordance with CSR 38-2-3.22.e. As noted in its July 1, 2003, letter, 
the State also plans to adopt a use-based narrative standard to assess 
material damage to the hydrologic balance. The WVDEP stated that this 
approach considers the numerical limits and water resource use 
designated by the water programs when making CHIAs. In any case, West 
Virginia has the discretion under the Federal regulations to establish 
or modify its CHIA process, without seeking OSM's approval, so long as 
it remains consistent with Federal regulations. Therefore, to the 
extent that these changes may broaden the State's discretion in its 
CHIA process, it is still consistent with Federal regulations.
    The commenter also stated that, at a minimum, OSM must require 
WVDEP to explain how the WVDEP will require permittees to monitor 
affected water bodies in a manner that produces data that can be ``used 
to determine the impact of the operation on the hydrologic balance'' as 
CSR 38-2-3.22.g and 38-2-3.22.h require. The proposed shift to a 
``use''-based definition of material damage appears to make irrelevant 
any measurement of the chemical or physical parameters mentioned in the 
hydrologic monitoring provisions of the approved program, because those 
parameters do not (at least directly) measure changes in the capability 
of a water body to support a specific ``use.'' Since WVDEP does not 
propose a change in the specifically required monitoring parameters, 
the commenter stated, how will the WVDEP ensure that permittees develop 
meaningful data for determining whether material damage has occurred? 
In response, the State's shift to a ``use''-based definition of 
material damage does not mean that the State has abandoned the use of 
numerical water quality standards. Rather, the WVDEP has indicated that 
the State is using the ``use'' designations of West Virginia streams as 
identified in CSR 46-1 to identify the designated use of a stream or 
stream segment, and to determine the numerical water quality standards 
for those streams and stream segments. The use of CSR 46-1 allows the 
WVDEP CHIA reviewers to clearly identify the numerical water quality 
standards for West Virginia streams. The WVDEP stated in its July 1, 
2003, letter that the State rules provide a narrative standard, based 
upon use, for the reviewers to apply when making CHIA findings.
    The commenter stated that, as noted in detail in their initial 
comments on the proposed amendments (see Administrative Record Number 
WV-1227), the proposed deletion of the ``cumulative impact'' definition 
appears aimed at eliminating rather than establishing ``objective 
criteria'' for determining whether a mining operation causes material 
damage to the hydrologic balance. The commenter also stated that 
without the existing requirement to predetermine threshold limits or 
ranges, WVDEP's proposed definition of ``material damage''

[[Page 67040]]

establishes decidedly subjective criteria that will unquestionably 
prove unenforceable. We disagree with this comment, because the State 
regulations at CSR 46-1 clearly identify the specific numerical water 
quality standards that apply to West Virginia's streams and stream 
segments.
    The commenter also stated that none of the terms used in the 
definition of ``material damage'' (such as ``long term,'' 
``permanent,'' and ``capability'') is an objective criterion. Even if 
WVDEP had defined these terms, the commenter stated, the WVDEP's 
definitions of the terms would not have necessarily precluded the West 
Virginia Surface Mine Board or the West Virginia courts from settling 
on different definitions. The vague nature of the terms in the proposed 
``material damage'' definition requires OSM to conclude that approval 
of the proposed program amendments would render the West Virginia 
program less effective than its Federal counterpart. First, there is no 
Federal counterpart to the proposed definition, nor is there a Federal 
requirement that the State establish objective criteria, or submit them 
to OSM for approval. We agree with the comment that some of the words 
in the definition of ``material damage to the hydrologic balance 
outside the permit areas'' may appear to be vague and subject to 
interpretation. However, the numerical water quality standards 
presented in the regulations at CSR 46-1, which take into consideration 
stream uses, are clear. Therefore, despite the vagueness of some words 
in the definition, the State has clear numeric and use based standards 
that the WVDEP has stated it will consider when performing a CHIA 
determination.
    In referring to the statements in the WVDEP's July 1, 2003, letter, 
the commenter stated that nothing in the rulemaking record supports the 
WVDEP's suggestion that the existing ``cumulative impact'' definition 
leaves ``the threshold(s) to be assigned to the unguided discretion of 
an individual reviewer.'' In actual practice, when WVDEP reviewers have 
assigned ``threshold limits or ranges'' under the existing regulation, 
they have drawn them from the established numeric West Virginia water 
quality standards in Appendix E to CSR 46-1. WVDEP cites not even one 
instance, the commenter stated, in which an ``individual reviewer'' has 
assigned any ``threshold'' that does not appear in Appendix E. Even if 
there have been such instances, the rational remedy would be to confine 
the assignable threshold limits or ranges to those set forth in 
Appendix E, rather than doing away with limits or ranges altogether. An 
unrealized potential for abuse does not constitute a rational 
justification for repealing West Virginia's ``cumulative impact'' 
definition, particularly in view of the State's ability to prevent 
abuse without doing away with ``threshold limits or ranges'' entirely, 
the commenter stated. The commenter is seeking OSM intervention into 
the innerworkings of the State's CHIA process that Federal regulations 
have left to the discretion of the States. In response, this comment 
acknowledges WVDEP's current reliance on the water quality standards in 
Appendix E of CSR 46-1. We believe that this is what the WVDEP stated 
that it will do as part of its CHIA process in its July 1, 2003, 
letter. That is, it stated that ``[t]he WVDEP approach considers the 
numerical limits and water resource use designated by the water quality 
programs to make the assessment required by the mining program.'' 
Requiring all CHIA reviewers to use the specific standards at CSR 46-1 
should also eliminate WVDEP's concern that such standards would be 
developed individually by the unguided discretion of individual 
reviewers.
    The commenter stated that WVDEP's claim that the proposed program 
amendments will prevent development or utilization of thresholds or 
parameters for effluent discharges other than those established by the 
CWA program is a complete non sequitur. The threshold limits or ranges 
required by the current definition of ``cumulative impact'' concern 
determinations of ``material damage to the hydrologic balance.'' When 
predetermined, such threshold limits or ranges apply to the water 
quality of water bodies that receive effluent discharges from surface 
coal mining and reclamation operations, not to effluent discharges 
themselves. Thus, it is irrational to suggest that abandonment of the 
requirement to predetermine threshold limits and ranges preclude 
development or utilization of thresholds or parameters for effluent 
discharges that might prove inconsistent with the CWA. Moreover, the 
commenter stated, even if predetermination of ``threshold limits or 
ranges'' might conceivably dictate effluent limitations that conflict 
with West Virginia's program under the CWA, the only rational solution 
to that problem would be to confine the selection of limits or ranges 
to those that are consistent with proper implementation of the CWA, not 
to abandon threshold limits or ranges altogether. In response, we 
believe that by considering the numerical water quality standards in 
CSR 46-1, as the WVDEP so indicated in its July 1, 2003, letter, the 
WVDEP is in effect confining its consideration to those water quality 
standards that are consistent with proper implementation of the CWA. 
Furthermore, the State's water quality standards protect both aquatic 
life and human health by designating uses and establishing specific 
parameters and limits or ranges to protect such uses during mining.
    The commenter stated that, absent a showing that the State's 
enforcement of SMCRA's hydrologic protection requirements has suffered 
from the absence of a ``use''-based material damage definition (rather 
than non-enforcement of the existing ``cumulative impact'' definition), 
the WVDEP's desire to shift to the sort of definition it previously 
rejected (and which OSM has found inappropriate for inclusion in its 
national regulations, the commenter stated) is arbitrary and 
capricious, the commenter stated. We disagree with this comment. As we 
stated above in Finding 2, OSM concluded that, because the gauges for 
measuring material damage may vary from area to area, and from 
operation to operation, the criteria for determining material damage 
should be left to the States (48 FR 43956, 43972-43973; September 26, 
1983). It is not inappropriate for the State to amend its procedures or 
criteria for performing CHIAs and to amend those procedures as it deems 
necessary. Seeking Federal approval of CHIA criteria is discretionary.
    5. A commenter stated that WVDEP's perceived need to establish a 
definition of ``material damage'' that is consistent with the 
administration and implementation of West Virginia's counterpart to the 
Clean Water Act, while rational in and of itself, does not provide a 
rational justification for repealing the definition of ``cumulative 
impact'' or shifting to an exclusively ``use''-based definition of 
material damage. The commenter stated that West Virginia has adopted 
numeric water quality standards that function hand-in-glove with the 
State's narrative, ``use''-based water quality criteria. The only 
rational method of ensuring that the CHIA process and enforcement of 
SMCRA's hydrologic protection requirements are consistent with the 
administration and implementation of West Virginia's counterpart to the 
Clean Water Act, the commenter stated, would be to confine the 
``threshold limits or ranges'' that WVDEP may predetermine under the 
``cumulative impact'' definition to (1) The numeric water quality 
standards applicable to each affected water body and (2) such 
additional limits or ranges as WVDEP

[[Page 67041]]

may determine necessary to enforce applicable narrative water quality 
criteria. Here again, the commenter stated, the perceived need to 
ensure compatibility with the Clean Water Act simply does not justify 
doing away with ``threshold limits or ranges'' that are an integral 
part of the State's program under the Clean Water Act. In response, as 
we stated above in Finding 2, the WVDEP's July 1, 2003, letter 
acknowledges that the State intends to use a narrative-based use 
standard in making its CHIAs. The WVDEP also stated in its July 1, 
2003, letter, that the State approach will consider both water quality 
numerical limits and water resources uses designated by the water 
quality programs in making the CHIA required by the mining program.
    6. A commenter stated that Congress imposed the CHIA requirement to 
ensure that regulatory authorities do not approve permit applications 
for mines that would make worse pollution overloads that already exist. 
Congress certainly intended, the commenter stated, that SMCRA 
regulatory authorities would perform CHIAs and make material damage 
findings that are consistent with the letter and underlying purpose of 
section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d), which 
requires the imposition of sharply reduced effluent limits or the 
denial of National Pollutant Discharge Elimination System (NPDES) 
permits in order to restore the quality of streams overloaded with 
pollutants. The commenter referred to 30 U.S.C. 1292(a)(3) (requiring 
construction of SMCRA to avoid superseding, amending, modifying, or 
repealing the Clean Water Act).
    In response, the WVDEP's July 1, 2003, letter did not address the 
specific points made here by the commenter. However, CSR 46-1 clearly 
sets forth the numerical water quality standards for streams and stream 
segments in West Virginia. Additionally, CSR 46-1 does not provide for 
or allow the discharge of pollutants that would make worse pollution 
overloads that already exist. Furthermore, CSR 38-2-14.15.b, like 30 
CFR 816/817.42, clearly provides that discharges from areas disturbed 
by surface mining shall not violate effluent limitations or cause a 
violation of applicable water quality standards. Therefore, we cannot 
agree that it is the WVDEPs intention to allow discharges from mines 
that would not comply with effluent limitations or make worse pollution 
overloads that already exist.
    7. A commenter stated that approval of the amendments at CSR 38-2-
2.39 and CSR 38-2-3.22.e. would impair or preclude effective citizen 
participation in and OSM oversight of the administration and 
enforcement of the West Virginia program. The commenter asserts that 
the amendments at CSR 38-2-2.39 and CSR 38-2-3.22.e. replace 
predetermined, quantitative material damage criteria with a vague, 
subjective definition that would surely confound any citizen's effort 
to independently detect or prove a violation of the standard. The cost 
and restricted availability of experts whom a citizen would necessarily 
have to retain in any attempt to prove a violation of such an amorphous 
standard will almost certain chill public participation in its 
enforcement well below the freezing level.
    We disagree with this comment. None of the amendments that the 
State is proposing affect in any way the public participation 
provisions of the approved West Virginia program. In addition, as it 
stated in its July 1, 2003, letter, the WVDEP will consider the 
existing and designated uses and numerical water quality standards for 
West Virginia streams and stream segments at CSR 46-1 when making 
CHIAs. These numerical water quality standards are the predetermined, 
quantitative standards with specific parameters and limits or ranges 
that WVDEP's CHIA reviewers will consider in making CHIA 
determinations, and that the public can use to monitor compliance.
    8. One commenter addressed the amendments to CSR 38-2-5.2 
concerning intermittent or perennial streams. The commenter stated 
that, ``the changes delete three explicit requirements, and substitute 
in their place the requirement that the activities will not adversely 
affect ``the water quantity and quality or other environmental 
resources of the stream'.'' The commenter stated that the amended rule 
is sufficiently vague that the practice of burying intermittent or 
perennial streams may arguably be approvable by the WVDEP, because 
burying streams would not directly contradict the letter of the rule. 
The commenter stated that, ``this clear attempt to weaken the existing 
rule should be disapproved.''
    As we discussed above in Finding 5, we have determined that as 
amended, the revisions to section CSR 38-2-5.2.a. concerning 
intermittent or perennial streams render that provision substantively 
identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1) 
and (b). Therefore, we found that the amendments can be approved. We 
also noted in Finding 5, that the State counterpart to the Federal 
regulations at 30 CFR 816.57(a)(2) concerning stream channel diversions 
was previously approved and is located at CSR 38-2-5.3.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendments from various Federal agencies with 
an actual or potential interest in the West Virginia program by letters 
dated May 30, 2001 and July 25, 2003 (Administrative Record Numbers WV-
1215 and WV-1367, respectively).
    By letter dated June 25, 2001 (Administrative Record Number WV-
1224), the U.S. Fish and Wildlife Service (USFWS) provided the 
following comments.
1. CSR 38-2-2.39 Definition of Cumulative Impact
    The USFWS stated that the deletion of the definition of 
``cumulative impact'' as meaning the hydrologic impact that results 
from the cumulation of flows from all coal mining sites to common 
channels or aquifers is a serious concern to the USFWS. The USFWS also 
stated that it is also concerned with the deletion of the language of 
that definition that states cumulative impact should be minimized.
    The USFWS stated that cumulative impact assessments are required by 
the National Environmental Policy Act (NEPA) and by the Council on 
Environmental Quality's (CEQ) regulations requiring agencies to address 
cumulative effects. As stated in the CEQ regulations for implementing 
NEPA, the USFWS stated, cumulative effects are defined as the impact on 
the environment which results from the incremental impact of the action 
when added to other past, present, and reasonably foreseeable future 
actions regardless of what agency or person undertakes such other 
actions. ``We have ongoing concern,'' USFWS stated, ``for the 
cumulative impacts occurring from individual mountaintop mining 
operations on the ecological functioning of entire watersheds and 
believe that the law should address this very important issue more 
thoroughly rather than with less scrutiny.'' The USFWS recommended that 
these changes not be approved.
    In response, the deletion of the definition of ``cumulative 
impact'' does not mean that the WVDEP will not be conducting cumulative 
hydrologic impact assessments. CSR 38-2-3.22.e continues to require the 
WVDEP to conduct a CHIA that is sufficient to determine whether the 
proposed mining operation has been designed to prevent material damage 
to the hydrologic balance outside the permit area. In

[[Page 67042]]

addition, the State regulations continue to require the permit 
applicant to provide probable hydrologic consequences (PHC) information 
(at 38-2-3.22.a) and to provide surface and groundwater monitoring 
plans (CSR 38-2-3.22.g and 3.22.h, respectively). The State's 
regulations continue to contain, at CSR 38-2-2.39, the definition of 
cumulative impact area. In addition, the State explained in its July 1, 
2003, letter, that the WVDEP's CHIA process considers the numerical 
limits and water resource uses designated at CSR 46-1 to make the 
required CHIA. Therefore, under the approved State program, the State 
will continue to evaluate cumulative hydrologic impacts. Furthermore, 
actions of State regulatory authorities under their approved State coal 
regulatory programs are not subject to NEPA review.
2. CSR 38-2-3.22.e Definition of Material Damage to the Hydrologic 
Balance
    The USFWS stated that in the new language added to CSR 38-2-
3.22.e., the terms ``long term'' and ``significant adverse impact'' are 
not defined and therefore are open to individual interpretation. The 
USFWS recommended that this subsection contain a definition of these 
terms. Also, the USFWS stated, this definition effectively eliminates 
any consideration of short-term impacts to the hydrologic balance with 
no regard to the degree of those impacts. The USFWS further stated that 
it considers the elimination of any consideration of short-term impacts 
to be ``a serious shortcoming in protection of fish and wildlife 
resources.'' The USFWS recommended that these changes not be approved.
    In response, there are, indeed, undefined words in the definition 
of ``material damage to the hydrologic balance outside the permit 
areas.'' However, the State's use of such words as ``long term'' and 
``significant adverse impact'' in defining material damage does not 
render the State's definition less effective than SMCRA or the Federal 
regulations, because there is no Federal counterpart to this term. In 
accordance with SMCRA and the Federal regulations, the State provision 
requires a CHIA to determine whether the proposed operation has been 
designed to prevent material damage outside the permit area. Finally, 
the State's proposed definition does not supersede or prohibit 
compliance with any State or Federal water quality standards. 
Furthermore, short-term impacts will be considered. The NPDES effluent 
limitations established for a proposed permit will apply, as will all 
applicable State and Federal water quality standards. As we noted above 
in Finding 2, we determined that the definition of ``material damage to 
the hydrologic balance outside the permit areas'' does not render the 
West Virginia program less effective than the Federal CHIA regulations 
and can be approved.
3. CSR 38-2-5.2.a Intermittent or Perennial Stream
    The USFWS stated that it opposes the changes to this provision. The 
USFWS specifically objected to the deletion of the language that 
required that mining activity within one hundred feet of an 
intermittent or perennial stream not adversely affect the normal flow 
or gradient of the stream, adversely affect fish migration or related 
environmental values or materially damage water quantity or quality. 
The USFWS stated that given that hundreds of miles of West Virginia's 
headwater streams have been permanently filled as a result of surface 
coal mining, it believes that protection of aquatic resources should be 
strengthened in the West Virginia program. The USFWS recommended that 
these changes not be approved. In response, and as we stated above in 
Finding 5, as amended, section CSR 38-2-5.2.a. is substantively 
identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1) 
and (b) and can be approved. We also noted that the State counterpart 
to the Federal regulations at 30 CFR 816.57(a)(2) concerning stream 
diversions was previously approved and is located at CSR 38-2-5.3.
    By letter dated August 27, 2003, and an e-mail message dated August 
19, 2003 (Administrative Record Numbers WV-1375 and WV-1374, 
respectively), the U.S. Department of Labor, Mine Safety and Health 
Administration (MSHA) responded and stated that it has reviewed the 
additions and changes, and has determined that there is no 
inconsistency with MSHA's regulations. Most of the changes pertain to 
hydrologic impacts of mining and do not affect MSHA programs.

Environmental Protection Agency (EPA) Comments/Concurrence

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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 May 29, 2003, we asked for concurrence on the amendments from 
EPA (Administrative Record Number WV-1214). On November 23, 2001 
(Administrative Record Number WV-1252) EPA sent us its written 
concurrence with comments. EPA stated that there are no apparent 
inconsistencies with the CWA, NPDES regulations, or other statutes and 
regulations under the authority of EPA. EPA said that it is providing 
its concurrence with the understanding that implementation of the 
amendments must comply with the CWA, NPDES regulations, and other 
statutes and regulations under its authority. On July 25, 2003, we 
asked the EPA for its concurrence on the July 1, 2003, letter from the 
WVDEP that provided further clarification concerning proposed 
amendments regarding cumulative impact, material damage, and 
government-financed construction at CSR 38-2-2.39, 3.22.e, and 3.31.c, 
respectively (Administrative Record Number WV-1368). On August 19, 
2003, EPA sent us its written concurrence with comments (Administrative 
Record Number WV-1372).
    In its August 19, 2003, letter, EPA stated that WVDEP's 
clarification letter addresses ``cumulative impact'' and ``material 
damage,'' two of the issues that the EPA had concerns and 
recommendations. EPA stated that it feels that its recommendations on 
these issues as well as others addressed in its November 23, 2001, 
letter still have merit and should be considered for inclusion. 
Nevertheless, EPA stated, WVDEP's July 1, 2003, clarification letter 
stresses its commitment to require compliance with water quality 
standards, EPA's main concern.
    EPA provided the following comments on the proposed amendments in 
its November 23, 2001, letter.
1. CSR 38-2-2.39 Definition of Cumulative Impact
    EPA recommended that the definition of cumulative impact not be 
deleted, and that wording be added to the definition to clarify that it 
includes impacts from past, present, and reasonably foreseeable future 
activities. EPA stated that it is concerned that the deletion of the 
definition would leave that term cumulative impact vague and would 
subject it to individual interpretation. EPA stated that this could 
result in less environmental focus during preparation of a CHIA which 
is required for new mining operations. EPA stated that where cumulative 
impacts are large enough to cause non-compliance with water quality 
standards, including the anti-degradation policy, they constitute a 
violation of the CWA, even if the NPDES permits require compliance with

[[Page 67043]]

applicable technology-based effluent guideline limits.
    As we noted above in Finding 1, the deletion of the definition of 
``cumulative impact'' does not render the West Virginia program less 
effective because there is no Federal definition of cumulative impact 
as the term relates to CHIA. We also noted that the State's existing 
definition of ``cumulative impact area'' at CSR 38-2-2.39 clearly 
states that cumulative impact area means the area, including the permit 
area, within which impacts resulting from the proposed mining operation 
may interact with the impacts of all anticipated mining on surface and 
groundwater systems. The State's definition of ``cumulative impact 
area'' was determined earlier to be substantively identical to the 
counterpart Federal definition of ``cumulative impact area'' at 30 CFR 
701.5. We believe that the impacts due to past mining are captured via 
the surface and ground water baseline data required by CSR 38-2-3.22. 
Therefore, in its CHIA assessment, the State will be considering the 
impacts from past, present, and anticipated future mining operations in 
the cumulative impact area. The WVDEP's July 1, 2003, letter further 
clarified that other sections of the State rules require the applicant 
to show no material outside the permit area and to assess cumulative 
impacts within the cumulative impact area. We concur with EPA's comment 
that where cumulative impacts are large enough to cause non-compliance 
with water quality standards, including the anti-degradation policy, 
they could constitute a violation of the CWA, even if the NPDES permits 
require compliance with applicable technology-based effluent guideline 
limits.
2. CSR 38-2-3.22.e Definition of ``Material Damage'' Added to This 
Provision
    EPA recommended that the definition of material damage be expanded 
to include ``violation of water quality standards.'' EPA stated that 
water quality standards require protection of designated uses as well 
as existing uses, compliance with anti-degradation policy, and do not 
exempt short term adverse impacts. We agree that water quality 
standards require protection of designated uses as well as existing 
uses, compliance with anti-degradation policy, and do not exempt short 
term adverse impacts. In its July 1, 2003, letter, the WVDEP stated 
that the WVDEP approach considers the numerical water quality limits 
and the water resource use designated by the water quality programs. 
The WVDEP further stated that the uses are outlined in the State's 
rules at CSR 46-1. Under SMCRA and the Federal regulations, the purpose 
of the CHIA is to determine, for permit approval purposes, whether the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. We believe, as discussed 
above in Finding 2, that the State's program amendment does not render 
the West Virginia program less effective than the Federal CHIA 
provisions and can be approved.
3. CSR 38-2-3.32.g Unanticipated Event or Condition
    EPA stated that, although unanticipated remining discharges may not 
be a cause for blocking future SMCRA permits, it wants to make sure 
that it is understood that remining companies are not exempt from NPDES 
permit violations which may arise from unanticipated discharges. EPA 
stated that where there may be a question about a potential 
unanticipated discharge during remining, such as release of water 
caused by breaking into an adjacent abandoned mine pool, EPA 
recommended that pre-remining exploration, boreholing, and reviewing of 
old mine maps be conducted to minimize this possibility. We concur that 
remining operations are not exempt from NPDES permit violations that 
arise from unanticipated discharges, and that appropriate pre-mining 
exploration should be conducted to minimize the possibility of breaking 
into adjacent abandoned mine pools. The State's approved program would 
allow such exploration if it is deemed necessary during remining 
operations.
4. CSR 38-2-5.2.a Intermittent or Perennial Stream Buffer Zones
    EPA recommended that the entire current definition be retained, 
since it is more comprehensive about measures for environmental 
protection. EPA also stated that the most important part of the 
definition has been kept--the requirement for compliance with water 
quality standards. EPA stated that the proposed wording which prohibits 
adverse effects on water quantity and quality and other environmental 
resources should provide an added measure of environmental protection, 
with one exception--the proposed change from ``or'' to ``and'' in 
reference to ``water quantity or quality.'' EPA stated that the 
proposed word ``and'' implies that there must be adverse effects to 
both water quantity and quality before the activities are prohibited. 
EPA recommended keeping the word ``or'' which clarifies that adverse 
effects to either water quantity or quality are prohibited. EPA also 
stated that the proposed deletion of adverse effects on stream gradient 
and fish migration, as a reason for prohibiting surface mining 
activities, appears to be designed to accommodate construction of 
valley fills. EPA stated that filling of the waters of the U.S. 
requires authorization under Section 404 of the CWA. As we stated above 
in Finding 5, the State's proposed stream buffer zone requirements at 
CSR 38-2-5.2.a (along with CSR 38-2-5.3) are substantively identical to 
the counterpart Federal regulations at 30 CFR 816/817.57(a) and, 
therefore, can be approved. In addition, there is nothing in the 
proposed amendment that prevents or prohibits compliance with section 
404 of the Clean Water Act.

V. OSM's Decision

    Based on the findings above, we are approving the amendments to the 
West Virginia program sent to us on May 2, 2001, and clarified by 
letter dated July 1, 2003. However, we are deferring our decision on 
the amendments at CSR 38-2-3.31.a and c regarding funding for 
government-financed construction until the State adds counterparts to 
the Federal regulations at 30 CFR 707.5 and 874.17.
    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 a State program demonstrate that such State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

[[Page 67044]]

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 is on a State 
regulatory program and does not involve Federal regulations 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 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: November 17, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 948--WEST VIRGINIA

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

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


0
2. Section 948.15 is amended by adding a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                        Date of publication of
 Original amendment submission date           final rule            Citation/description of approved provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 2, 2001, July 1, 2003..........  December 1, 2003...........  CSR 38-2-2.39 (a deletion), 3.22.e, 3.31.a
                                                                   (deferral), 3.32.g, 5.2.a, and 11.3.a.3.
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[FR Doc. 03-29757 Filed 11-28-03; 8:45 am]
BILLING CODE 4310-05-P