[Federal Register Volume 71, Number 41 (Thursday, March 2, 2006)]
[Rules and Regulations]
[Pages 10764-10790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1901]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 948



West Virginia Regulatory Program; Final Rule

  Federal Register / Vol. 71, No. 41 / Thursday, March 2, 2006 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-106-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 certain exceptions, an amendment to the 
West Virginia regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
West Virginia amended the Code of West Virginia (W. Va. Code or WV 
Code) and the Code of State Regulations (CSR) as authorized by several 
bills passed during the State's regular 2004-2005 legislative session. 
The State revised its program to be consistent with certain 
corresponding Federal requirements, and to include other amendments at 
its own initiative.

DATES: Effective Date: March 2, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158, e-mail 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.

II. Submission of the Amendment

    West Virginia proposed revisions to the Code of West Virginia (W. 
Va. Code or WV Code) and the Code of State Regulations (CSR) as 
authorized by several bills passed during the State's regular 2004-2005 
legislative session. West Virginia also proposed an amendment that 
relates to the State's regulations concerning erosion protection zones 
(EPZ) associated with durable rock fills. The State revised its program 
to be consistent with certain corresponding Federal requirements, and 
to include other amendments at its own initiative. The amendments 
include, among other things, changes to the State's surface mining and 
blasting regulations as authorized by Committee Substitute for House 
Bill 2723; various statutory changes to the State's approved program as 
a result of the passage of Committee Substitute for House Bill 3033 and 
House Bills 2333 and 3236; the submission of a draft policy regarding 
the State's EPZ requirement and requesting that OSM reconsider its 
previous decision concerning EPZ; State water rights and replacement 
policy identifying the timing of water supply replacement; the revised 
Permittee's Request For Release form; the submission of a Memorandum of 
Agreement (MOA) between the West Virginia Department of Environmental 
Protection (WVDEP), Division of Mining and Reclamation, and the West 
Virginia Division of Natural Resources, Wildlife Resources Section that 
is intended to partially resolve a required program amendment relating 
to planting arrangements for Homestead post-mining land use; and a 
memorandum from the West Virginia Division of Forestry to the WVDEP 
supporting the tree stocking standards for Homestead.
    By letters dated June 13, 2005 (Administrative Record Numbers WV-
1419, WV-1420, and WV-1421), the WVDEP submitted amendments to its 
program under SMCRA (30 U.S.C. 1201 et seq.). The amendments consist of 
several bills passed during West Virginia's 2004-2005 legislative 
session and a draft policy concerning EPZs associated with durable rock 
fills.
    House Bill (HB) 2333 amends the W. Va. Code by adding new Article 
27 entitled the Environmental Good Samaritan Act (Sections 22-27-1 
through 22-27-12). HB 2333 was adopted by the Legislature on March 24, 
2005, and signed into law by the Governor on April 6, 2005, with an 
effective date of June 22, 2005. In its letter, the WVDEP stated that 
HB 2333 establishes a program to encourage voluntary reclamation of 
lands adversely affected by mining activities by limiting the liability 
that could arise as a result of the voluntary reclamation of abandoned 
lands or reduction/abatement of water pollution.
    Committee Substitute for HB 2723 authorizes (at paragraph g) 
amendments to the West Virginia Surface Mining Reclamation Rules at CSR 
38-2 and (at paragraph i) amendments to the Surface Mining Blasting 
Rule at CSR 199-1. This bill was passed by the Legislature on April 8, 
2005, and approved by the Governor on May 3, 2005, with an effective 
date from the date of passage. We note that some of the amendments to 
CSR 38-2 and CSR 199-1 are intended to address required program 
amendments that are codified in the Federal regulations at 30 CFR 
948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll), 
(ooooo), (ppppp), and (rrrrr).
    Committee Substitute for HB 3033 amends the West Virginia Surface 
Coal Mining and Reclamation Act (WVSCMRA) at W. Va. Code Section 22-3-
11 concerning the State's special reclamation tax. This bill was passed 
by the Legislature on April 1, 2005, and signed by the Governor on 
April 18, 2005, with an effective date of April 1, 2005. In its letter, 
the WVDEP stated that HB 3033 extends the temporary special reclamation 
tax that funds the State's alternative bonding system for an additional 
18 months (at WV Code 22-3-11(h)(1)) and provides additional duties for 
the WVDEP Secretary in managing the State's alternative bonding system 
(at W. Va. Code 22-3-11(h)(2), (3), and (4)). We note that OSM 
previously approved West Virginia's temporary special reclamation tax 
on December 28, 2001 (66 FR 67446), with additional modification on May 
29, 2002 (67 FR 37610, 37613-37614). The State's current extension of 
that temporary tax by an additional 18 months does not need OSM's 
specific approval because the State has only lengthened the time period 
of the temporary tax. Except as discussed below, the State has not 
modified any duties or functions under the approved West Virginia 
program, and the change is in keeping with the intent of our original 
approvals. Therefore, we did not seek public comment on the State's

[[Page 10765]]

extension of the temporary tax from thirty-nine to fifty-seven months 
at W. Va. Code 22-3-11(h)(1). The extension took effect from the date 
of passage of Committee Substitute for HB 3033, on April 1, 2005. In 
addition, we did not seek public comment on the State's new language at 
W. Va. Code 22-3-11(h)(3) and (4). These new provisions only direct the 
Secretary of the WVDEP to conduct various studies and authorize the 
Secretary of the WVDEP to propose legislative rules concerning its 
bonding program as appropriate. These provisions do not modify any 
duties or functions under the approved West Virginia program and do 
not, therefore, require OSM's approval. However, we asked for public 
comment on the State's provisions at WV Code 22-3-11(h)(2)(A) and (B). 
Under these new provisions, the WVDEP Secretary will be required to 
pursue cost effective alternative water treatment strategies, conduct 
formal actuarial studies every two years, and conduct informal reviews 
annually on the Special Reclamation Fund. Upon further consideration of 
new W. Va. Code 22-3-11(h)(2)(A) concerning the requirement to pursue 
cost effective alternative water treatment strategies, we have 
concluded that that requirement does not represent a substantive change 
to the West Virginia program. That is, new Subsection (h)(2)(A) will 
have no immediate effect on the implementation of the provisions of the 
approved West Virginia program. Additionally, in its pursuit of cost-
effective water treatment strategies, if the State does identify any 
needed regulatory revisions or additions, such changes would be pursued 
through established rulemaking procedures and subject to OSM review and 
approval. Therefore, we have determined that the amendment to CSR 38-2-
11(h)(2)(A) does not require OSM's approval and we have not made a 
finding on that provision in our findings below.
    HB 3236 amends the WVSCMRA by adding new W. Va. Code Section 22-3-
11a concerning the special reclamation tax, and adding new Section 22-
3-32a concerning the special tax on coal. HB 3236 was passed by the 
Legislature on April 9, 2005, and approved by the Governor on May 2, 
2005, with an effective date of April 9, 2005. HB 3236 provides that 
the special reclamation tax and the special tax, which is used to 
administer the State's approved regulatory program, are applicable to 
thin seam coal, and the special reclamation tax is subject to the WV 
Tax Crimes and Penalties Act and the WV Tax Procedure and 
Administration Act.
    In addition, WVDEP submitted Committee Substitute for HB 3033 which 
contains strikethroughs and underscoring showing the actual language 
that has been added and deleted from the WVSCMRA, as a result of the 
passage of Enrolled Committee Substitute for HB 3033 discussed above 
(Administrative Record Number WV-1422).
    WVDEP submitted a MOA dated September 2003 between the WVDEP, 
Division of Mining and Reclamation, and the West Virginia Division of 
Natural Resources, Wildlife Resources Section (Administrative Record 
Number WV-1405). This MOA outlines responsibilities of both agencies in 
reviewing surface and underground coal mining permit applications; 
evaluating lands unsuitable for mining petitions; developing wildlife 
planting plans as part of reclamation plans of permit applications; and 
restoring, protecting and enhancing fish and wildlife on mined lands 
within the State. The MOA was developed in response to a letter to the 
State from OSM in accordance with the Federal regulations at 30 CFR 
Part 732 and dated March 6, 1990 (Administrative Record Number WV-834). 
Such letters sent by OSM are often referred to as ``732 letters'' or 
``732 notifications.'' In the March 6, 1990, letter, OSM stated that 
the State program did not require that minimum stocking and planting 
arrangements be specified by the regulatory authority on the basis of 
local and regional conditions and after consultation with and approval 
by State agencies responsible for the administration of forestry and 
wildlife programs as required by 30 CFR 816/817.116(b)(3)(i). The West 
Virginia Division of Forestry has concurred with the State's tree 
stocking and groundcover standards at CSR 38-2-9.8.g.
    However, OSM maintains that the Wildlife Resources Section still 
has to concur with the wildlife planting arrangement standards. The 
WVDEP submitted the MOA in response to that part of the outstanding 30 
CFR Part 732 notification and, as discussed below, to satisfy part of 
an outstanding required amendment at 30 CFR 948.16(ooooo).
    The Federal regulations at 30 CFR 948.16(ooooo) provide that the 
WVDEP must consult with and obtain the approval of the West Virginia 
Division of Forestry and the Wildlife Resources Section of the West 
Virginia Division of Natural Resources on the new stocking standards 
and planting arrangements for Homesteading at CSR 38-2-7.5.o.2. The 
submission of the MOA is to resolve the part of the required amendment 
relating to planting arrangements. The State also revised its rules 
earlier at CSR 38-2-9.3.g to provide that a professional wildlife 
biologist employed by the Division of Natural Resources must develop 
the planting plan. OSM approved that revision in the Federal Register 
on February 8, 2005 (70 FR 6582). At the time of submission, WVDEP 
advised OSM that it had consulted with the Division of Forestry 
concerning the stocking standards for Homesteading. According to WVDEP, 
the Division of Forestry would be submitting a letter explaining its 
position with regard to those stocking standards (Administrative Record 
Number WV-1423). On August 23, 2005, the Division of Forestry submitted 
a memorandum to WVDEP in support of the new stocking requirements for 
Homesteading. Specifically, the Division of Forestry agreed with the 
provisions at CSR 38-2-7.5.i.8, 7.5.l.4 and 7.5.o.2 regarding 
conservation easements, public nurseries, and survival rates and ground 
cover requirements at the time of bond release (Administrative Record 
Number WV-1428). The WVDEP submitted this memorandum to help satisfy 
the required program amendment at 30 CFR 948.16(ooooo).
    WVDEP also submitted the Permittee's Request for Release form dated 
March 2005 (Administrative Record Number WV-1424). This form is being 
submitted in response to an OSM 30 CFR Part 732 notification dated July 
22, 1997 (Administrative Record Number WV-1071). In that notification, 
OSM advised the State that the Federal regulations at 30 CFR 
800.40(a)(3) were amended to require that each application for bond 
release include a written, notarized statement by the permittee 
affirming that all applicable reclamation requirements specified in the 
permit have been completed. OSM notified WVDEP that the State 
regulations at CSR 38-2-12.2 do not contain such a requirement. In 
response, the State revised its bond release form by adding new item 
Number 11, which requires that all copies of the Permittee's Request 
For Release form include the following: ``11. A notarized statement by 
the permittee that all applicable reclamation requirements specified in 
the permit have been completed.''
    We announced receipt of the proposed amendment in the August 26, 
2005, Federal Register (70 FR 50244). 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-1429). We did not hold a hearing or a 
meeting because no one requested one. The public comment

[[Page 10766]]

period was to close on September 26, 2005. Prior to the close of the 
comment period, we received a request from the West Virginia Coal 
Association (WVCA) to extend the comment period for an additional five 
days (Administrative Record Number WV-1437). On September 26, 2005, we 
granted their request and extended the comment period through September 
30, 2005 (Administrative Record Number WV-1437). We received comments 
from one industry group and four Federal agencies.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment, except as discussed below. Any revisions that 
we do not specifically discuss below concern nonsubstantive, minor 
wording, editorial, or renumbering of sections changes, and are 
approved herein without discussion.

1. House Bill 2333

    HB 2333 amends the W. Va. Code by adding a new article Sections 22-
27-1 through 12 to provide as follows:

Article 27. Environmental Good Samaritan Act

22-27-1. Declaration of Policy and Purpose

    This article is intended to encourage the improvement of land 
and water adversely affected by mining, to aid in the protection of 
wildlife, to decrease soil erosion, to aid in the prevention and 
abatement of the pollution of rivers and streams, to protect and 
improve the environmental values of the citizens of this state and 
to eliminate or abate hazards to health and safety. It is the intent 
of the Legislature to encourage voluntary reclamation of lands 
adversely affected by mining. The purpose of this article is to 
improve water quality and to control and eliminate water pollution 
resulting from mining extraction or exploration by limiting the 
liability which could arise as a result of the voluntary reclamation 
of abandoned lands or the reduction and abatement of water 
pollution. This article is not intended to limit the liability of a 
person who by law is or may become responsible to reclaim the land 
or address the water pollution or anyone who by contract, order or 
otherwise is required to or agrees to perform the reclamation or 
abate the water pollution.

22-27-2. Legislative Findings

    The Legislature finds and declares as follows:
    (1) The state's long history of mining has left some lands and 
waters unreclaimed and polluted.
    (2) These abandoned lands and polluted waters are unproductive, 
diminish the tax base and are serious impediments to the economic 
welfare and growth of this state.
    (3) The unreclaimed lands and polluted waters present a danger 
to the health, safety and welfare of the people and the environment.
    (4) The state of West Virginia does not possess sufficient 
resources to reclaim all the abandoned lands and to abate the water 
pollution.
    (5) Numerous landowners, citizens, watershed associations, 
environmental organizations and governmental entities who do not 
have a legal responsibility to reclaim the abandoned lands or to 
abate the water pollution are interested in addressing these 
problems but are reluctant to engage in such reclamation and 
abatement activities because of potential liabilities associated 
with the reclamation and abatement activities.
    (6) It is in the best interest of the health, safety and welfare 
of the people of this state and the environment to encourage 
reclamation of the abandoned lands and abatement of water pollution.
    (7) That this act will encourage and promote the reclamation of 
these properties.

22-27-3. Definitions

    As used in this article unless used in a context that clearly 
requires a different meaning, the term:
    (a) ``Abandoned lands'' means land adversely affected by mineral 
extraction and left or abandoned in an unreclaimed or inadequately 
reclaimed condition.
    (b) ``Consideration'' means something of value promised, given 
or performed in exchange for something which has the effect of 
making a legally enforceable contract. For the purpose of this 
article, the term does not include a promise to a landowner to 
repair damage caused by a reclamation project or water pollution 
abatement project when the promise is made in exchange for access to 
the land.
    (c) ``Department'' means the West Virginia Department of 
Environmental Protection.
    (d) ``Eligible land'' means land adversely affected by mineral 
extraction and left or abandoned in an unreclaimed or inadequately 
reclaimed condition or causing water pollution and for which no 
person has a continuing reclamation or water pollution abatement 
obligation.
    (e) ``Eligible landowner'' means a landowner that provides 
access to or use of the project work area at no cost for a 
reclamation or water pollution abatement project who is not or will 
not become responsible under state or federal law to reclaim the 
land or address the water pollution existing or emanating from the 
land.
    (f) ``Eligible project sponsor'' means a person that provides 
equipment, materials or services at no cost or at cost for a 
reclamation or water pollution abatement project who is not or will 
not become responsible under state or federal law to reclaim the 
land or address the water pollution existing or emanating from the 
land.
    (g) ``Landowner'' means a person who holds either legal or 
equitable interest in real property.
    (h) ``Mineral'' means any aggregate or mass of mineral matter, 
whether or not coherent, which is extracted by mining. This 
includes, but is not limited to, limestone, dolomite, sand, gravel, 
slate, argillite, diabase, gneiss, micaceous sandstone known as 
bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore, 
vermiculite, clay and anthracite and bituminous coal.
    (i) ``Permitted activity site'' means a site permitted by the 
department of environmental protection under the provisions of 
article two, three or four of this chapter.
    (j) ``Person'' means a natural person, partnership, association, 
association members, corporation, an agency, instrumentality or 
entity of federal or state government or other legal entity 
recognized by law as the subject of rights and liabilities.
    (k) ``Project work area'' means that land necessary for a person 
to complete a reclamation project or a water pollution abatement 
project.
    (l) ``Reclamation project'' means the restoration of eligible 
land to productive use by regrading and revegetating the land to 
stable contours that blend in and complement the drainage pattern of 
the surrounding terrain with no highwalls, spoil piles or 
depressions to accumulate water, or to decrease or eliminate 
discharge of water pollution.
    (m) ``Water pollution'' means the man-made or man-induced 
alteration of the chemical, physical, biological and radiological 
integrity of water located in the state.
    (n) ``Water pollution abatement facilities'' means the methods 
for treatment or abatement of water pollution located on eligible 
lands. These methods include, but are not limited to, a structure, 
system, practice, technique or method constructed, installed or 
followed to reduce, treat or abate water pollution.
    (o) ``Water pollution abatement project'' means a plan for 
treatment or abatement of water pollution located on eligible lands.

22-27-4. Eligibility and Project Inventory

    (a) General rule.--An eligible landowner or eligible project 
sponsor who voluntarily provides equipment, materials or services at 
no charge or at cost for a reclamation project or a water pollution 
abatement project in accordance with the provisions of this article 
is immune from civil liability and may raise the protections 
afforded by the provisions of this article in any subsequent legal 
proceeding which is brought to enforce environmental laws or 
otherwise impose liability. An eligible landowner or eligible 
project sponsor is only entitled to the protections and immunities 
provided by this article after meeting all eligibility requirements 
and compliance with a detailed written plan of the proposed 
reclamation project or water pollution abatement project which is 
submitted to and approved by the department. The project plan shall 
include the objective of the project and a description of the work 
to be performed to accomplish the objective and shall, additionally, 
identify the project location, project boundaries, project 
participants and all landowners.
    (b) Notice.--The department shall give written notice by 
certified mail to adjacent property owners and riparian land owners

[[Page 10767]]

located downstream of the proposed project, provide Class IV public 
notice of the proposed project in a newspaper of general 
circulation, published in the locality of the proposed project, and 
shall give public notice in the state register. The project sponsor 
may also provide public notice. Any person having an interest which 
may be adversely affected by the proposed project has the right to 
file written objections to the department within thirty days after 
receipt of the written notice or within thirty days after the last 
publication of the Class IV notice. The department shall provide to 
the project sponsor a copy of each written objection received during 
the public comment period, which shall conclude at the expiration of 
the applicable thirty-day period provided for in this section.
    (c) Advice.--The department may provide advice to the landowner 
or to other interested persons based upon the department's knowledge 
and experience in performing reclamation projects and water 
pollution abatement projects.
    (d) Departmental review.--The department shall review each 
proposed reclamation project and approve the project if the 
department determines the proposed project:
    (1) Will result in the appropriate reclamation and regrading of 
the land according to all applicable laws and regulations;
    (2) Will result in the appropriate revegetation of the site;
    (3) Is not likely to result in pollution as defined in article 
eleven of this chapter; and
    (4) Is likely to improve the water quality and is not likely to 
make the water pollution worse.
    (e) Project inventory.--The department shall develop and 
maintain a system to inventory and record each project, the project 
location and boundaries, each landowner and each person identified 
in a project plan provided to the department. The inventory shall 
include the results of the department's review of the proposed 
project and, where applicable, include the department's findings 
under subsection (b), section ten of this article.
    (f) Appeal.--A person aggrieved by a department decision to 
approve or disapprove a reclamation project or a water pollution 
abatement project has the right to file an appeal with the 
environmental quality board under the provisions of article one, 
chapter twenty-two-b of this code.

22-27-5. Landowner Liability Limitation and Exceptions

    (a) General rule.--Except as specifically provided in 
subsections (b) and (c) of this section, an eligible landowner who 
provides access to the land, without charge or other consideration, 
which results in the implementation of a reclamation project or a 
water pollution abatement project:
    (1) Is immune from liability for any injury or damage suffered 
by persons working under the direct supervision of the project 
sponsor while such persons are within the project work area;
    (2) Is immune from liability for any injury to or damage 
suffered by a third party which arises out of or occurs as a result 
of an act or omission of the project sponsor which occurs during the 
implementation of the reclamation project or the water pollution 
abatement project;
    (3) Is immune from liability for any injury to or damage 
suffered by a third party which arises out of or occurs as a result 
of a reclamation project or a water pollution abatement project;
    (4) Is immune from liability for any pollution resulting from a 
reclamation project or water pollution abatement project;
    (5) Is immune from liability for the operation, maintenance or 
repair of the water pollution abatement facilities constructed or 
installed during the project unless the eligible landowner 
negligently damages or destroys the water pollution abatement 
facilities or denies access to the project sponsor who is 
responsible for the operation, maintenance or repair [sic] the water 
pollution abatement facilities.
    (b) Duty to warn.--The eligible landowner shall warn the project 
sponsor of known, latent, dangerous conditions located on the 
project work area which are not the subject of the reclamation 
project or the water pollution abatement project. Nothing in this 
article shall limit an eligible landowner's liability which results 
from the eligible landowner's failure to warn of such known, latent, 
dangerous conditions.
    (c) Exceptions to immunity.--Nothing in this article may limit 
an eligible landowner's liability which results from a reclamation 
project or water pollution abatement project and which would 
otherwise exist:
    (1) For injury or damage resulting from the landowner's acts or 
omissions which are reckless or constitute gross negligence or 
willful misconduct.
    (2) Where the landowner accepts or requires consideration for 
allowing access to the land for the purpose of implementing a 
reclamation project or water pollution abatement project or to 
operate, maintain or repair water pollution abatement facilities 
constructed or installed during a water pollution abatement project.
    (3) For the landowner's unlawful activities.
    (4) For damage to adjacent landowners or downstream riparian 
landowners which results from a reclamation project or water 
pollution abatement project where written notice or public notice of 
the proposed project was not provided.

22-27-6. Project Sponsor Liability Limitation and Exceptions

    (a) General rule.--Except as specifically provided in subsection 
(b) of this section, a project sponsor who provides equipment, 
materials or services at no cost or at cost for a reclamation 
project or a water pollution abatement project:
    (1) Is immune from liability for any injury to or damage 
suffered by a person which arises out of or occurs as a result of 
the water pollution abatement facilities constructed or installed 
during the water pollution abatement project;
    (2) Is immune from liability for any pollution emanating from 
the water pollution abatement facilities constructed or installed 
during the water pollution abatement project unless the person 
affects an area that is hydrologically connected to the water 
pollution abatement project work area and causes increased pollution 
by activities which are unrelated to the implementation of a water 
pollution abatement project. Provided that the project sponsor 
implements, operates, and maintains the project in accordance with 
the plans approved by the department;
    (3) Is immune from liability for the operation, maintenance and 
repair of the water pollution abatement facilities constructed or 
installed during the water pollution abatement project.
    (b) Exceptions.--
    (1) Nothing in this article shall limit in any way the liability 
of a project sponsor which liability results from the reclamation 
project or the water pollution abatement project and which would 
otherwise exist:
    (A) For injury or damage resulting from the project sponsor's 
acts or omissions which are reckless or constitute gross negligence 
or willful misconduct.
    (B) For the person's unlawful activities.
    (C) For damages to adjacent landowners or downstream riparian 
landowners which result from a reclamation project or a water 
pollution abatement project where written notice or public notice of 
the proposed project was not provided.
    (2) Nothing in this article shall limit in any way the liability 
of a person who the department has found to be in violation of any 
other provision or provisions of this chapter.

22-27-7. Permits and Zoning

    Nothing in this article may be construed as waiving any existing 
permit requirements or waiving any local zoning requirements.

22-27-8. Relationship to Federal and State Programs

    The provisions of this article shall not prevent the department 
from enforcing requirements necessary or imposed by the federal 
government as a condition to receiving or maintaining program 
authorization, delegation, primacy or federal funds.

22-27-9. General Permits

    If the department determines it will further the purposes of 
this article, the department may issue a general permit for each 
reclamation project or water pollution abatement project, which 
shall:
    (1) Encompass all of the activities included in the reclamation 
project or water pollution abatement project.
    (2) Be issued in place of any individual required stream 
encroachment, earth disturbance or national pollution discharge 
elimination system permits.

22-27-10. Exceptions

    (a) General rule.--Any person who under existing law shall be or 
may become responsible to reclaim the land or treat or abate the 
water pollution or any person who for consideration or who receives 
some other benefit through a contract or any person who through a 
consent order and agreement or [sic] is ordered to perform or 
complete reclamation or treat or abate water pollution as well as a 
surety which provided a bond

[[Page 10768]]

for the site is not eligible nor may receive the benefit of the 
protections and immunities available under this article.
    (b) Projects near mining or coal refuse sites.--This article 
does not apply to a reclamation project or a water pollution 
abatement project that is located adjacent to, hydrologically 
connected to or in close proximity to a site permitted under 
articles two, three or four of this chapter unless:
    (1) The reclamation project or water pollution abatement project 
is submitted to the department in writing before the project is 
started; and
    (2) The department finds:
    (A) The reclamation project or the water pollution abatement 
project will not adversely affect the permittee's obligations under 
the permit and the applicable law;
    (B) The activities on the project work area cannot be used by 
the permittee to avoid the permittee's reclamation or water 
pollution treatment or abatement obligations; and
    (3) The department issues a written notice of its findings and 
the approval of the project.
    (c) Projects in lieu of civil or administrative penalties.--This 
article shall not apply to a reclamation project or a water 
pollution abatement project that is performed in lieu of paying 
civil or administrative penalties.

22-27-11. Water Supply Replacement

    A public or private water supply affected by contamination or 
the diminution caused by the implementation of a reclamation project 
or the implementation of a water pollution abatement project shall 
be restored or replaced by the department with an alternate source 
of water adequate in quantity and quality for the purposes served by 
the water supply.

22-27-12. Rules

    The department may propose legislative rules in accordance with 
article three, chapter twenty-nine-a of this code as needed to 
implement the provisions of this article.

    There are no specific provisions under SMCRA relating to the 
voluntary reclamation of lands affected by mining activities. Because 
this article also relates to the voluntary treatment of water pollution 
from abandoned mined lands, we solicited comments from the U.S. 
Environmental Protection Agency (EPA). Like SMCRA, the Clean Water Act 
(CWA) does not contain comparable provisions. However, EPA recently 
launched the Good Samaritan Initiative (Administrative Record Number 
WV-1432). This is a new agency-wide effort to foster greater 
collaboration to accelerate the restoration of watersheds and fisheries 
threatened by abandoned mine runoff. EPA is pioneering the Good 
Samaritan Initiative as a tool to identify an individual's rights and 
responsibilities related to the voluntary clean up of abandoned mines 
and to protect such volunteers against pre-existing liabilities. 
Specific comments from EPA regarding the proposed State legislation are 
contained in ``Section IV. Summary and Disposition of Comments.'' While 
this legislation has no direct Federal counterpart, we do not find any 
of the proposed State provisions presented above to be inconsistent 
with the purpose and intent of SMCRA, and therefore it can be approved. 
Furthermore, as discussed in Section IV, given EPA's concern about the 
possible legal effects of the proposed State legislation on EPA's 
authority under the CWA, we find that State's Environmental Good 
Samaritan Act at W. Va. Code 22-27-1 et seq. is only approved to the 
extent that none of the provisions therein can be interpreted as 
abrogating the authority or jurisdiction of the EPA. Section 702(a) of 
SMCRA provides that nothing in the Act can be construed as superseding, 
amending, modifying, or repealing other Federal laws or any regulations 
promulgated thereunder.

2. Committee Substitute for House Bill 2723

    This bill authorizes amendments to the West Virginia Surface Mining 
Reclamation Rules at CSR 38-2 and the Surface Mining Blasting Rule at 
CSR 199-1.
Amendments to CSR 38-2
    a. CSR 38-2-2.92. This definition is new, and provides as follows:

    2.92 Previously mined areas means land affected by surface 
mining operations prior to August 3, 1977, that has not been 
reclaimed to the standards of this rule.

    In its amendment, the WVDEP stated that the revision is intended to 
resolve an outstanding 30 CFR Part 732 issue relating to previously 
mined areas as contained in a letter from OSM dated July 22, 1997 
(Administrative Record Number WV-1071). We find that the State's new 
definition of ``previously mined areas'' is substantively identical to 
the Federal definition of ``previously mined area'' at 30 CFR 701.5, 
and it can be approved.
    b. CSR 38-2-3.29.a. This provision concerns incidental boundary 
revisions (IBRs) and is amended by deleting the following language from 
the end of the first sentence: ``is the only practical alternative to 
recovery of unanticipated reserves or necessary to enhance reclamation 
efforts or environmental protection.''
    In its submittal of this amendment, the WVDEP stated that the 
amendment is intended to delete language that was not approved by OSM 
(see the February 9, 1999, Federal Register, 64 FR 6201, 6208). In the 
February 9, 1999, notice, OSM found the language to be inconsistent 
with the intent of section 511(a)(3) of SMCRA and 30 CFR 774.13(d) of 
the Federal regulations, which pertain to IBR's.
    As amended, CSR 38-2-3.29.a provides as follows:

    3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to 
minor shifts or extensions of the permit boundary into non-coal 
areas or areas where any coal extraction is incidental to or of only 
secondary consideration to the intended purpose of the IBR or where 
it has been demonstrated to the satisfaction of the Secretary that 
limited coal removal on areas immediately adjacent to the existing 
permit. IBRs shall also include the deletion of bonded acreage which 
is overbonded by another valid permit and for which full liability 
is assumed in writing by the successive permittee. Incidental 
Boundary Revisions shall not be granted for any prospecting 
operations, or to abate a violation where encroachment beyond the 
permit boundary is involved, unless an equal amount of acreage 
covered under the IBR for encroachment is deleted from the permitted 
area and transferred to the encroachment area.

    We find that, with this revision, proposed CSR 38-2-3.29.a is 
consistent with and no less effective than the Federal regulations at 
30 CFR 774.13(d), and it can be approved. The proposed deletion, 
however, does leave the sentence incomplete; and we advised WVDEP that 
it should be corrected. The State acknowledged that the rest of the 
sentence should have been deleted. Therefore, we are approving this 
provision with the understanding that the State will insert a period 
after ``IBR'' and delete the words, ``or where it has been demonstrated 
to the satisfaction of the Secretary that limited coal removal on areas 
immediately adjacent to the existing permit.''
    c. CSR 38-2-5.4.a. This provision concerns general sediment control 
provisions, and it is amended by adding language to incorporate by 
reference the U.S. Department of Agriculture, Soil Conservation Service 
Technical Release No. 60, ``Earth Dams and Reservoirs.'' As amended, 
Subsection 5.4.a provides as follows:

    Sediment control or other water retention structures shall be 
constructed in appropriate locations for the purposes of controlling 
sedimentation. All runoff from the disturbed area shall pass through 
a sedimentation control system. All such systems or other water 
retaining structures used in association with the mining operation 
shall be designed, constructed, located, maintained, and used in 
accordance with this rule and in such a manner as to minimize 
adverse hydrologic impacts in the permit and adjacent areas, to 
prevent material damage outside the permit area and to assure safety 
to the public. The U.S. Department of Agriculture, Soil Conservation 
Service Technical Release No. 60 (210-VI-TR60, October 1985), 
``Earth

[[Page 10769]]

Dams and Reservoirs,'' Technical Release No. 60 (TR-60) is hereby 
incorporated by reference. Copies may be obtained from the National 
Technical Information Service (NTIS), 5285 Port Royal Road, 
Springfield, Virginia 22161, order No. PB 87-57509/AS. Copies can be 
inspected at the OSM Headquarters Office, Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, 1951 
Constitution Avenue, NW., Washington, DC, or at the Office of the 
Federal Register, 800 North Capitol Street, NW., suite 700, 
Washington, DC.

    In this revision, the State added language referencing ``Earth Dams 
and Reservoirs'' Technical Release No. 60 (TR-60) (210-VI-TR60, October 
1985). This new language is consistent with the Federal citation of TR-
60 at 30 CFR 816/817.49(a)(1) and with the terms of a Part 732 letter 
that OSM sent to the State dated July 22, 1997, in accordance with the 
Federal regulations at 30 CFR 732.17(c). In that 732 letter, OSM asked 
the State to resolve issues pertaining to impoundments and criteria 
that the impoundments must comply with, especially impoundments meeting 
Class B or C criteria for dams at TR-60. We must note that due to a 
name change, the former Soil Conservation Service is now the Natural 
Resources Conservation Service (NRCS). We must also note that 
publication TR-60 has been revised, and the current version is Revised 
Amendment 1, TR-60A, dated October 1990. The WVDEP's Web page at http://www.wvdep.org/item.cfm?ssid=9&ss1id=710 contains a copy of TR-60, and 
it includes the NRCS revisions that were adopted in October 1990 
(Administrative Record Number WV-1438). Therefore, because the State 
intends to require that the revised version of TR-60 be used by 
operators when designing and constructing sediment control or other 
water retention structures within the State, we find that the proposed 
amendment is consistent with and no less effective than the Federal 
regulations at 30 CFR 816/817.49(a)(1), and it can be approved.
    d. CSR 38-2-5.4.b.9. This provision concerns the design and 
construction of freeboards of sediment control structures, and is 
amended by adding a proviso that impoundments meeting the Class B or C 
criteria for dams in ``Earth Dams and Reservoirs'', TR-60 shall comply 
with the freeboard hydrograph criteria in ``Minimum Emergency Spillway 
Hydrologic Criteria'' table in TR-60. As amended, Subsection 5.4.b.9 
provides as follows:

    5.4.b.9. Provide adequate freeboard to resist overtopping by 
waves or sudden increases in volume and adequate slope protection 
against surface erosion and sudden drawdown. Provided, however, 
impoundments meeting the Class B or C criteria for dams in ``Earth 
Dams and Reservoirs'', TR-60 shall comply with the freeboard 
hydrograph criteria in ``Minimum Emergency Spillway Hydrologic 
Criteria'' table in TR-60.

    We find that, as amended, CSR 38-2-5.4.b.9 is substantively 
identical to the Federal regulations at 30 CFR 816/817.49(a)(5) 
concerning freeboard design and can be approved. The amendment also 
satisfies a portion of the 732 letter that OSM sent to the State dated 
July 22, 1997. As we discussed in Finding 2.c. above, WVDEP's Web page 
contains a copy of TR-60, and it includes the revisions that were 
adopted in October 1990. Therefore, it is apparent that the State 
intends to require that the revised version of TR-60 be used when 
designing and constructing sediment control or other water retention 
structures within the State. We note that, existing subsection CSR 38-
2-22.4.h.1, and in a separate rulemaking proposed CSR 38-4-7.1.g, 
provide that any open channel spillway designed for less than 100 
percent probable maximum precipitation (PMP) must be provided with a 
freeboard above the maximum water surface using the equation 1+.025vd1/
3. According to State officials, the equation provides for a more 
simplistic freeboard design standard where ``v'' represents flow 
velocity and ``d'' represents flow depth of the design storm in the 
channel. TR-60 requires a calculation of freeboard design by 
surcharging the design storm. Given the proposed requirements, it is 
apparent that the State requires compliance with the freeboard design 
standards at both CSR 38-2-5.4.b.9 and CSR 38-2-22.4.h.1 (and proposed 
CSR 38-4-7.1.g.). According to State officials, there is no way to 
determine which standard (freeboard hydrograph or freeboard equation) 
is more stringent. Instead, this assessment must be determined on a 
case-by-case basis during permit preparation and resulting review. 
Consequently, the higher of those standards will always apply, and the 
lesser standard will automatically be complied with. Upon approval, the 
State will consider developing an interpretive policy that may include 
variable descriptions of the freeboard equation to further clarify this 
requirement.
    e. CSR 38-2-5.4.b.10. This provision concerns minimum static safety 
factor, and has been amended by deleting language in the first sentence 
related to loss of life or property damage, and adding in its place 
language concerning impoundments meeting the Class B or C criteria for 
dams contained in ``Earth Dams and Reservoirs,'' TR-60. As amended, 
Subsection 5.4.b.10 provides as follows:

    5.4.b.10. Provide that an impoundment meeting the size or other 
criteria of 30 CFR 77.216(a) or W. Va. Code [Section] 22-14 et seq., 
or Impoundments meeting the Class B or C criteria for dams contained 
in ``Earth Dams and Reservoirs'', TR-60, shall have a minimum static 
safety factor of 1.5 for a normal pool with steady state seepage 
saturation conditions, and a seismic safety factor of at least 1.2. 
Impoundments not meeting the size or other criteria of 30 CFR 
77.216(a) or W. Va. Code [Section] 22-14 et seq., except for a coal 
mine waste impounding structure, and located where failure would not 
be expected to cause loss of life or serious property damage shall 
have a minimum static safety factor of 1.3 for a normal pool with 
steady state seepage saturation conditions.

    The Federal regulations at 30 CFR 816/817.49(a)(4)(i), concerning 
impoundment stability, provide that an impoundment meeting the Class B 
or C criteria for dams in TR-60, or the size or other criteria of 30 
CFR 77.216(a), shall have a minimum static safety factor of 1.5 for a 
normal pool with steady state seepage saturation conditions, and a 
seismic safety factor of at least 1.2. Therefore, the amendment renders 
CSR 38-2-5.4.b.10 consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(4)(i) and can be approved. 
However, existing language at CSR 38-2-5.4.b.10 also provides that 
impoundments not meeting the size or other criteria of 30 CFR 77.216(a) 
or W. Va. Code section 22-14 et seq., except for a coal mine waste 
impounding structure, and located where failure would not be expected 
to cause loss of life or serious property damage shall have a minimum 
static safety factor of 1.3 for a normal pool with steady state seepage 
saturation conditions. That language does not appear to be consistent 
with the Federal regulations at 30 CFR 816/817.49(a)(4)(ii), which 
provides that impoundments not included in 816/817.49(a)(4)(i), except 
for a coal mine waste impounding structure, shall have a minimum static 
safety factor of 1.3 for a normal pool with steady state seepage 
saturation conditions or meet the requirements of 30 CFR 780.25(c)(3). 
The State's language does not specify which static safety factor, if 
any, applies to TR-60 Class A impoundments. The Federal regulations 
provide that Class A impoundments, which do not meet the Class B or C 
criteria for dams in TR-60, must have a minimum static safety factor of 
1.3. The State maintains that the last portion of this provision is 
applicable to impoundments not

[[Page 10770]]

meeting the Class B or C criteria in TR-60 (Administrative Record 
Number WV-1438). Because the proposed amendment clearly provides for a 
static safety factor of 1.5 for impoundments that meet the size or 
other criteria of 30 CFR 77.216(a) and impoundments meeting the Class B 
or C criteria for dams in TR-60, it is our understanding that CSR 38-2-
5.4.b.10 provides for a 1.3 minimum static safety factor for all other 
impoundments that do not meet the size or other criteria of 30 CFR 
77.216(a) or are not impoundments that meet the Class B or C criteria 
for dams in TR-60, and are not coal mine waste impounding structures. 
Therefore, we find that proposed CSR 38-2-5.4.b.10 is no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(4), and it can be 
approved. Our approval of proposed CSR 38-2-5.4.b.10 is based upon our 
understanding discussed above.
    As amended, CSR 38-2-5.4.b.10 also satisfies a portion of the July 
22, 1997, 732 letter that OSM sent to the State. As we discussed above 
in Finding 2.c, WVDEP's Web page contains a copy of TR-60, and it 
includes the revisions that were adopted in October 1990. Therefore, 
because the State intends to require that the revised version of TR-60 
be used by operators when designing and constructing sediment control 
or other water retention structures within the State, we find that the 
proposed reference to TR-60 is consistent with and no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(4)(i).
    f. CSR 38-2-5.4.b.12. This provision provides for stable 
foundations of sediment control structures, and it has been amended by 
adding language at the end of the final sentence to clarify that the 
laboratory testing of foundation material shall be to determine the 
design requirements for foundation stability. As amended, Subsection 
5.4.b.12 provides as follows:

    5.4.b.12. Provide for stable foundations during all phases of 
construction and operation and be designed based on adequate and 
accurate information on the foundation conditions. For structures 
meeting the criteria of paragraph 5.4.b.10 of this subdivision, 
provide foundation investigations and any necessary laboratory 
testing of foundation material, shall be performed to determine the 
design requirements for foundation stability.

    It is our understanding that the reference to CSR 38-2-5.4.b.10 in 
the proposed provision means that foundation investigations and any 
necessary laboratory testing of foundation materials must be performed 
for impoundments that meet the Class B or C criteria for dams at TR-60, 
the size or other criteria of the Mine Safety and Health Administration 
(MSHA) at 30 CFR 77.216(a), or the West Virginia Dam Control Act. Thus, 
foundation investigations or laboratory testing of foundation material 
for Class A dams will not be required by this subsection. We find that 
as amended, CSR 38-2-5.4.b.12 is consistent with and no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(6) concerning 
foundation testing for impoundments, and can be approved. Our approval 
of this provision is based upon our understanding discussed above.
    g. CSR 38-2-5.4.c.7. This provision is new and provides as follows:

    5.4.c.7. Impoundments meeting the Class B or C criteria for dams 
in Earth Dams and Reservoirs, TR-60 shall comply with the following: 
(1) ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-
60; (2) the emergency spillway hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60, or larger 
event specified by the Secretary; and (3) and the requirements of 
this subdivision.

    We find that the proposed language at CSR 38-2-5.4.c.7 is 
substantively identical to and no less effective than the Federal 
regulations at 30 CFR 816/817.49(a)(1), 30 CFR 816/817.49(a)(5), and 30 
CFR 816/817.49(a)(9)(ii)(A), and it can be approved. The proposed 
amendment also satisfies a portion of the July 22, 1997, 732 letter 
that OSM sent to the State. As we discussed above in Finding 2.c, 
WVDEP's Web page contains a copy of TR-60, and it includes the 
revisions that were adopted in October 1990. Therefore, because the 
State intends to require that the revised version of TR-60 be used by 
operators when designing and constructing sediment control or other 
water retention structures within the State, we find that the proposed 
reference to TR-60 is consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(1).
    In addition, we note that the State rules at CSR 38-2-5.4.c do not 
require design plans for structures that meet the Class B or C criteria 
for dams in TR-60 to include a stability analysis, as provided by 30 
CFR 780.25(f). The stability analysis must include, but is not limited 
to, strength parameters, pore pressures, and long-term seepage 
conditions. In addition, the design plan must contain a description of 
each engineering design assumption and calculation with a discussion of 
each alternative considered in selecting the specific design parameters 
and construction methods. CSR 38-2-5.4.c.6.D, 38-4-10 and 38-4-11.4 
require stability analyses for impoundments that meet the size or other 
criteria of MSHA or the West Virginia Dam Control Act standards. 
However, State rules at CSR 38-2-5.4.c.5 and 5.4.c.6 do not 
specifically require a stability analysis to be conducted for Class B 
or C impoundments. In addition, they do not specify what must be 
included in the stability analysis and the design plans for such 
structures. According to WVDEP (Administrative Record Number WV-1438), 
it is necessary for permit applicants to perform a stability analysis 
to demonstrate that impoundments that meet Class B or C criteria for 
dams in TR-60 are designed to have a static safety factor of 1.5 with 
steady state seepage saturation conditions and a seismic safety factor 
of 1.2. Steady state seepage analysis techniques include flow nets, 
finite element analyses, or finite difference analyses. To conduct a 
steady state seepage analysis, State officials say a set of factors is 
needed, which include strength and pore pressure. Saturated conditions 
or long-term seepage condition is just steady seepage at maximum 
storage pool. Therefore, to demonstrate that Class B or C impoundments 
are designed to have a static safety factor of 1.5 with a steady state 
seepage saturation, the permit applicant would have to provide 
information required by Subsection 5.4.c.6.D. Therefore, CSR 38-2-5.4.c 
remains approved with the understanding that stability analyses will be 
conducted for all structures that meet the Class B or C criteria for 
dams in TR-60 as required by 30 CFR 780.25(f).
    h. CSR 38-2-5.4.d.4. This provision concerns design and 
construction certification of coal refuse impoundments and embankment 
type impoundments and has been amended by adding language concerning 
impoundments meeting the Class B or C criteria for dams. As amended, 
Subsection 5.4.d.4 provides as follows:

    5.4.d.4. Design and construction certification of coal refuse 
impoundments and embankment type impoundments meeting or exceeding 
the size requirements or other criteria of Federal MSHA regulations 
at 30 CFR 77.216 (a) or impoundments meeting the Class B or C 
criteria for dams in Earth Dams and Reservoirs, TR-60 may be 
performed only by a registered professional engineer experienced in 
the design and construction of impoundments.

    The Federal regulations at 30 CFR 816/817.49(a)(3) provide that the 
design of impoundments shall be certified in accordance with 30 CFR 
780.25(a). The Federal regulations at 30 CFR 780.25(a)

[[Page 10771]]

provide that impoundments meeting the Class B or C criteria for dams in 
TR-60 shall comply with the requirements of 30 CFR 780.25 for 
structures that meet or exceed the size or other criteria of MSHA. Each 
detailed design plan for a structure that meets or exceeds the size or 
other criteria of MSHA regulations at 30 CFR 77.216(a) shall, as 
required by 30 CFR 780.25(a)(2)(i), be prepared by, or under the 
direction of, and certified by a qualified registered professional 
engineer with assistance from experts in related fields such as 
geology, land surveying, and landscape architecture.
    The West Virginia regulations at CSR 38-2-5.4.d.1, concerning 
certification, provide that prior to any surface mining activities in 
the component drainage area of a permit controlled by a sediment 
control structure, that specific structure shall be certified as to 
construction in accordance with the plans, designs, and specifications 
set forth in the preplan, or in accordance with as-built plans. The 
West Virginia regulations at CSR 38-2-5.4.d.4, as amended here, limit 
such design and construction certification to registered professional 
engineers experienced in the design and construction of impoundments 
when the designs concern MSHA impoundment regulations at 30 CFR 
77.216(a) or when the impoundments meet the Class B or C criteria at 
TR-60.
    We must note, however, that the State's requirements at Subsection 
3.6.h.5 provide that only the design plan for impoundments that meet 
the size or storage capacity of the West Virginia Dam Control Act must 
be prepared by, or under the direction of, and certified by a qualified 
registered professional engineer. The proposed rule at Subsection 
5.4.d.4 does not specifically require the design plan to be prepared by 
a registered professional engineer. The proposed rule only requires the 
design to be certified by a registered professional engineer. However, 
given that certification of the design by a registered professional 
engineer is required, we are approving Subsection 5.4.d.4 with the 
understanding that design plans for impoundments that meet the Class B 
or C criteria for dams in TR-60 and meet or exceed the size or other 
criteria of MSHA at 30 CFR 77.216(a) will be prepared by, or under the 
direction of, and certified by a registered professional engineer as 
provided by 30 CFR 780.25(a)(2).
    Furthermore, we are approving Subsection 5.4.d.3 with the 
understanding that the design plans for all other structures not 
included in Subsections 3.6.h.5 or 5.4.d.4 will be prepared by, or 
under the direction of, and certified by a registered professional 
engineer or licensed land surveyor as provided by 30 CFR 780.25(a)(3). 
In addition, as provided by 30 CFR 780.25(a)(2), the detailed design 
plan for an impoundment that meets the Class B or C criteria for dams 
in TR-60 or meets or exceeds the size or other criteria of MSHA at 30 
CFR 77.216(a) must include (1) A geotechnical investigation, (2) design 
and construction requirements for the structure, (3) an operation and 
maintenance of the structure, and (4) a timetable and plans for removal 
of the structure. Similar design plan requirements at 30 CFR 
780.25(a)(3) apply to impoundments not included in paragraph (a)(2). 
Such requirements are not specifically provided for in Subsection 5.4. 
However, similar design requirements are set forth at Subsection 3.6.h. 
Therefore we are approving Subsection 5.4 with the understanding that 
the design plan requirements at Subsection 3.6.h apply to those 
impoundments that meet the Class B or C criteria for dams in TR-60 or 
meet or exceed the size or other criteria of MSHA at 30 CFR 77.216(a) 
as provided by 30 CFR 780.25(a)(2). We are also approving Subsection 
5.4 to the extent that the design plan requirements at Subsection 3.6.h 
apply to all other impoundments not identified above as provided by 30 
CFR 780.25(a)(3). In summary, we find that as amended, CSR 38-2-5.4.d.4 
is consistent with and no less effective than the Federal regulations 
at 30 CFR 780.25(a)(2) and (a)(3) and 30 CFR 816/817.49(a)(3) 
concerning the design and certification of impoundments, and it can be 
approved based upon our understanding discussed above.
    The proposed amendment at CSR 38-2-5.4.d.4 also satisfies a portion 
of the July 22, 1997, 732 letter that OSM sent to the State. As we 
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990. 
Therefore, because the State intends to require that the revised 
version of TR-60 be used by operators when designing and constructing 
sediment control or other water retention structures within the State, 
we find that the proposed reference to TR-60 is consistent with and no 
less effective than the Federal regulations at 30 CFR 816/817.49(a)(1).
    i. CSR 38-2-5.4.e.1. This provision concerns the inspection of 
impoundments and sediment control structures, and has been amended by 
adding language concerning impoundments meeting the Class B or C 
criteria for dams in TR-60. As amended, Subsection 5.4.e.1 provides as 
follows:

    5.4.e.1. A qualified registered professional engineer or other 
qualified professional specialist, under the direction of the 
professional engineer, shall inspect each impoundment or sediment 
control structure provided, that a licensed land surveyor may 
inspect those impoundments or sediment control or other water 
retention structures which do not meet the size or other criteria of 
30 CFR 77.216(a), Impoundments meeting the Class B or C criteria for 
dams in Earth Dams and Reservoirs, TR-60 or W. Va. Code [Section] 
22-14 et seq., and which are not constructed of coal processing 
waste or coal refuse. The professional engineer, licensed land 
surveyor, or specialist shall be experienced in the construction of 
impoundments and sediment control structures.

    The Federal regulations at 30 CFR 816/817.49(a)(11)(iv) provide 
that a qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the Class B or C 
criteria of TR-60, the size or other criteria of 30 CFR 77.216(a), or 
is not a coal mine waste impounding structure covered by the Federal 
regulations at 30 CFR 816.84. The proposed amendment to CSR 38-2-
5.4.e.1 provides the West Virginia program with a counterpart to the 
Federal regulations at 30 CFR 816/817.49(a)(11)(iv). We note, however, 
that as written, CSR 38-2-5.4.e.1 is not perfectly clear as to its 
intended meaning. Specifically, the phrase ``Impoundments meeting'' 
confuses the intended meaning of the proviso that identifies the 
impoundments that a licensed land surveyor may not inspect. It is our 
understanding that the proviso at CSR 38-2-5.4.e.1 means that a 
licensed land surveyor may not inspect impoundments or sediment control 
or other water retention structures which meet the size or other 
criteria of 30 CFR 77.216(a), the Class B or C criteria for dams in TR-
60, or W.Va. Code section 22-14 et seq., and which are constructed of 
coal processing waste or coal refuse. Therefore, in accordance with our 
understanding discussed above, we find that CSR 38-2-5.4.e.1 is 
consistent with and no less effective than the Federal regulations at 
30 CFR 816/817.49(a)(11)(iv), and it can be approved, except for the 
words ``Impoundments meeting'' which are not approved.
    The proposed amendment at CSR 38-2-5.4.e.1 also satisfies a portion 
of the 732 letter that OSM sent the State on July 22, 1997. As we 
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990. 
Therefore, because the State intends to require that the revised 
version of TR-60 be used by operators

[[Page 10772]]

when designing and constructing sediment control or other water 
retention structures within the State, we find that the proposed 
reference to TR-60 is consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(1).
    j. CSR 38-2-5.4.f. This provision concerns examinations of 
embankments, and it has been amended by adding language concerning 
impoundments meeting the Class B or C criteria for dams in TR-60. As 
amended, Subsection 5.4.f provides as follows:

    5.4.f. Examinations. Embankments subject to Federal MSHA 
regulations at 30 CFR 77.216 or impoundments meeting the Class B or 
C criteria for dams in Earth Dams and Reservoirs, TR-60 must be 
examined in accordance with 77.216-3 of said regulations. Other 
embankments shall be examined at least quarterly by a qualified 
person designated by the operator for appearance of structural 
weakness and other hazardous conditions. Examination reports shall 
be retained for review at or near the operation.

We find that, as amended, CSR 38-2-5.4.f is substantively identical to 
the Federal regulations at 30 CFR 816/817.49(a)(12) concerning the 
examination of impoundments, and it can be approved.
    The proposed amendment at CSR 38-2-5.4.f also satisfies a portion 
of the July 22, 1997, 732 letter that OSM sent to the State. As we 
discussed above in Finding 2.c, WVDEP's web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990. 
Therefore, because the State intends to require that the revised 
version of TR-60 be used by operators when designing and constructing 
sediment control or other water retention structures within the State, 
we find that the proposed reference to TR-60 is consistent with and no 
less effective than the Federal regulations at 30 CFR 816/817.49(a)(1).
    k. CSR 38-2-7.4.b.1.A.1. This provision concerns the development of 
a planting plan and long-term management plan for commercial forestry. 
The first sentence of this provision is amended by clarifying that the 
professional forester charged with developing the commercial forestry 
planting and the long-term management plan must be a West Virginia 
registered professional forester. The provision is to ensure compliance 
with WV Code 30-19-1 et seq. regarding State registered foresters and 
to clarify that the development of planting plans for mountaintop 
removal mining operations may only be done by a registered State 
forester. SMCRA at section 515(c)(3)(B) and the Federal regulations at 
30 CFR 785.14(c) require that an applicant for a mountaintop removal 
mining permit present specific plans for the proposed postmining use. 
We find that the proposed requirement that the professional forester 
specified at CSR 38-2-7.4.b.1.A.1 must be a West Virginia professional 
forester does not render the provision inconsistent with those Federal 
requirements, and it can be approved.
    l. CSR 38-2-7.4.b.1.A.3. This provision concerns the commercial 
species planting plan for commercial forestry. It is amended in the 
first sentence to clarify that the registered professional forester 
must be a West Virginia registered professional forester. The provision 
is to ensure compliance with WV Code 30-19-1 et seq. regarding State 
registered foresters and to clarify that the development of planting 
plans for mountaintop removal mining operations may only be done by a 
registered State forester. SMCRA at section 515(c)(3)(B) and the 
Federal regulations at 30 CFR 785.14(c) require that an applicant for a 
mountaintop removal mining permit present specific plans for the 
proposed postmining use. We find that the proposed requirement that the 
professional forester specified at CSR 38-2-7.4.b.1.A.3 must be a West 
Virginia professional forester does not render the provision 
inconsistent with those Federal requirements, and it can be approved.
    m. CSR 38-2-7.4.b.1.A.3.(b). This provision concerns the creation 
of a certified geology map relating to commercial forestry areas. The 
provision is amended by revising the kinds of information pertaining to 
physical and chemical properties of strata that must be provided in the 
permit application. As amended, Subsection 7.4.b.1.A.3.(b) provides as 
follows:

    7.4.b.1.A.3.(b). An approved geologist shall create a certified 
geology map showing the location, depth, and volume of all strata in 
the mined area, the physical and chemical properties of each stratum 
to include rock texture, pH, potential acidity and alkalinity. For 
each stratum proposed as soil medium, the following information 
shall also be provided: total soluble salts, degree of weathering, 
extractable levels of phosphorus, potassium, calcium, magnesium, 
manganese, and iron and other properties required by the Secretary 
to select best available materials for mine soils.

    In its submittal of its amendment to this provision, the WVDEP 
stated that the amendment is to clarify that only the material proposed 
to be the resulting soil medium needs the additional analyses. The 
State acknowledged that each stratum will be tested in accordance with 
acid-base accounting standards, but only the topsoil substitute 
requires further testing (Administrative Record Number WV-1438). SMCRA 
and the Federal regulations do not contain specific counterparts to the 
amended provision. However, when an applicant proposes to use selected 
overburden material as a supplement or substitute for topsoil, 
additional analyses, trials, and tests are required as provided by 30 
CFR 779.21(b). Based on that understanding, we find that as amended, 
CSR 38-2-7.4.b.1.A.3.(b) is not inconsistent with the requirements of 
SMCRA section 515(c) and the Federal regulations at 30 CFR 785.14 
concerning mountaintop removal mining operations, and it can be 
approved.
    n. CSR 38-2-7.4.b.1.A.4. This provision concerns the commercial 
forestry long-term management plan, and it is amended in the first 
sentence by adding the words ``West Virginia'' immediately before the 
words ``registered professional forester.'' The provision is to ensure 
compliance with WV Code 30-19-1 et seq. regarding State registered 
foresters and to clarify that the development of the long-term 
management plan for a mountaintop removal mining operation may only be 
done by a registered State forester. SMCRA at section 515(c)(3)(B) and 
the Federal regulations at 30 CFR 785.14(c) require that an applicant 
for a mountaintop removal mining permit present specific plans for the 
proposed postmining use. We find that the proposed requirement that the 
professional forester specified at CSR 38-2-7.4.b.1.A.4 must be a West 
Virginia professional forester does not render the provision 
inconsistent with those Federal requirements, and it can be approved.
    o. CSR 38-2-7.4.b.1.B.1. This provision concerns a commercial 
forestry and forestry reclamation plan, and is amended by deleting the 
word ``certified'' immediately before the phrase ``professional soil 
scientist'' in the first sentence. As amended, Subsection 7.4.b.1.B.1 
provides that a soil scientist employed by the WVDEP will review and 
field verify the soil slope and sandstone mapping in mountaintop 
removal mining permit applications involving commercial forestry.
    In its submittal of its amendment to this provision, the WVDEP 
stated that the word ``certified'' is being deleted because West 
Virginia does not have a certification system for soil scientist. SMCRA 
at section 515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c) 
require that an applicant for a mountaintop removal mining permit 
present specific plans for the proposed

[[Page 10773]]

postmining use. We find that the proposed deletion of the word 
``certified'' does not render the provision inconsistent with the 
Federal requirements and it can be approved. We note the National Park 
Service (NPS) comment (see Section IV. Summary and Disposition of 
Comments, Federal Agency Comments, below) that the West Virginia 
Association of Professional Soils Scientists (WVAPSS) does have a 
registry of certified professional soils scientists. By requiring soil 
scientists to be listed on the WVAPSS registry or a similar one, the 
State would create a professional image throughout its regulatory 
program and encourage higher standards of quality.
    p. CSR 38-2-7.4.b.1.C.1. This provision concerns commercial 
forestry areas, and is amended by adding the word ``areas'' immediately 
following the words ``commercial forestry'' in the first sentence, and 
by revising the standards for slopes of the postmining landform. As 
amended, Subsection 7.4.b.1.C.1 provides as follows:

    7.4.b.1.C.1. For commercial forestry areas, the Secretary shall 
assure that the postmining landscape is rolling, and diverse. The 
backfill on the mine bench shall be configured to create a 
postmining topography that includes the principles of land forming 
(e.g., the creation of swales) to reflect the premining 
irregularities in the land. Postmining landform shall provide a 
rolling topography with slopes between 5% and 20% with an average 
slope of 10% to 15%. The elevation change between the ridgeline and 
the valleys shall be varied. The slope lengths shall not exceed 500 
feet. The minimum thickness of backfill, including mine soil, placed 
on the pavement of the basal seam mined in any particular area shall 
be ten (10) feet.

    We find that the addition of the word ``areas'' improves the 
clarity of the intended meaning of this provision. In addition, the 
slope percentages are changed from 5% and 15% with an average slope of 
10 to 12.5% to between 5% and 15% with an average slope of 10% to 15%. 
While the proposed change would allow an increase in the steepness of 
slopes by about 2.5%, the final average slopes on mountaintop removal 
mining operations receiving approximate original contour (AOC) 
variances with an approved postmining land use of commercial forestry 
could not exceed 15% or about 8.5 degrees. SMCRA at section 
515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c) require 
that an applicant for a mountaintop removal mining permit present 
specific plans for the proposed postmining use. However, those Federal 
provisions do not provide the specificity that is provided in this 
provision. We find that the proposed amendment to CSR 38-2-7.4.b.1.C.1 
does not render the provision inconsistent with those Federal 
requirements, and it can be approved.
    q. CSR 38-2-7.4.b.1.C.2. This provision concerns commercial 
forestry areas and is amended by adding the word ``areas'' immediately 
after the phrase ``commercial forestry'' in the first sentence. We find 
that the addition of the word ``areas'' improves the clarity of the 
intended meaning of this provision and does not render the provision 
inconsistent with the Federal requirements at 30 CFR 785.14(c) 
concerning mountaintop removal mining operations, and it can be 
approved.
    r. CSR 38-2-7.4.b.1.C.3. This provision concerns commercial 
forestry areas and is amended by deleting the words ``in areas'' in the 
first sentence and adding the word ``areas'' in their place. We find 
that the proposed amendment to this provision improves the clarity of 
the intended meaning of this provision and does not render the 
provision inconsistent with the Federal requirements at 30 CFR 
785.14(c) concerning mountaintop removal mining operations, and it can 
be approved.
    s. CSR 38-2-7.4.b.1.C.4. This provision concerns commercial 
forestry areas and is amended by adding the word ``areas'' immediately 
following the words ``commercial forestry'' in the first sentence. In 
addition, the first sentence is also amended by deleting the word 
``permitted'' and replacing that word with the words ``commercial 
forestry.'' We find that the addition of the word ``areas'' improves 
the clarity of the intended meaning of this provision. The deletion of 
the word ``permitted'' and its replacement with the words ``commercial 
forestry'' eliminates an inconsistency in the language of this 
provision. It is now clear that at least 3.0 acres of ponds, permanent 
impoundments or wetlands must be created on each 200 acres of 
commercial forestry area. SMCRA at section 515(c)(3)(B) and the Federal 
regulations at 30 CFR 785.14(c) require that an applicant for a 
mountaintop removal mining permit present specific plans for the 
proposed postmining use. However, those Federal provisions do not 
provide the specificity that is provided in this provision. We find 
that the proposed amendment to CSR 38-2-7.4.b.1.C.4 does not render the 
provision inconsistent with those Federal requirements and it can be 
approved.
    t. CSR 38-2-7.4.b.1.C.5. This provision concerns forestry areas and 
is amended by adding the word ``areas'' immediately after the word 
``forestry'' in the first sentence. We find that because the addition 
of the word ``areas'' improves the clarity of the intended meaning of 
this provision and does not render the provision inconsistent with the 
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal 
mining operations, it can be approved.
    u. CSR 38-2-7.4.b.1.D.6. This provision concerns soil substitutes, 
and is amended by adding the words ``and is in accordance with 14.3.c 
of this rule'' at the end of the first sentence. As amended, the first 
sentence at CSR 38-2-7.4.b.1.D.6 provides as follows:

    7.4.b.1.D.6. Before approving the use of soil substitutes, the 
Secretary shall require the permittee to demonstrate that the 
selected overburden material is suitable for restoring land 
capability and productivity and is in accordance with 14.3.c of this 
rule.

    The WVDEP stated in its submittal that this change has been made to 
comply with the required program amendment codified in the Federal 
regulations at 30 CFR 948.16(wwww). The Federal regulations at 30 CFR 
948.16(wwww) provide that CSR 38-2-7.4.b.1.D.6 be amended to provide 
that the substitute material is equally suitable for sustaining 
vegetation as the existing topsoil and the resulting medium is the best 
available in the permit area to support vegetation (see 65 FR 50409, 
50418; August 18, 2000). The Federal regulations at 30 CFR 816.22(b) 
concerning topsoil substitutes and supplements provide that the 
operator must demonstrate that the resulting topsoil substitute or 
supplement medium is equal to, or more suitable for sustaining 
vegetation than, the existing topsoil, and the resulting soil medium is 
the best available in the permit area to support revegetation. West 
Virginia has amended CSR 38-2-7.4.b.1.D.6 by adding that topsoil 
substitutes must be in accordance with CSR 38-2-14.3.c. The State 
provision at CSR 38-2-14.3.c. concerns topsoil substitutes, and 
provides for a certification of analysis by a qualified laboratory 
stating that, at 14.3.c.1 that ``the proposed substitute material is 
equally suitable for sustaining vegetation as the existing topsoil,'' 
and at Subsection 14.3.c.2, the ``resulting soil medium is the best 
available in the permit area to support vegetation.'' Therefore, we 
find that as amended, CSR 38-2-7.4.b.1.D.6 is no less effective than 
the Federal regulations at 30 CFR 816.22(b), and it can be approved. We 
also find that this amendment satisfies the required program amendment 
codified in the Federal regulations at 30 CFR 948.16(wwww), which can 
be removed.

[[Page 10774]]

    v. CSR 38-2-7.4.b.1.D.8. This provision concerns the final surface 
material used as the commercial forestry mine soil and has been amended 
in the first sentence by adding the word ``areas'' immediately after 
the phrase ``[f]or commercial forestry.'' We find that the addition of 
the word ``areas'' improves the clarity of the intended meaning of this 
provision and does not render the provision inconsistent with the 
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal 
mining operations, and it can be approved.
    w. CSR 38-2-7.4.b.1.D.9. This provision concerns the final surface 
material used as the forestry mine soil and has been amended in the 
first sentence by adding the word ``areas'' immediately after the 
phrase ``[f]or forestry.'' We find that the addition of the word 
``areas'' improves the clarity of the intended meaning of this 
provision and does not render the provision inconsistent with the 
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal 
mining operations, and it can be approved.
    x. CSR 38-2-7.4.b.1.D.11. This provision concerns forestry mine 
soil, and has been amended by adding the phrase ``except for valley 
fill faces'' at the end of the sentence. As amended, Subsection 
7.4.b.1.D.11 provides that ``[f]orestry mine soil shall, at a minimum, 
be placed on all areas achieving AOC, except for valley fill faces.''
    In its submittal of this provision, the WVDEP stated that the 
amendment is intended to provide clarification. As proposed, forestry 
mine soil shall, at a minimum, be placed on all areas achieving AOC, 
except for valley fill faces. This change is intended to clarify that 
valley fill faces do not have to be covered with four feet of soil or a 
mixture of soil and suitable substitutes. However, we notified the 
State that the revision as proposed could be interpreted as requiring 
fills to be returned to AOC. Under the Federal rules, excess spoil 
disposal areas do not have to achieve AOC. The State acknowledged that 
the definition of AOC at WV Code 22-2-3(e) clarifies that excess spoil 
disposal areas do not have to achieve AOC (Administrative Record Number 
WV-1438). Unlike the Federal requirements, the proposed revision could 
also be interpreted as not requiring any forestry mine soil to be 
placed on valley fill faces. Therefore, we are approving this provision 
with the understanding that the exemption only applies to the four-foot 
requirement at CSR 38-2-7.4.b.1.D.8 and 7.4.b.1.D.9. Sufficient 
forestry mine soil shall be placed on valley fill faces to sustain 
vegetation and support the approved postmining land use in accordance 
with Finding 2.ff below. Based on that understanding, we find that this 
revision does not render CSR 38-2-7.4.b.1.D.11 inconsistent with the 
Federal mountaintop removal mining requirements at 30 CFR 785.14(c) or 
the topsoil and subsoil provisions at 30 CFR 816.22, and it can be 
approved.
    y. CSR 38-2-7.4.b.1.H.1. This provision concerns tree species and 
compositions for commercial forestry areas and forestry areas. The list 
of hardwoods in this provision for commercial forestry areas is amended 
by deleting ``white and red oaks, other native oaks'' and adding in 
their place ``white oak, chestnut oak, northern red oak, and black 
oak'' and by adding the words ``basswood, cucumber magnolia'' to the 
list. In addition, the word ``areas'' is added immediately following 
the words ``[f]or forestry'' in the third sentence. In addition, the 
list of hardwoods for forestry areas is amended by deleting the words 
``white and red oaks, other native oaks'' and adding in their place the 
words ``white oak, chestnut oak, northern red oak, black oak,'' and by 
adding the words `` basswood, cucumber magnolia'' to the list. As 
amended, Subsection 7.4.b.1.H.1 provides as follows:

    7.4.b.1.H.1. Commercial tree and nurse tree species selection 
shall be based on site-specific characteristics and long-term goals 
outlined in the forest management plan and approved by a registered 
professional forester. For commercial forestry areas, the Secretary 
shall assure that all areas suitable for hardwoods are planted with 
native hardwoods at a rate of 500 seedlings per acre in continuous 
mixtures across the permitted area with at least six (6) species 
from the following list: white oak, chestnut oak, northern red oak, 
black oak, white ash, yellow-poplar, basswood, cucumber magnolia, 
black walnut, sugar maple, black cherry, or native hickories. For 
forestry areas, the Secretary shall assure that all areas suitable 
for hardwoods are planted with native hardwoods at a rate of 450 
seedlings per acre in continuous mixtures across the permitted area 
with at least three (3) or four (4) species from the following list: 
white oak, chestnut oak, northern red oak, black oak, white ash, 
yellow-poplar, basswood, cucumber magnolia, black walnut, sugar 
maple, black cherry, or native hickories.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment is intended to provide clarification for oaks 
and mixtures. We find that the addition of the words ``areas'' improves 
the clarity of the intended meaning of this provision, and does not 
render the provision inconsistent with the Federal requirements 
concerning mountaintop removal mining operations and can be approved. 
The amendment to the lists of hardwoods for both commercial forestry 
areas and forestry areas provides increased specificity of hardwood 
tree species. SMCRA at section 515(c)(3)(B) and the Federal regulations 
at 30 CFR 785.14(c) require that an applicant for a mountaintop removal 
mining permit present specific plans for the proposed postmining use. 
In addition, 30 CFR 816.116(b)(3) requires stocking and planting 
arrangements to be based on local and regional conditions and after 
consultation and approval by State forestry and wildlife agencies. 
However, those Federal provisions do not provide the specificity of 
tree species that is provided in this provision. Nevertheless, we find 
that the proposed amendment to CSR 38-2-7.4.b.1.H.1 does not render the 
provision inconsistent with the aforementioned Federal requirements, 
and it can be approved.
    z. CSR 38-2-7.4.b.1.H.2. This provision has been amended in the 
first sentence by adding the word ``areas'' immediately after the 
phrase ``[f]or commercial forestry.'' We find that because the addition 
of the word ``areas'' improves the clarity of the intended meaning of 
this provision and does not render the provision inconsistent with the 
Federal requirements concerning mountaintop removal mining operations 
at 30 CFR 785.14(c), and it can be approved.
    aa. CSR 38-2-7.4.b.1.H.6. This provision has been amended in the 
first sentence by adding the word ``areas'' immediately after the 
phrase ``[f]or commercial forestry.'' We find that because the addition 
of the word ``areas'' improves the clarity of the intended meaning of 
this provision and does not render the provision inconsistent with the 
Federal requirements concerning mountaintop removal mining operations 
at 30 CFR 785.14(c), and it can be approved.
    bb. CSR 38-2-7.4.b.1.I.1. Subsection 7.4.b.1.I.1 has been amended 
in the last sentence by deleting the word ``certified'' immediately 
before the words ``soil scientist'' and adding in its place the word 
``professional.'' As amended, the sentence provides as follows: 
``[b]efore approving Phase I bond release, a professional soil 
scientist shall certify, and the Secretary shall make a written finding 
that the mine soil meets these criteria.'' In its submittal of its 
amendment to CSR 38-2-7.4.b.1.B.1, the WVDEP stated that the word 
``certified'' is being deleted

[[Page 10775]]

because West Virginia does not have a certification system for soil 
scientist. SMCRA at section 515(c)(3)(B) and the Federal regulations at 
30 CFR 785.14(c) require that an applicant for a mountaintop removal 
mining permit present specific plans for the proposed postmining use. 
We find that the proposed deletion of the word ``certified'' does not 
render the provision inconsistent with the Federal requirements 
regarding mountaintop removal mining operations at 30 CFR 785.14(c) and 
bond release at 30 CFR 800.40, and it can be approved. We note that as 
mentioned above at Finding 2.o., the NPS commented that the WVAPSS does 
have a registry of certified professional soils scientists. By 
requiring soil scientists to be listed on the WVAPSS registry or a 
similar one, the State would create a professional image throughout its 
regulatory program and encourage higher standards of quality.
    cc. CSR 38-2-7.4.b.1.I.2. Subsection 7.4.b.1.I.2 has been amended 
in two places by adding the word ``areas.'' The first sentence has been 
amended by adding the word ``areas'' immediately after the phrase ``for 
commercial forestry.'' The second from last sentence has been amended 
by adding the word ``areas'' immediately after the phrase ``both 
commercial forestry and forestry.'' We find that the addition of the 
word ``areas'' improves the clarity of the intended meaning of this 
provision and does not render the provision inconsistent with the 
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal 
mining operations, and it can be approved.
    dd. CSR 38-2-7.4.b.1.I.3. Subsection 7.4.b.1.I.3 has been amended 
in three places by adding the word ``areas.'' The first sentence has 
been amended by adding the word ``areas'' immediately after the phrase 
``for commercial forestry and forestry.'' The second sentence has been 
amended by adding the word ``areas'' immediately after the words 
``[f]or forestry.'' The third sentence has been amended by adding the 
word ``areas'' immediately after the phrase ``for commercial 
forestry.'' We find that the addition of the word ``areas'' improves 
the clarity of the intended meaning of this provision and does not 
render the provision inconsistent with the Federal requirements at 30 
CFR 785.14(c) concerning mountaintop removal mining operations, and it 
can be approved.
    ee. CSR 38-2-7.4.b.1.I.4 The State proposes to modify Subsection 
7.4.b.1.I.4 by adding the phrase, ``and the site meets the standards of 
Subsection 9.3.h of this rule.'' CSR 38-2-9.3.h contains forest 
resource conservation standards for commercial reforestation 
operations. The State rules at CSR 38-2-7.4.b.1.I.4. provide that a 
permittee who fails to achieve the ``'commercial forestry''' 
productivity requirements at the end of the twelfth growing season must 
either pay into the Special Reclamation Fund an amount equal to twice 
the remaining bond amount or perform an equivalent amount of in-kind 
mitigation. The money collected under this plan will be used to 
establish forests on bond forfeiture sites. In-kind mitigation requires 
establishing forests on AML or bond forfeiture sites. According to 
State officials, the phrase ``and the site meets the standards of 
Subsection 9.3.h of this rule'' was to ensure that operators would, at 
a minimum, have to meet the commercial reforestation standards of that 
subsection if the 12-year productivity requirement of Subsection 
7.4.b.1.I.3 was not met (Administrative Record Number WV-1438).
    Initially, we were concerned that, by simply referencing the 
revegetation standards at Subsection 9.3.h, the State had not made it 
clear that all the other requirements of the approved program and the 
permit were fully met in accordance with section 519(c)(3) of SMCRA and 
30 CFR 800.40(c)(3). That concern was further complicated by the fact 
that Subsection 7.4.b.1.I.5 only references the bond release 
requirements at Subsections 12.2.d and 12.2.e. At a minimum, we felt 
that the State should have referenced the bond release requirements at 
Subsection 12.2.c, especially Subsection 12.2.c.3. Subsection 12.2.c.3 
provides that Phase III reclamation shall be considered completed and 
the Secretary may release the remaining bond(s) upon successful 
completion of the reclamation requirements of the Act, this rule, and 
the terms and conditions of the permit.
    State officials further clarified that the references to 
Subsections 12.d and 12.e were added at the request of the coal 
industry to allow for incremental bond release, regardless of whether 
the operation was incrementally bonded initially or not. Accordingly, 
all reclamation requirements of the approved program and the permit 
must be met prior to final bond release for all mountaintop removal 
mining operations with a postmining land use of commercial forestry and 
forestry.
    State officials also maintain that the penalty/mitigation 
requirement is not a civil penalty, but an optional performance 
standard that can be used in the determination of success if the 12-
year productivity requirement is not met. According to the State, 
failure to achieve the productivity standard under these rules by the 
end of the 12th year is not a violation, and does not go through the 
State's civil penalty assessment process. That is, to meet the 
performance standards for Commercial Forestry, the permittee must meet 
the 12-year standards or, failing that, must meet the standards for 
success at CSR 38-2-9.3.h and the requirements of a commercial forestry 
mitigation plan. The commercial forestry mitigation plan may consist of 
either a payment to the Special Reclamation Fund of an amount equal to 
twice the remaining bond amount, or the performance of an equivalent 
amount of in-kind mitigation. These State provisions are in excess of 
OSM's 5-year revegetation requirements. The State's clarification is 
important, because in our previous decisions concerning this provision, 
we had interpreted the mitigation plan (the payment to the Special 
Reclamation Fund, and the in-kind mitigation) as a civil penalty 
provision (see the August 18, 2000, Federal Register (65 FR at 50423, 
50424)). However, we now understand that the mitigation plan is not a 
substitute for or in lieu of a civil penalty to be issued under the 
approved program. With the clarification provided by the State, we 
understand that a violation will not occur unless a permittee fails to 
meet the requirements of CSR 38-2-9.3.h or fails to meet the 
requirements of the commercial forestry mitigation plan.
    Considering the clarifications discussed above, we find that the 
provisions at Subsection 7.4.b.1.I.4 are consistent with section 
519(c)(3) of SMCRA and 30 CFR 800.40(c)(3) and can be approved.
    ff. CSR 38-2-7.4.b.1.J. This provision concerns the front faces of 
valley fills and has been amended by deleting existing Subsections 
7.4.b.1.J.1.(b) and (c), correcting a typographical error in the 
citation at Subsection 7.4.b.1.J.1.d, and re-designating existing 
Subsections 7.4.b.1.J.1.(d) and (e) as new Subsections 7.4.b.1.J.1.(b) 
and (c). As amended, Subsection 7.4.b.1.J. provides as follows:

    7.4.b.1.J. Front Faces of Valley Fills.
    7.4.b.1.J.1. Front faces of valley fills shall be exempt from 
the requirements of this rule except that:
    7.4.b.1.J.1.(a). They shall be graded and compacted no more than 
is necessary to achieve stability and non-erodability;
    7.4.b.1.J.1.(b). The groundcover mixes described in subparagraph 
7.4.b.1.G. shall be used unless the Secretary requires a different 
mixture;
    7.4.b.1.J.1.(c) Kentucky 31 fescue, serecia lespedeza, vetches, 
clovers (except ladino

[[Page 10776]]

and white clover) or other invasive species may not be used; and
    7.4.b.1.J.2. Although not required by this rule, native, non-
invasive trees may be planted on the faces of fills.

    To make Subsection 7.4.b.1.J.1 consistent with the other parts of 
Subsection 7.4, the State deleted 7.4.b.1.J.1.(b) which provides that, 
``No unweathered shales may be present in the upper four feet of 
surface material.'' The State also deleted 7.4.b.1.J.1.(c) which 
provides that, ``The upper four feet of surface material shall be 
composed of soil and the materials described in subparagraph 7.4.b.1.D. 
of this rule, when available, unless the Secretary determines other 
material is necessary to achieve stability.''
    The faces of excess spoil fills do not have to be covered with four 
feet of surface material. However, the effect of the deletion of 
Subsection (c) is that the front faces of fills are exempt from all the 
requirements of this rule, except for those provisions set forth in 
Subsection 7.4.b.1.J.1 which pertain to grading, compaction, stability, 
and vegetative cover. As such, the revised State rule would not require 
topsoil or topsoil substitutes to be redistributed on fill faces to 
achieve an approximate uniform, stable thickness consistent with the 
approved postmining land use as required by 30 CFR 816.22(d)(1) and 
816.71(e)(2). As a result, Subsection 7.4.b.1.J.1 is rendered 
inconsistent with the Federal topsoil redistribution requirements at 30 
CFR 816.22(d)(1) and 816.71(e)(2). To remedy this problem, we are not 
approving the deletion of the following words at CSR 38-2-
7.4.b.1.J.1(c): ``surface material shall be composed of soil and the 
materials described in subparagraph 7.4.b.1.D.'' As a consequence of 
this disapproval, the language quoted above will remain in the West 
Virginia program. The effect of the disapproval of the language quoted 
above is that the front faces of valley fills will not be exempt from 
the requirements that topsoil or topsoil substitutes be redistributed 
on fill faces to achieve an approximate uniform, stable thickness 
consistent with the approved postmining land use as required by 30 CFR 
816.22(d)(1) and 816.71(e)(2). With this disapproval, we find that the 
remaining portion of CSR 38-2-7.4.b.1.J.1 is consistent with the 
Federal topsoil redistribution requirements at 30 CFR 816.22(d)(1) and 
816.71(e)(2) and can be approved.
    In addition, the State changed a cross reference in new Subsection 
7.4.1.J.1(b). We find that the correction of the citation of the 
location of groundcover plant mixes from subsection ``7.4.d.1.G'' to 
subsection ``7.4.b.1.G'' corrects a typographical error and can be 
approved.
    gg. CSR 38-2-7.5.a. Subsection 7.5 concerns Homestead postmining 
land use. Subsection 7.5.a has been amended by adding a new sentence to 
the end of the existing language. As amended, CSR 38-2-7.5.a provides 
as follows:

    7.5.a. Operations receiving a variance from AOC for this use 
shall establish homesteading on at least one-half (\1/2\) of the 
permit area. The remainder of the permit area shall support an 
alternate AOC variance use. The acreage considered homesteading 
shall be the sum of the acreage associated with the following: the 
civic parcel; the commercial parcel; the conservation easement; the 
homestead parcel; the rural parcel and any required infra structure.

    According to the State, the rule does not dictate the requirements 
for every acre, but provides flexibility for land use, so long as 
certain conditions exist. A breakdown based on the minimum and maximum 
acreages in the rule can be provided, but one must remember that they 
will not total 100 percent of the homestead acreage. Using a 1,000-acre 
mountaintop removal mining operation as an example, an operator would 
have to establish homesteading on 50 percent of the permitted area or 
500 acres. At least 300 acres of the homestead area may be quantifiable 
based on the specific requirements in the rule. In this example, the 
common lands would be 50 acres (10% x 500); the conservation easement 
would be 50 acres (10% x 500); the civic parcel would be 100 acres (10% 
x 1,000); and the village parcel would be 100 acres (20% x 500). The 
remaining 200 acres, less acreage for perpetual easement, may be a 
combination of the civic parcel, the conservation easement, and 
homestead village, rural and/or commercial. If the commercial parcel is 
included, then the operation would not get credit for the area in the 
development plan (Administrative Record Number WV-1438).
    We note that this revision, together with other changes discussed 
in Finding 2.mm., is intended to comply with the required program 
amendment codified in the Federal regulations at 30 CFR 948.16 (rrrrr). 
The requirement at 30 CFR 948.16 (rrrrr) provides for the amendment to 
revise: (1) CSR 38-2-7.5.a to clarify whether or not the calculated 
acreage of the Commercial Parcel(s) is to be summed with the total 
Homestead acreage for the purpose of calculating the acreage of other 
various components of the Homestead Area (such as Common Lands, Village 
Parcels, Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4 to 
clarify whether or not the acreage for Public Nursery is to be 
calculated based on the amount of acreage available for the Village 
Homestead, the Civil Parcel, or the entire Homestead Area (Finding 
2.mm. below addresses part 2 of 30 CFR 948.16(rrrrr)). We find that the 
amendment at Subsection 7.5.a satisfies part (1) of the required 
program amendment codified at 30 CFR 948.16 (rrrrr). The proposed 
amendment clarifies that the acreage for ``commercial parcels'' is 
indeed summed with the other various components of the Homestead Area 
(such as Common Lands, Village Parcels, Conservation Easement, etc.). 
Therefore, we find that part (1) of the required program amendment 
codified at 30 CFR 948.16 (rrrrr) is satisfied and can be removed, and 
the amendment can be approved.
    hh. CSR 38-2-7.5.b.3. This provision concerns the definition of 
``Commercial parcel,'' and has been amended by deleting the word 
``regulation'' in the last sentence and replacing that word with the 
word ``rule.'' In addition, a new sentence has been added to the end of 
the provision. As amended, Subsection 7.5.b.3 provides as follows:

    7.5.b.3. Commercial parcel means a parcel retained by the 
landowner of record and incorporated within the homestead area on 
which the landowner or its designee may develop commercial uses. The 
size and location of commercial parcels shall comply with the 
requirements of this rule. Provided, however, parcels retained by 
the landowner for commercial development and incorporated within the 
Homestead area must be developed for commercial uses as provided by 
subdivision 7.5.g.5 of this rule.

    In its submittal of the amendment of this provision, the WVDEP 
stated that the amendment is to comply with the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(fffff). 
The requirement at 30 CFR 948.16(fffff) provides that CSR 38-2-7.5.b.3 
must be amended, or the West Virginia program must otherwise be 
amended, to clarify that parcels retained by the landowner for 
commercial development and incorporated within the Homestead area must 
be developed for commercial uses as provided by subdivision CSR 38-2-
7.5.g.5. We find that the amendment satisfies the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(fffff), 
and it can be removed. The amended language is approved.
    ii. CSR 38-2-7.5.i.10. This provision concerns wetlands associated 
with Homestead areas, and is amended by adding a new sentence 
immediately following the existing first sentence. As amended, 
Subsection 7.5.i.10 provides as follows:


[[Page 10777]]


    7.5.i.10. Wetlands. Each homestead plan may describe areas 
within the homestead area reserved for created wetlands. The created 
wetlands shall comply with the requirements of 3.5 of this rule. 
These created wetlands may be ponds, permanent impoundments or 
wetlands created during mining. They may be left in place after 
final bond release. Any pond or impoundment left in place is subject 
to requirements under subsection 5.5 of this rule.

    In its submittal of the amendment of this provision, the WVDEP 
stated that the amendment is to comply with the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(iiiii). 
The requirement at 30 CFR 948.16(iiiii) provides that CSR 38-2-7.5.i.10 
must be amended, or the West Virginia program must otherwise be 
amended, to require compliance with the permit requirements at CSR 38-
2-3.5.d. This provision requires the submittal of cross sectional areas 
and profiles of all drainage and sediment control structures, including 
ponds, impoundments, diversions, sumps, etc. We find that the amendment 
satisfies the required program amendment codified in the Federal 
regulations at 30 CFR 948.16(iiiii), and it can be removed. The amended 
language is approved.
    jj. CSR 38-2-7.5.j.3.A. This provision concerns the definition of 
soil in relation to Homestead areas, and is amended in the first 
sentence by adding the soil horizon ``E'' between soil horizons ``A'' 
and ``B.''
    In its submittal of the amendment of this provision, the WVDEP 
stated that the amendment is to comply with the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(jjjjj). 
The requirement at 30 CFR 948.16(jjjjj) provides that CSR 38-2-
7.5.j.3.A be amended by adding an ``E'' horizon. The Federal definition 
of ``topsoil'' at 30 CFR 701.5 provides that topsoil is the A and E 
soil horizon layers of the four master soil horizons, which include the 
A, E, B and C horizons. The State added the ``E'' horizon to its 
definition of topsoil at 7.5.j.3.A to be consistent with the State's 
definition of topsoil at CSR 38-2-2.127 and the Federal definition at 
30 CFR 701.5. We find that the amendment satisfies the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(jjjjj), 
and it can be removed. The amendment is approved.
    kk. CSR 38-2-7.5.j.3.B. This provision concerns the recovery and 
use of soil on Homestead areas, and it is amended by deleting the 
exception that is stated in the first sentence. As amended, Subsection 
7.5.j.3.B provides as follows:

    7.5.j.3.B. The Secretary shall require the operator to recover 
and use all the soil on the mined area, as shown on the soil maps. 
The Secretary shall assure that all saved soil includes all of the 
material from the O and A horizons.

    In its submittal of this revision, the WVDEP stated that the 
revision is intended to comply with the required program amendment 
codified in the Federal regulations at 30 CFR 948.16 (kkkkk). The 
requirement at 30 CFR 948.16 (kkkkk) provides that CSR 38-2-7.5.j.3.B 
must be amended by deleting the phrase, ``except for those areas with a 
slope of at least 50%,'' and by deleting the phrase, ``and other areas 
from which the applicant affirmatively demonstrates and the Director of 
the WVDEP finds that soil cannot reasonably be recovered.'' With this 
change, the State rules at CSR 38-2-14.3, like the Federal rules at 30 
CFR 816.22, still require an operator to save and redistribute all 
topsoil. Under this revision, topsoil on slopes greater than 50 percent 
may be removed in combination with and saved with the other soil 
horizons. We find that the amendment satisfies the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(kkkkk), 
and it can be removed. The amended language is approved.
    ll. CSR 38-2-7.5.j.3.E. This provision concerns soil substitutes 
and is amended by adding the phrase ``and is in accordance with 14.3.c 
of this rule'' at the end of the first sentence.
    In its submittal of this revision, the WVDEP stated that the 
revision is intended to comply with the required program amendment 
codified in the Federal regulations at 30 CFR 948.16 (lllll). The 
requirement at 30 CFR 948.16 (lllll) provides that CSR 38-2-7.5.j.3.E 
be amended, or the West Virginia program otherwise be amended, to 
provide that soil substitute material must be equally suitable for 
sustaining vegetation as the existing topsoil and the resulting medium 
is the best available in the permit area to support vegetation. The 
West Virginia rules at CSR 38-2-14.3.c concerning top soil substitutes 
provide that a qualified laboratory must certify that:

    14.3.c.1. The proposed substitute material is equally suitable 
for sustaining vegetation as the existing topsoil;
    14.3.c.2. The resulting soil medium is the best available in the 
permit area to support vegetation; and
    14.3.c.3. The analyses were conducted using standard testing 
procedures.

    We find that the provisions at subsections 14.3.c.1 and 14.3.c.2 
quoted above are substantively identical to the Federal requirements at 
30 CFR 816.22(b). Therefore, we find that the required program 
amendment at 30 CFR 948.16(lllll) is satisfied by the addition of the 
requirement that the permittee demonstrate that the selected overburden 
material used as soil substitute be in accordance with the requirements 
at CSR 38-2-14.3.c, and that 30 CFR 948.16(lllll) can be removed. The 
amended language is approved.
    mm. CSR 38-2-7.5.l.4.A. This provision concerns public nursery 
associated with Homestead areas, and is amended by adding the word 
``village'' between the words ``homestead'' and ``area'' in the first 
sentence.
    In its submittal of this revision, the WVDEP stated that the 
revision is intended to comply with required program amendment codified 
in the Federal regulations at 30 CFR 948.16 (rrrrr). The requirement at 
30 CFR 948.16 (rrrrr) provides for the amendment of: (1) CSR 38-2-7.5.a 
to clarify whether or not the calculated acreage of the Commercial 
Parcel(s) is to be summed with the total Homestead acreage for the 
purpose of calculating the acreage of other various components of the 
Homestead Area (such as Common Lands, Village Parcels, Conservation 
Easement, etc.); and (2) CSR 38-2-7.5.l.4 to clarify whether or not the 
acreage for Public Nursery is to be calculated based on the amount of 
acreage available for the Village Homestead, the Civil Parcel, or the 
entire Homestead Area. We find that as amended, the first sentence at 
CSR 38-2-7.5.l.4.A clearly provides that ``the nursery shall be 1 acre 
per 30 acres of homestead village area.'' With the proposed change, 
WVDEP has clarified that the acreage for Public Nursery is to be 
calculated based on the amount of acreage available for the Village 
Homestead. Therefore, we find that as amended CSR 38-2-7.5.l.4.A 
satisfies part (2) of the required program amendment at 30 CFR 
948.16(rrrrr), and it can be removed. See Finding 2.gg., above for our 
finding on part (1) of 30 CFR 948.16(rrrrr). The amended language is 
approved.
    nn. CSR 38-2-7.5.o.2. This provision concerns revegetation success 
standards for mountaintop removal mining operations with a Homestead 
postmining land use during Phase II bond release. While the State's 
proposed amendment listed the required amendment at 30 CFR 
948.16(ooooo), it was not addressed in the State's initial submittal. 
The requirement at 30 CFR 948.16(ooooo) provides in part that WVDEP 
must consult with and obtain the approval of the West Virginia Division 
of Forestry on the new stocking arrangements for Homestead at CSR 38-2-
7.5.o.2.

[[Page 10778]]

    On August 23, 2005, the Division of Forestry submitted a memorandum 
to WVDEP in support of the new stocking requirements for Homesteading 
(Administrative Record Number WV-1428). Specifically, the Division of 
Forestry agreed with the provisions at CSR 38-2-7.5.i.8, 7.5.l.4, and 
7.5.o.2 regarding conservation easements, public nurseries, and 
survival rates and ground cover requirements at the time of bond 
release. Therefore, we find that the Division of Forestry's memorandum 
dated August 23, 2005, satisfies the required program amendment 
codified in the Federal regulations at 30 CFR 948.16(ooooo) and it can 
be removed. We should note that the Wildlife Resources Section of the 
Department of Natural Resources already submitted its approval letter.
    oo. CSR 38-2-7.5.o.2. This provision concerns Phase II bond release 
of mountaintop removal mining operations with a Homestead postmining 
land use, and is amended by adding a proviso at the end of the existing 
provision. As amended, CSR 38-2-7.5.o.2 provides as follows:

    7.5.o.2. Phase II bond release may not occur before two years 
have passed since Phase I bond release. Before approving Phase II 
bond release, the Secretary shall assure that the vegetative cover 
is still in place. The Secretary shall further assure that the tree 
survival on the conservation easements and public nurseries are no 
less than 300 trees per acre (80% of which must be species from the 
approved list). Furthermore, in the conservation easement and public 
nursery areas, there shall be a 70% ground cover where ground cover 
includes tree canopy, shrub and herbaceous cover, and organic 
litter. Trees and shrubs counted in considering success shall be 
healthy and shall have been in place at least two years, and no 
evidence of inappropriate dieback. Phase II bond release shall not 
occur until the service drops for the utilities and communications 
have been installed to each homestead parcel. Provided, however, the 
applicable revegetation success standards for each phase of bond 
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic 
Parcels and Common Lands shall be its corresponding revegetation 
success standards specified in 9.3 of this rule.

    In its submittal of this revision, the WVDEP stated that the 
revision is intended to comply with the required program amendment 
codified in the Federal regulations at 30 CFR 948.16 (ppppp). The 
requirement at 30 CFR 948.16 (ppppp) provides that CSR 38-2-7.5.o.2 be 
amended, or the West Virginia program otherwise be amended, to identify 
the applicable revegetation success standards for each phase of bond 
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic 
Parcels and Common Lands. With this amendment, the State has clarified 
that the applicable revegetation standards for Commercial Parcels, 
Village Parcels, Rural Parcels, Civic Parcels and Common Lands are 
provided in the West Virginia regulations at CSR 38-2-9.3. Subsection 
9.3 contains standards for evaluating vegetative cover. CSR 38-2-9.3.f 
provides standards for postmining land uses that require legumes and 
perennial grasses, such as hay land, pastureland, and rangeland. CSR 
38-2-9.3.f.1 provides standards for postmining land uses to be 
developed for industrial or residential uses. CSR 38-2-9.3.f.2 provides 
standards for lands used for cropland. CSR 38-2-9.3.g provides 
standards for lands used for forest and/or wildlife use. CSR 38-2-9.3.h 
provides standards for commercial reforestation operations. We find 
that as amended, CSR 38-2-7.5.o.2 satisfies the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(ppppp), 
and it can be removed. The amended language is approved.
    pp. CSR 38-2-9.3.d. Subsection 9.3 concerns the standards for 
evaluating vegetative cover. Subsection 9.3.d is amended by deleting 
the word ``determine'' in the first sentence, and adding in its place 
the word ``verify.'' The existing second sentence concerning a 
statistically valid sampling technique is deleted, and is replaced by a 
new sentence that requires the operator to provide the Secretary of the 
WVDEP with a vegetative evaluation using a statistically valid sampling 
technique. As amended, Subsection 9.3.d provides as follows:

    9.3.d. Not less than two (2) years following the last date of 
augmented seeding, the Secretary shall conduct a vegetative 
inspection to verify that applicable standards for vegetative 
success have been met. The operator shall provide to the Secretary a 
vegetative evaluation using a statistically valid sampling technique 
with a ninety (90) percent statistical confidence interval. An 
inspection report shall be filed for each inspection and when the 
standard is met, the Secretary shall execute a Phase II bond 
release.

The Federal regulations at 30 CFR 816.116 provide the standards for 
success of revegetation. The Federal regulations at 816.116(a)(2) 
provide that the sampling techniques for measuring success shall use a 
90-percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error). Further, 30 CFR 816.116(a)(1) provides that the 
standards for success and statistically valid sampling techniques for 
measuring success shall be selected by the regulatory authority and 
included in an approved regulatory program. Currently, a State bond 
release specialist conducts the vegetative evaluation prior to bond 
release. Under the revised rule, the operator will perform the 
evaluation, and a State inspection will be conducted to verify the 
results. The State's approved policy dated May 1, 2002, and entitled 
``Productivity and Ground Cover Success Standards'' identifies the 
statistically valid sampling techniques for measuring productivity and 
ground cover within the State. Under the revised provisions, only these 
approved sampling techniques can be used by an operator to evaluate or 
by the State to verify revegetation success in conjunction with Phase 
II and III bond release. As amended, the West Virginia provision 
provides an alternative, yet as-effective version of the Federal 
requirements.
    Prior to the amendment, the WVDEP used a statistically valid 
sampling technique with a ninety (90) percent statistical confidence 
interval to evaluate the success of revegetation during its vegetative 
evaluation inspection. The amended provision, however, appears to allow 
the operator to select and use a statistically valid sampling technique 
with a ninety (90) percent statistical confidence interval to confirm 
revegetation success, while a WVDEP inspection will be made to verify 
the operator's evaluation. The amendments to CSR 38-2-9.3.d appear to 
increase the flexibility of which statistical sampling techniques may 
be used to evaluate revegetation success while at the same time 
continuing to maintain the standard that the selected standard must be 
a statistically valid sampling technique with a ninety (90) percent 
statistical confidence interval as is required by the Federal 
regulations at 30 CFR 816.116(a)(2).
    However, the Federal regulations at 30 CFR 816.116(a)(1) provide 
that the statistically valid sampling technique must be selected by the 
regulatory authority and included in an approved regulatory program. As 
amended, CSR 38-2-9.3.d differs from 30 CFR 816.116(a)(1) in that the 
State's provision appears to allow an operator to select and use a 
statistically valid sampling technique with a ninety (90) percent 
statistical confidence interval. Nevertheless, it is our understanding 
that the sampling technique to be used to evaluate the success of 
revegetation will be submitted by the operator to the WVDEP as part of 
the revegetation plan required by CSR 38-2-9.2, and this understanding 
is further supported by the fact that Subsection 9.3.e requires the use 
of an approved sampling technique with a ninety (90) percent 
statistical confidence interval. The State's requirements at CSR 38-2-
9.2

[[Page 10779]]

provide that a complete revegetation plan shall be made part of each 
permit application. Therefore, it is our understanding that the 
statistically valid sampling technique to be used must receive the 
approval of the regulatory authority and it will be a part of the 
approved permit application. We find that, as amended, CSR 38-2-9.3.d 
is consistent with and no less effective than the Federal regulations 
for measuring revegetation success at 30 CFR 816.116(a)(1) and can be 
approved. Our approval of this provision is based upon our 
understanding discussed above.
    qq. CSR 38-2-9.3.e. Subsection 9.3.e concerns request of final bond 
release, and is amended by adding the phrase ``which includes a final 
vegetative evaluation using approved, statistically valid sampling 
techniques'' to the end of the first sentence. In addition, the words 
``inspection to verify the'' are added to the second sentence, 
immediately following the phrase ``the Secretary shall conduct.'' 
Finally, the words ``using approved, statistically valid sampling 
techniques'' are deleted from the end of the second sentence. As 
amended, Subsection 9.3.e provides as follows:

    9.3.e. After five (5) growing seasons following the last 
augmented seeding, planting, fertilization, revegetation, or other 
work, the operator may request a final inspection and final bond 
release which includes a final vegetative evaluation using approved, 
statistically valid sampling techniques. Upon receipt of such 
request, the Secretary shall conduct a [sic] inspection to verify 
the final vegetative evaluation. A final report shall be filed and 
if the applicable standards have been met, the Secretary shall 
release the remainder of the bond. Ground cover, production, or 
stocking shall be considered equal to the approved success standard 
when they are not less than 90 (ninety) percent of the success 
standard.

    In its submittal of the amendment of this provision, the WVDEP 
stated that the amendment is to make it clear that the operator will 
provide the information to determine if the vegetation success standard 
has been met. As we discussed above in Finding 2.pp., West Virginia 
amended its regulations at CSR 38-2-9.3.d to require the operator to 
select and use a statistically valid sampling technique with a ninety 
(90) percent statistical confidence interval to confirm revegetation 
success, while a WVDEP inspection will be made to verify the operator's 
evaluation. Also as discussed above at Finding 2.pp., it is our 
understanding that the statistically valid sampling technique with a 
ninety (90) percent statistical confidence interval that is proposed by 
the operator to be used to evaluate the success of revegetation will be 
submitted to the WVDEP as part of the revegetation plan required by CSR 
38-2-9.2. The State's requirements at CSR 38-2-9.2 provide that a 
complete revegetation plan shall be made part of each permit 
application. Therefore, the statistically valid sampling technique to 
be used must receive the approval of the regulatory authority, and it 
will be a part of the approved permit application. This understanding 
is further supported by the fact that this subsection requires the use 
of an approved sampling technique by the operator. We find that, as 
amended, CSR 38-2-9.3.e is consistent with and no less effective than 
the Federal regulations for measuring revegetation success at 30 CFR 
816.116(a)(1) and can be approved. Our approval of this provision is 
based upon our understanding discussed above.
    rr. CSR 38-2-14.5.h. Subsection 14.5 concerns performance standards 
for hydrologic balance. Subsection 14.5.h is amended by adding two new 
sentences at the end of this provision relating to the waiver of water 
supply replacement. As amended, Subsection 14.5.h provides as follows:

    14.5.h. A waiver of water supply replacement granted by a 
landowner as provided in subsection (b) of section 24 of the Act 
shall apply only to underground mining operations, provided that a 
waiver shall not exempt any operator from the responsibility of 
maintaining water quality. Provided, however, 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. 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 that 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.

    In its submittal of this revision, the WVDEP stated that the 
revision is intended to comply with the required program amendment 
codified in the Federal regulations at 30 CFR 948.16 (sss). The 
requirement at 30 CFR 948.16 (sss) provides that CSR 38-2-14.5.h must 
be amended, or the West Virginia program must otherwise be amended, 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. The proposed State revision clarifies that 
the replacement of a water supply is required, unless consideration is 
given to the effect on premining and postmining land uses. In addition, 
the proposed revision clarifies that a waiver can only be approved 
where it is demonstrated that a suitable alternative water source is 
available and could feasibly be developed. We find that the new 
language added to CSR 38-2-14.5.h is substantively identical to the 
Federal definition of ``replacement of water supply,'' paragraph (b), 
at 30 CFR 701.5 and can be approved. In addition, the new language 
satisfies the required program amendment codified in the Federal 
regulations at 30 CFR 948.16(sss), which can be removed.
    ss. CSR 38-2-14.15.c.3. Subsection 14.15 concerns performance 
standards for contemporaneous reclamation. Subsection 14.15.c.3 is 
amended by deleting the reference to the ``National Environmental 
Policy Act'' and adding in its place a reference to the ``Endangered 
Species Act.''
    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment is to correct a wrong cross-reference. We did 
not act on this provision in the December 3, 2002, Federal Register 
notice (67 FR 71832). As explained in that notice, under SMCRA, the 
issuance of a SMCRA permit by the State is not considered an action 
under NEPA. In addition, individual States have no authority to require 
compliance with NEPA and, therefore, the State's proposed reference to 
NEPA has no effect on the West Virginia program. Because we did not 
render a decision on the proposed language, it has not been part of the 
approved State program. Under the proposed revision, the WVDEP 
Secretary could allow operators to cut trees on areas larger than 30 
acres when it is necessary to comply with the Endangered Species Act. 
The State is trying to protect the Indiana bat and other endangered 
plant and animal species by minimizing habitat loss at certain times of 
the year, most notably during mating season. The proposed reference to 
the Endangered Species Act is an attempt by the State to correct the 
earlier problem. Therefore, we find that this amendment corrects the 
erroneous reference to the ``National Environmental Policy Act'' and 
can be approved.
    tt. CSR 38-2-20.6.d. Section 20 concerns inspection and 
enforcement. Subsection 20.6.d concerns Notice of Informal Assessment 
Conference, and is amended by deleting the second sentence of this 
provision. The deleted

[[Page 10780]]

sentence provided as follows: ``[p]rovided, however, the operator shall 
forward the amount of proposed penalty assessment to the Secretary for 
placement in an interest bearing escrow account.'' In its submittal, 
WVDEP stated that the requirement to pre-pay the proposed civil penalty 
assessment prior to informal conference caused confusion and did not 
achieve the desired results. We find that the deletion of the 
requirement to place the amount of proposed penalty assessment in an 
interest bearing escrow account does not render the provision less 
effective than the counterpart Federal regulations at 30 CFR 845.18 
concerning assessment conference procedures. The regulations at 30 CFR 
845.18 do not provide for the placement of the amount of proposed 
penalty assessment in an interest bearing escrow account. Therefore, we 
find that the revised State procedure at CSR 38-2-20.6.d is the same as 
or similar to the Federal procedure at 30 CFR 845.18 and can be 
approved.
    uu. CSR 38-2-20.6.j. Subsection 20.6.j concerns escrow, and is 
amended by deleting the words ``an informal conference or'' and adding 
in their place the word ``a.'' As amended, CSR 38-2-20.6.j provides as 
follows: ``Escrow. If a person requests a judicial review of a proposed 
assessment, the proposed penalty assessment shall be held in escrow 
until completion of the judicial review.''
    In its submittal of this amendment, the WVDEP stated that the 
requirement to pre-pay penalty prior to informal conference did not 
achieve the desired results. WVDEP also stated that it has led to 
confusion between agency and industry alike and, therefore, the agency 
is deleting this requirement. We find that the deletion of the 
requirement to place the amount of proposed civil penalty assessment in 
an interest bearing escrow account prior to the informal conference 
does not render the provision less effective than the counterpart 
Federal regulations at 30 CFR 845.18 or 30 CFR 845.19. As discussed 
above, the Federal regulations at 30 CFR 845.18, concerning assessment 
conference procedures, do not require the placement of the amount of 
proposed penalty assessment in an interest bearing escrow account. The 
Federal regulations at 30 CFR 845.19 concern request for a hearing, and 
provide that the person charged with the violation may contest the 
proposed penalty assessment or reassessment by submitting a petition 
and an amount equal to the proposed penalty for placement in an escrow 
account. Therefore, we find that the revised State procedure at CSR 38-
2-20.6.j is the same as or similar to the Federal procedures at 30 CFR 
845.18 and 30 CFR 845.19 and can be approved.
Amendments to CSR 199-1
    a. CSR 199-1-2.36a. Section CSR 199-1-2 concerns definitions. New 
Subsection 2.36a has been added to define the term ``Community or 
Institutional Building.'' New Subsection 2.36a provides as follows:

    2.36a. Community or Institutional Building means any structure, 
other than a public building or an occupied dwelling, which is used 
primarily for meetings, gatherings or functions of local civic 
organizations or other community groups; functions as an 
educational, cultural, historic, religious, scientific, 
correctional, mental health or physical health care facility; or is 
used for public services, including, but not limited to, water 
supply, power generation or sewage treatment.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment further defines the definition, and the 
information was taken from CSR 38-2, the State's Surface Mining 
Reclamation Regulations. We find that this new definition is 
substantively identical to the Federal definition of ``community or 
institutional building'' at 30 CFR 761.5 and can be approved.
    b. CSR 199-1-2.36b. New Subsection 2.36b has been added to define 
the term ``Public Building.'' New Subsection 2.36b provides as follows:

    2.36b. Public Building means any structure that is owned or 
leased by a public agency or used primarily for public business or 
meetings.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment further defines the definition, and the 
information was taken from CSR 38-2, the State's Surface Mining 
Reclamation Regulations. We find this new definition to be 
substantively identical to the Federal definition of ``public 
building'' at 30 CFR 761.5 and can be approved.
    c. CSR 199-1-2.37. New Subsection 2.37 has been added to define the 
term ``Structure.'' Existing Subsections 2.37, 2.38, and 2.39 have been 
renumbered as Subsections 2.38, 2.39, and 2.40. New Subsection 2.37 
provides as follows:

    2.37 Structure means any man-made structures within or outside 
the permit areas which include, but is not limited to: Dwellings, 
outbuildings, commercial buildings, public buildings, community 
buildings, institutional buildings, gas lines, water lines, towers, 
airports, underground mines, tunnels and dams. The term does not 
include structures built and/or utilized for the purpose of carrying 
out the surface mining operation.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the definition was taken from CSR 38-2, the State's Surface 
Mining Reclamation Regulations. There is no Federal counterpart 
definition to the State's new definition of ``structure.'' However, we 
find that the new definition of ``structure'' is not inconsistent with 
the Federal use of the term ``structure(s)'' in the Federal blasting 
regulations at 30 CFR Parts 816/817 and can be approved.
    d. CSR 199-1-3.3.b. Subsection 3.3 concerns public notice of 
blasting operations, and has been amended by adding new Subsection 
3.3.b to provide as follows:

    3.3.b. Blasting Signs. The following signs and markers shall be 
erected and maintained while blasting is being conducted:
    3.3.b.1. Warning signs shall be conspicuously displayed at all 
approaches to the blasting site, along haulageways and access roads 
to the mining operation and at all entrances to the permit area. The 
sign shall at a minimum be two feet by three feet (2' x 3') reading 
``WARNING! Explosives in Use'' and explaining the blasting warning 
and the all clear signals and the marking of blasting areas and 
charged holes; and
    3.3.b.2. Where blasting operations will be conducted within one 
hundred (100) feet of the outside right-of-way of a public road, 
signs reading ``Blasting Area'', shall be conspicuously placed along 
the perimeter of the blasting area.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment adds information from CSR 38-2, the State's 
Surface Mining Reclamation Regulations, relating to blasting signs. 
This change is necessary because the State's Blasting Rule currently 
lacks specific provisions regarding blasting signs. Such provisions are 
only set forth in the State's Surface Mining Reclamation Regulations at 
Subsection 14.1.e. We find that new CSR 199-1-3.3.b is substantively 
identical to the Federal blasting provisions at 30 CFR 816/817.66(a)(1) 
and (2) concerning blasting signs, warnings, and access control and can 
be approved.
    e. CSR 199-1-3.7. Subsection 3.7.a concerns blasting control for 
other structures, and has been amended by deleting the words ``in 
subsection 2.35 of this rule'' in the first sentence.
    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment eliminates an incorrect reference to the 
definition of ``Protected Structure.'' The definition of ``Protected 
Structure'' is located at CSR 199-1-2.36. With this change, these 
provisions still provide for the protection of protected structures and 
other structures. We find that the deletion of the incorrect

[[Page 10781]]

reference number does not render the provision less effective than the 
Federal blasting provisions at 30 CFR 816/817.67, concerning the 
control of the adverse effects of blasting, and can be approved.
    f. CSR 199-1-4.8. Subsection 4.8 concerns violations by a certified 
blaster, and has been amended by deleting the words ``director shall'' 
and replacing those words with the words ``Secretary may.'' In 
addition, the words ``written notification'' are added immediately 
after the word ``issue.'' The phrase ``or revoke the certification of'' 
is added immediately after the phrase ``a temporary suspension order,'' 
and the word ``against'' has been deleted. As amended, the paragraph at 
Subsection 4.8 provides as follows:

    4.8. Violations by a Certified Blaster.--The Secretary may issue 
written notification, a temporary suspension order, or revoke the 
certification of a certified blaster who is, based on clear and 
convincing evidence, in violation of any of the following:

    With these changes, the Secretary may issue written notification, a 
temporary suspension order, or revoke the certification of a certified 
blaster who is, based on clear and convincing evidence, in violation of 
the provisions listed at CSR 199-1-4.8.a through 4.8.e. We find that 
CSR 199-1-4.8, as revised, is consistent with the Federal regulations 
at 30 CFR 850.15(b), concerning suspension and revocation of blaster 
certification, and can be approved.
    g. CSR 199-1-4.8.c. Subsection 4.8.c has been amended by deleting 
the words ``[s]ubstantial or significant'' which modify the word 
``violations'' at the beginning of the first sentence, and by 
capitalizing the word ``federal'' in the first sentence. In a Federal 
Register notice dated December 10, 2003 (68 FR 68724, 68733), OSM 
approved CSR 199-1-4.8.c, except for the words ``substantial or 
significant,'' which were not approved. In this amendment, the State 
has deleted words ``substantial or significant.'' Therefore, any 
violations of Federal or State laws or regulations relating to 
explosives by a certified blaster could require disciplinary action. We 
find that, as amended, CSR 199-1-4.8.c is consistent with and no less 
effective than the Federal regulations at 30 CFR 850.15(b)(1)(iii), 
concerning violations of State or Federal explosives laws or 
regulations, and can be approved.
    h. CSR 199-1-4.8.f and 4.8.g. Subsections 4.8.f and 4.8.g are added 
and provide as follows:

    4.8.f. A pattern of conduct which is not consistent with 
acceptance of responsibility for blasting operations, i.e., repeated 
violations of state or federal laws pertaining to explosives; or
    4.8.g. Willful Conduct--The Secretary shall suspend or revoke 
the certification of a blaster for willful violations of State or 
Federal laws pertaining to explosive.

    In its submittal of the amendment to this provision, the WVDEP 
stated that the amendment was made because the wording was not 
consistent with previously approved rule 22-4-6.01, according to OSM. 
In addition, the WVDEP stated that this subsection has been reorganized 
and renumbered for clarity reasons, as required by the Council of Joint 
Rulemaking. These revisions are in response to a finding made by OSM as 
published in the Federal Register on December 10, 2003 (68 FR at 68733-
68734). There is no direct Federal counterpart to the new language at 
CSR 199-1-4.8.f. However, we find that the new language at CSR 199-1-
4.8.f is consistent with the Federal requirements concerning suspension 
or revocation of blaster certification at 30 CFR 850.15(b) and with the 
requirements concerning practical experience of blasters that is needed 
for certification at 30 CFR 850.14(a)(2). Therefore, we find that new 
CSR 199-1-4.8.f can be approved.
    We find that new CSR 199-1-4.8.g is consistent with and no less 
effective than the Federal regulations at 30 CFR 850.15(b)(1), which 
provide that a certification shall be suspended or revoked upon a 
finding of willful conduct, and can be approved. In addition, we find 
that new CSR 199-1-4.8.g satisfies the required program amendment 
codified in the Federal regulations at 30 CFR 948.16(a). The required 
amendment at 30 CFR 948.16(a) requires that the State must amend CSR 
199-1-4.9.a and 4.9.b, or must otherwise amend the West Virginia 
program, to provide that upon finding of willful conduct, the Secretary 
shall revoke or suspend a blaster's certification. The required 
amendment can, therefore, be removed.
    i. CSR 199-1-4.9. Subsection 4.9 concerns penalties, and has been 
amended, reorganized and renumbered. A new title, ``Suspension and 
Revocation'' has been added at Subsection 4.9.a. Existing Subsection 
4.9.a. has been renumbered as 4.9.a.1 and 4.9.a.2. Existing Subsection 
4.9.b has been renumbered as 4.9.a.3 and the reference to Subsection 
12.1 deleted. New Subsection 4.9.a.4 has been added.
    Existing Subsections 4.9.c and 4.9.d have been renumbered as 4.10 
and 4.11, respectively. Finally, existing Subsections 4.10, 4.11, and 
4.12 have been renumbered as Subsections 4.12, 4.13, and 4.14, 
respectively. As amended, Subsections 4.9, and 4.10 through 4.14 
provide as follows:

    4.9. Penalties.
    4.9.a. Suspension and Revocation.
    4.9.a.1. Suspension.--Upon service of a temporary suspension 
order, the certified blaster shall be granted a hearing before the 
Secretary to show cause why his or her certification should not be 
suspended or revoked.
    4.9.a.2. The period of suspension will be conditioned on the 
severity of the violation committed by the certified blaster and, if 
the violation can be abated, the time period in which the violation 
is abated. The Secretary may require remedial actions and measures 
and re-training and re-examination as a condition for re-instatement 
of certification.
    4.9.a.3. Revocation.--If the remedial action required to abate a 
suspension order, issued by the Secretary to a certified blaster, or 
any other action required at a hearing on the suspension of a 
blaster's certification, is not taken within the specified time 
period for abatement, the Secretary may revoke the blaster's 
certification and require the blaster to relinquish his or her 
certification card. Revocation will occur if the certified blaster 
fails to re-train or fails to take and pass reexamination as a 
requirement for remedial action.
    4.9.a.4. In addition to suspending or revoking the certification 
of a blaster, failure to comply with the requirements of this 
subsection may also result in further suspension or revocation of a 
blaster's certification.
    4.10. Reinstatement--Subject to the discretion of the Secretary, 
and based on a petition for reinstatement, any person whose blaster 
certification has been revoked, may, if the Secretary is satisfied 
that the petitioner will comply with all blasting law and rules, 
apply to re-take the blasters certification examination, provided 
the person meets all of the requirements for blasters certification 
specified by this subsection, and has completed all requirements of 
the suspension and revocation orders, including the time period of 
the suspension.
    4.11. Civil and Criminal Penalties.--Every certified blaster is 
subject to the individual civil and criminal penalties provided for 
in W. Va. Code Sec.  22-3-17.
    4.12. Hearings and Appeals.--Any certified blaster who is served 
a suspension order, revocation order, or civil and criminal 
sanctions is entitled to the rights of hearings and appeals as 
provided for in W. Va. Code Sec. Sec.  22-3-16 and 17.
    4.13. Blasting Crew.--Persons who are not certified and who are 
assigned to a blasting crew, or assist in the use of explosives, 
shall receive directions and on-the-job training from a certified 
blaster.
    4.14. Reciprocity With Other States.--The Secretary may enter 
into a reciprocal agreement with other states wherein persons 
holding a valid certification in that state may apply for 
certification in West Virginia, and upon approval by the Secretary, 
be certified without undergoing the training or examination 
requirements set forth in this rule.

    In its submittal of the amendments to this provision, the WVDEP 
stated that

[[Page 10782]]

the amendments provide clarification and remove an incorrect reference. 
In addition, the WVDEP stated that Subsection 4.9 has been reorganized 
and renumbered for clarity reasons, as required by the Council of Joint 
Rulemaking. The deletion of the reference at re-numbered Subsection 
4.9.a.3 eliminates an incorrect reference and improves the clarity of 
the provision. We find that the amendment to re-numbered Subsection 
4.9.a.3 does not render this provision inconsistent with the Federal 
blasting requirements at 30 CFR 850.15(b) and can be approved.
    We find that the new language at Subsection 4.9.a.4, concerning 
further suspension or revocation of a blasters certification upon 
failure to comply with the provisions of CSR 199-1-4.9, is not 
inconsistent with the Federal suspension and revocation provisions at 
30 CFR 850.15(b) and can be approved.
    As mentioned, the other changes listed above at Subsections 4.10 
through 4.14 resulted from the renumbering of Subsections 4.9 through 
4.12. The revisions are non-substantive changes that relate primarily 
to the reorganization of this section.

3. Committee Substitute for House Bill 3033

    WV Code 22-3-11 has been amended by adding new Subdivision 22-3-
11(h)(2)(B) to provide as follows:

    (2) In managing the Special Reclamation Program, the Secretary 
shall:
* * * * *
    (B) Conduct formal actuarial studies every two years and conduct 
informal reviews annually on the Special Reclamation Fund.

    On May 29, 2002 (67 FR 37610), OSM approved amendments to the West 
Virginia program that satisfied a required program amendment which 
required the State to eliminate the deficit in the State's alternative 
bonding system, commonly referred to as the Special Reclamation Fund 
(Fund), and to ensure that sufficient money will be available to 
complete reclamation, including the treatment of polluted water, at all 
existing and future bond forfeiture sites (Administrative Record Number 
WV-1308). An important component of OSM's approval of that amendment 
was the fact that West Virginia had previously established, at W. Va. 
Code 22-1-17, the Special Reclamation Fund Advisory Council (Advisory 
Council) to oversee the State's alternative bonding system (see OSM's 
approval in the December 28, 2001, Federal Register notice, 66 FR 
67446).
    One of the duties of the Advisory Council is to study the 
effectiveness, efficiency and financial stability of the Special 
Reclamation Fund. Another duty of the Advisory Council, as provided by 
W. Va. Code 22-1-17(f)(5), is to contract with a qualified actuary to 
determine the Fund's fiscal soundness. The first actuarial study was 
required to be completed by December 31, 2004. Additional actuarial 
studies must be completed every four years thereafter.
    In the proposed amendment at WV Code 22-3-11, West Virginia has 
added language at Subdivision 22-3-11(h)(2)(B) that requires the 
Secretary of the WVDEP to conduct actuarial studies every two years and 
to conduct annual informal reviews of the Special Reclamation Fund. As 
drafted, it appears that the actuarial studies required under new 
Subdivision 22-3-11(h)(2)(B) will be in addition to those performed 
under contract of the Advisory Council, because the State has not 
submitted any amendment to the statutory requirements of the Advisory 
Council at W. Va. Code 22-1-17. However, State officials acknowledge 
that the actuarial studies to be conducted under Subdivision 22-3-
11(h)(2)(B) are to be done in lieu of those required under Subdivision 
22-1-17(f)(5). The State intends to submit an amendment in the future 
that will correct this oversight. Nevertheless, we still find that the 
new requirement at Subdivision 22-3-11(h)(2)(B) is consistent with the 
bases of our previous approvals of State program amendments regarding 
the financial stability of the State's Special Reclamation Fund. The 
bi-annual actuarial studies and the annual, informal financial reviews 
of the Special Reclamation Fund should assist the WVDEP and the State 
in ensuring that sufficient money will be available to complete land 
reclamation and water treatment at existing and future bond forfeiture 
sites within the State, a requirement that parallels the criterion for 
approval of a State's alternative bonding system under 30 CFR 
800.11(e)(1). Therefore, we are approving the amendment to Subdivision 
22-3-11(h)(2)(B) of the W. Va. Code regarding the State's Special 
Reclamation Fund.

4. House Bill 3236

    This Bill amended the W. Va. Code by adding new Section 22-3-11a 
and new Section 22-3-32a to provide as follows:

    22-3-11a. Special reclamation tax; clarification of imposition 
of tax; procedures for collection and administration of tax; 
application of Tax Procedure and Administration Act and Tax Crimes 
and Penalties Act.
    (a) It is the intent of the Legislature to clarify that from the 
date of its enactment, the special reclamation tax imposed pursuant 
to the provisions of section eleven of this article is intended to 
be in addition to any other taxes imposed on persons conducting coal 
surface mining operations including, but not limited to the tax 
imposed by section thirty-two of this article, the tax imposed by 
article twelve-b, chapter eleven of this code, the taxes imposed by 
article thirteen-a of said chapter and the tax imposed by article 
thirteen-v of said chapter.
    (b) Notwithstanding any other provisions of section eleven of 
this article to the contrary, under no circumstance shall an 
exemption from the taxes imposed by article twelve-b, thirteen-a or 
thirteen-v, chapter eleven of this code be construed to be an 
exemption from the tax imposed by section eleven of this article.
    (c) When coal included in the measure of the tax imposed by 
section eleven of this article is exempt from the tax imposed by 
article twelve-b, chapter eleven of this code, the tax imposed by 
section eleven of this article shall be paid to the tax commissioner 
in accordance with the provisions of sections four through fourteen, 
inclusive, article twelve-b, chapter eleven of this code, which 
provisions are hereby incorporated by reference in this article.
    (d) General procedure and administration.--Each and every 
provision of the ``West Virginia Tax Procedure and Administration 
Act'' set forth in article ten, chapter eleven of the code applies 
to the special tax imposed by section eleven of this article with 
like effect as if such act were applicable only to the special tax 
imposed by said section eleven and were set forth in extenso in this 
article, notwithstanding the provisions of section three of said 
article ten.
    (e) Tax crimes and penalties.--Each and every provision of the 
``West Virginia Tax Crimes and Penalties Act'' set forth in article 
nine of said chapter eleven applies to the special tax imposed by 
section eleven of this article with like effect as if such act were 
applicable only to the special tax imposed by said section eleven 
and set forth in extenso in this article, notwithstanding the 
provisions of section two of said article nine.
    22-3-32a. Special tax on coal; clarification of imposition of 
tax; procedures for collection and administration of tax.
    (a) It is the intent of the Legislature to clarify that from the 
date of its enactment, the special tax on coal imposed pursuant to 
the provisions of section thirty-two of this article is intended to 
be in addition to any other taxes imposed on every person in this 
state engaging in the privilege of severing, extracting, reducing to 
possession or producing coal for sale profit or commercial use 
including, but not limited to the tax imposed by section eleven of 
this article, the tax imposed by article twelve-b, chapter eleven of 
this code, the taxes imposed by article thirteen-a of said chapter 
and the tax imposed by article thirteen-v of said chapter.
    (b) Notwithstanding any other provisions of section thirty-two 
of this article to the contrary, under no circumstance shall an 
exemption from the taxes imposed by article twelve-b, thirteen-a or 
thirteen-v, chapter

[[Page 10783]]

eleven of this code be construed to be an exemption from the tax 
imposed by section thirty-two of this article.
    (c) When coal included in the measure of the tax imposed by 
section thirty-two of this article is exempt from the tax imposed by 
article twelve-b, chapter eleven of this code, the tax imposed by 
section thirty-two of this article shall be paid to the tax 
commissioner in accordance with the provisions of sections four 
through fourteen, inclusive, article twelve-b, chapter eleven of 
this code, which provisions are hereby incorporated by reference in 
this article.

    The HB 3236 provides for two new sections of the West Virginia 
Code, designated Sections 22-3-11a and 22-3-32a. These new provisions 
relate to the special reclamation tax (at W. Va. Code 22-3-11), which 
provides revenue to the State's Special Reclamation Fund, and the 
special tax on coal (at W. Va. Code 22-3-32), which is used to 
administer the State's approved regulatory program. The preamble to HB 
3236 states that the new provisions are intended to clarify that both 
of these taxes apply to the production of thin seam coal and provide 
for payment thereof. Thus, this change will result in additional 
revenue for the reclamation of bond forfeiture sites and for program 
support. The HB 3236 also provides that the special reclamation tax is 
subject to the West Virginia Tax Crimes and Penalties Act and the West 
Virginia Tax Procedure and Administration Act.
    While there is no direct Federal counterpart to the clarifications 
provided at new W. Va. Code 22-3-11a, we find that the provision is not 
inconsistent with SMCRA section 509(b) and 30 CFR 800.11(e), which 
provide that an alternative bonding system must have available 
sufficient revenue to complete all reclamation obligations at any given 
time. The proposed revision will enable the State to meet its bond 
forfeiture reclamation obligations under the Special Reclamation Fund. 
Therefore, we find that new W. Va. Code 22-3-11a is not inconsistent 
with the aforementioned Federal requirements and can be approved.
    Further, there is no direct Federal counterpart to the 
clarifications provided at new W. Va. Code 22-3-32a. However, section 
503(a)(3) of SMCRA, concerning State program approval, provides that a 
State regulatory authority must have, among other things, sufficient 
funding to enable the State to regulate surface coal mining and 
reclamation operations in accordance with the requirements of SMCRA. We 
find that the revisions provided at new W. Va. Code 22-3-32a are not 
inconsistent with SMCRA section 503(a)(3) and can be approved.

5. CSR 38-2-14.14.g.2.A.6 Removal of Erosion Protection Zone (EPZ)

    This amendment consists of information provided by the WVDEP, 
including a draft memorandum, to support its assertion that OSM should 
reverse its previous disapproval of language concerning EPZ at CSR 38-
2-14.14.g.2.A.6. In its submittal concerning this provision, the WVDEP 
stated that in a letter to OSM dated March 8, 2005 (the letter's date 
was March 9, 2005, Administrative Record Number WV-1418), the State had 
explained its position on EPZ and the circumstances when the EPZ could 
be left in place as a permanent structure. The WVDEP's March 9, 2005, 
letter was in response to OSM's disapproval of language concerning EPZ 
at CSR 38-2-14.14.g.2.A.6 that was part of a proposed amendment 
submitted to OSM by letter dated March 18, 2003 (Administrative Record 
Number WV-1352). The language was not approved, WVDEP stated, based on 
the lack of U.S. Environmental Protection Agency (EPA) concurrence with 
the State's proposed language. Background information on OSM's previous 
disapproval of language concerning EPZ at CSR 38-2-14.14.g.2.A.6 is 
presented below.
    Under the Federal regulations at 30 CFR 732.17(h)(11)(ii), OSM is 
required to obtain written concurrence from EPA for proposed provisions 
of a State 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 EPA for concurrence and comments on the proposed 
amendments that were submitted to OSM by letter dated March 18, 2003 
(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 had concerns about the requirement of EPZ associated with 
single-lift valley fills at CSR 38-2-14.14.g.1 (Durable Rock Fills).
    OSM published its decision on a proposed West Virginia program 
amendment that addressed, in part, the addition of new language 
concerning EPZ related to durable rock fills on July 7, 2003 (see 68 FR 
40157, finding 19, pages 40161 and 40162). In that finding, OSM did not 
approve language at CSR 38-2-14.14.g.2.A.6 that would have allowed the 
permanent retention of EPZ if approval were granted in the reclamation 
plan. In particular, OSM did not approve the words ``Unless otherwise 
approved in the reclamation plan'' because approval would have been 
inconsistent with EPA's conditional concurrence to remove fill material 
associated with EPZs from streams and to reconstruct the stream 
channels after mining.
    The EPA stated that it understands 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.
    The EPA stated that it was 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.
    The EPA stated that it concurred with the proposed revisions 
submitted by the State on March 18, 2003, 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, it (EPA) 
recommends that the single lift method be replaced by the more 
environmentally favorable approach of

[[Page 10784]]

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, OSM did not approve 
the words ``Unless otherwise approved in the reclamation plan'' at CSR 
38-2-14.14.g.2.A.6 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 (see the July 7, 2003, Federal Register, Finding 19, pages 40161 
and 40162). In addition, OSM approved 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 its June 13, 2005, submittal letter, the WVDEP requested that 
OSM reconsider its decision to disapprove certain language at CSR 38-2-
14.14.g.2.A.6 (Administrative Record Number WV-1421). In support of its 
request, the WVDEP stated that following the submittal of its March 9, 
2005, letter, discussion ensued among representatives of WVDEP, EPA, 
and OSM. The WVDEP stated that EPA expressed concern that the EPZ rule 
did not reference section 404 of the Clean Water Act and that it wasn't 
clear that the operator had to demonstrate leaving the EPZ would 
provide benefits to or protection to the environment and/or the public. 
The WVDEP stated that it reiterated that the present wording of the 
State rule requires removal and/or reclamation of EPZ areas and 
restoration of the stream, unless otherwise approved by the reclamation 
plan. The WVDEP further stated that the circumstances under which such 
areas could become permanent would be at the discretion of WVDEP, with 
a demonstration by the applicant to the satisfaction of the Secretary 
of the WVDEP that the environment/public benefits outweigh any 
anticipated impacts.
    The WVDEP also stated that in addition to the mining requirements 
imposed by WVDEP, such construction is subject to provisions of section 
404 of the Clean Water Act and under the ultimate jurisdiction of the 
U.S. Army Corps of Engineers and EPA. The WVDEP also submitted a draft 
memorandum to its staff for OSM's consideration in support of its 
request that OSM reconsider its previous decision on the EPZ provision 
at CSR 38-2-14.14.g.2.A.6. The draft memorandum submitted by the WVDEP 
is quoted below:

Interoffice Memorandum

    To: All DMR Employees.
    From: Randy Huffman, Director.
    Date:
    Subject: Durable rock fills with erosion protection zone.
    38-2-14.14.g.2.A.6 requires removal and reclamation of erosion 
protection zone, and restoration of the stream and does provide that 
erosion protection zone may become permanent structure approved in 
the reclamation plan. It states:
    ``Unless otherwise approved in the reclamation plan, the erosion 
protection zone shall be removed and the area upon which it was 
located shall be reg[ra]ded and revegetated in accordance with the 
reclamation plan.''
    For an erosion protection zone to become a permanent structure, 
the applicant must provide a demonstration to the satisfaction of 
the Secretary that leaving the erosion protection zone provides 
benefits to or protection to the environment and/or public. Such 
benefits or protection include, but are not limited to; runoff 
attenuation, wildlife and wetland enhancement, and stream scour 
protection. This approval will be contingent upon the applicant 
obtaining all other necessary permits and/or approvals.

    On November 22, 2005, EPA acknowledged that since it provided its 
conditional concurrence on June 13, 2003, discussions with WVDEP and 
OSM provided it additional information which lessened its concern about 
EPZs (Administrative Record Number WV-1449). EPA further stated that it 
was emphasized that EPZs would be left in place only where 
environmental/public benefits would outweigh any anticipated impacts 
and that EPZ construction would be subject to CWA section 404 under the 
jurisdiction of the U.S. Army Corps of Engineers and EPA. EPA concluded 
that these requirements were reiterated in the State's submission to 
OSM. With this understanding, EPA agreed to remove its condition for 
concurrence with CSR 38-2-14.14.g.2.A.6. Therefore, we are approving 
the provision at CSR 38-2-14.14.g.2.A.6 which provides, ``Unless 
otherwise approved in the reclamation plan,'' and we find that the 
disapproval, which is codified at 30 CFR 948.12(g), has been fully 
resolved.

6. State Water Rights and Replacement Policy

    WVDEP submitted a policy dated August 1995 regarding water rights 
and replacement (Administrative Record Number WV-1425). As noted in the 
policy, its purpose is to define the time periods for providing 
temporary and permanent water replacement. This policy is to supplement 
the proposed regulatory revisions that the State made at CSR 38-2-
14.5(h). The policy is in response to our Part 732 notification dated 
June 7, 1996, regarding subsidence and water replacement 
(Administrative Record Number WV-1037(a)). The Federal regulations at 
30 CFR 817.41(j) require prompt replacement of a residential water 
supply that is contaminated, diminished, or interrupted by underground 
mining activities conducted after October 24, 1992. We advised WVDEP 
that its program lacked guidance concerning timing of water supply 
replacement. A proposed statutory revision that was intended to address 
this issue failed to pass the Legislature. The policy is intended to 
satisfy the Federal requirement by setting forth the time periods 
within the State program for providing temporary and permanent water 
replacement. The policy provides as follows:

WV Division of Environmental Protection
Office of Mining and Reclamation
Inspection and Enforcement

    Series: 14
    Pg. No: 1 of 1
    Revised: 8-95
    Subject: Water Rights and Replacement.
    1. Purpose: Define time periods as they relate to water rights 
and replacement.
    2. Definitions:
    3. Legal Authority: 22-3-24
    4. Policy/Procedures: Upon receipt of notification that a water 
supply was adversely affected by mining, the permittee shall provide 
drinking water to the user within twenty-four (24) hours.
    Within seventy two (72) hours, the permittee shall have the user 
hooked up to a temporary water supply. The temporary supply shall be 
hooked up to existing plumbing, if any, to allow the user to conduct 
all normal activities associated with domestic water use. This 
includes drinking, cooking, bathing, washing, non commercial 
farming, and gardening.
    Within thirty (30) days of notification, the permittee shall 
begin activities to establish a permanent water supply or submit a 
proposal to the WVDEP outlining the measures and timetables to be 
utilized in establishing a permanent supply. The total elapsed time 
from notification to permanent supply hook-up cannot exceed two (2) 
years.
    The permittee is responsible for payment of operation and 
maintenance costs on a replacement water supply in excess of 
reasonable and customary delivery costs that the user incurred.
    Upon agreement by the permittee and the user (owner), the 
obligation to pay such operation and maintenance costs may be 
satisfied by a one-time lump sum amount agreed to by the permittee 
and the water supply user (owner).

    The Federal provision at 30 CFR 817.41(j) was approved on March 31, 
1995 (60 FR 16722, 16749). In the preamble to that approval, OSM 
provided the following guidance

[[Page 10785]]

concerning the meaning of the term ``prompt replacement'' that was 
intended to assist regulatory authorities in deciding if water supplies 
have been ``promptly'' replaced:

    OSM believes that prompt replacement should typically provide: 
emergency replacement, temporary replacement, and permanent 
replacement of a water supply. Upon notification that a user's water 
supply was adversely impacted by mining, the permittee should 
reasonably provide drinking water to the user within 48 hours of 
such notification. Within two weeks of notification, the permittee 
should have the user hooked up to a temporary water supply. The 
temporary water supply should be connected to the existing plumbing, 
if any, and allow the user to conduct all normal domestic usage such 
as drinking, cooking, bathing, and washing. Within two years of 
notification, the permittee should connect the user to a 
satisfactory permanent water supply.

    We find that West Virginia's Water Rights and Replacement Policy 
dated August 1995 is consistent with the Federal guidelines concerning 
the ``prompt replacement'' of water supply quoted above. The State 
policy provides for emergency, temporary, and permanent replacement of 
a water supply as does the Federal guidance. The State's policy also 
provides reasonable timeframes for replacement that are consistent with 
the Federal guidance. We find that the provision of the State's policy 
which provides that the permittee is responsible for payment of 
operation and maintenance costs on a replacement water supply in excess 
of reasonable and customary delivery costs that the user incurred is 
consistent with the Federal definition of ``replacement of water 
supply'' at 30 CFR 701.5. We also find that the State's policy 
provision which provides that upon agreement by the permittee and the 
user (owner), the obligation to pay such operation and maintenance 
costs may be satisfied by a one-time lump sum amount agreed to by the 
permittee and the water supply user (owner) is consistent with the 
Federal definition of ``replacement of water supply'' at 30 CFR 701.5, 
Subsection (a). Therefore, we find that the State's Water Rights and 
Replacement Policy is consistent with the Federal regulations at 30 CFR 
817.41(j) concerning the prompt replacement of water supply, and it can 
be approved.

7. Bond Release Certification

    The State submitted the Permittee's Request for Release Form dated 
March 2005 (Administrative Record Number WV-1424). The form was being 
submitted in response to our Part 732 notification dated July 22, 1997 
(Administrative Record Number WV-1071). In that letter, we advised the 
State that the Federal regulations at 30 CFR 800.40(a)(3) were amended 
to require that each application for bond release must include a 
written, notarized statement by the permittee affirming that all 
applicable reclamation requirements specified in the permit have been 
completed. We notified WVDEP that the State regulations at CSR 38-2-
12.2 did not contain such a requirement. In response, the State revised 
its bond release form by adding new item Number 11, which requires that 
all copies of the Permittee's Request For Release Form include the 
following: ``11. A notarized statement by the permittee that all 
applicable reclamation requirements specified in the permit have been 
completed.'' Therefore, we find that, with the addition, the revised 
State form dated March 2005 is consistent with the Federal regulations 
at 30 CFR 800.40(a)(3), and it can be approved.

IV. Summary and Disposition of Comments

Public Comments

    On August 26, 2005, we published a Federal Register notice and 
asked for public comments on the amendment (Administrative Record 
Number WV-1429). In addition, on September 9, 2005, we solicited 
comments from various interest groups within the State on the proposed 
amendment (Administrative Record Number WV-1433). At the request of the 
West Virginia Coal Association (WVCA), the comment period was extended 
for five days and closed on September 30, 2005 (Administrative Record 
Number WV-1437). We received comments from the WVCA (Administrative 
Record Number WV-1445).
    1. House Bill 3033. The WVCA requested that OSM suspend further 
review and approval of the provisions that OSM cited in the proposed 
rule notice published on August 26, 2005. The WVCA stated that OSM's 
review of the amendment at W. Va. Code 22-3-11(h)(2)(A) and 22-3-
11(h)(2)(B) is inappropriate, because the changes do not present 
substantive changes to the West Virginia regulatory program. As we 
stated above at ``Section II. Submission of the Amendment'', we have 
determined that the amendment to W. Va. Code 22-3-11(h)(2)(A) is non-
substantive and, therefore, does not require OSM's approval. Therefore, 
we are not addressing WVCA's comments regarding W. Va. Code 22-3-
11(h)(2)(A).
    The WVCA asserted that OSM's decision to review and approve 
language at W. Va. Code 22-3-11(H)(2)(B) is inappropriate for the same 
reasons that OSM stated that it would not review other provisions at W. 
Va. Code 22-3-11:

    These new provisions only direct the Secretary of WVDEP to 
conduct various studies and authorize the Secretary of WVDEP to 
propose legislative rules as appropriate. These provisions do not 
modify any duties or functions under the approved West Virginia 
program and do not, therefore, require OSM's approval.

    The WVCA further stated that while the amendment does modify the 
duties and functions of the Secretary of WVDEP, it requires only 
studies and informal review. The WVCA asserted that these studies and 
reviews do not represent substantive changes to the approved West 
Virginia program. Such review and approval, the WVCA asserted, 
``equates to federal interference into the inter-workings of the 
approved state program.''
    We disagree. As we discussed above at Finding 3, on May 29, 2002 
(67 FR 37610), OSM approved amendments to the West Virginia program 
that satisfied a required program amendment which required the State to 
eliminate the deficit in the State's alternative bonding system (ABS) 
and to ensure that sufficient money will be available to complete 
reclamation, including the treatment of polluted water, at all existing 
and future bond forfeiture sites (Administrative Record Number WV-
1308). An important component of OSM's approval of that amendment was 
the fact that West Virginia had previously established, at W. Va. Code 
22-1-17, the Special Reclamation Fund Advisory Council (Advisory 
Council) to oversee the State's ABS (see OSM's approval in the December 
28, 2001, Federal Register notice at 66 FR 67446). One of the duties of 
the Advisory Council is to study the effectiveness, efficiency and 
financial stability of the Special Reclamation Fund. Another duty of 
the Advisory Council, as provided by W. Va. Code 22-1-17(f)(5), is to 
contract with a qualified actuary to determine the Fund's fiscal 
soundness. Following the initial actuarial study, additional studies 
are to be conducted every four years.
    As drafted, it appears that the actuarial studies required under 
new Subdivision 22-3-11(h)(2)(B) will be in addition to those performed 
under contract of the Advisory Council, because the State has not 
submitted any amendment to the statutory requirements of the Advisory 
Council at W. Va. Code 22-1-17. However, State officials acknowledge 
that the actuarial studies to be conducted under

[[Page 10786]]

Subdivision 22-3-11(h)(2)(B) are to be done in lieu of those required 
under Subdivision 22-1-17(f)(5). The State intends to submit an 
amendment in the future that will correct this oversight. Consequently, 
the amendment at Subdivision 22-3-11(h)(2)(B) appears to represent a 
significant and substantive change that may greatly assist the WVDEP in 
assessing the financial stability of the State's ABS.
    At Finding 3 above, we found that the new requirements at 
Subdivision 22-3-11(h)(2)(B) are consistent with the bases of our 
previous approvals of State program amendments regarding the financial 
stability of the State's Special Reclamation Fund. The bi-annual 
actuarial studies and the annual informal reviews of the Special 
Reclamation Fund should assist the State in ensuring that sufficient 
money will be available to complete land reclamation and water 
treatment at existing and future bond forfeiture sites within the 
State, a requirement that parallels the criterion for approval of a 
State's alternative bonding system under 30 CFR 800.11(e)(1).
    2. Revisions to CSR 38-2-7.5.j.3.B. This provision concerns the 
recovery and use of soil, and the State is deleting language that 
provides as follows:

* * * except for those areas with a slope of at least 50%, and other 
areas from which the applicant affirmatively demonstrates and the 
Secretary finds that soil cannot reasonably be recovered.

    As we discuss above at Finding 2.kk, this revision is intended to 
comply with the required program amendment codified in the Federal 
regulations at 30 CFR 948.16 (kkkkk). The requirement at 30 CFR 948.16 
(kkkkk) provides that CSR 38-2-7.5.j.3.B must be amended by deleting 
the phrase, ``except for those areas with a slope of at least 50%,'' 
and by deleting the phrase, ``and other areas from which the applicant 
affirmatively demonstrates and the Director of the WVDEP finds that 
soil cannot reasonably be recovered.''
    The WVCA requested that OSM reconsider the required amendment 
codified in the Federal regulations at 30 CFR 948.16(kkkkk). The WVCA 
stated that the State's rule language should be retained because of its 
importance to serious safety concerns on certain areas, especially on 
steep slopes. The WVCA also stated that a similar provision concerning 
an exception for areas with a slope of at least 50%, at CSR 38-2-
7.4.b.1.D.2, was approved by OSM after it had reconsidered the required 
amendment at 30 CFR 948.16.(vvvv), which had required the deletion of 
the 50% provision at Subsection 7.4.b.1.D.2. The WVCA asserted that the 
same reasoning relied upon by OSM in its reconsideration of the 50% 
provision at CSR 38-2-7.4.b.1.D.2 applies with respect to the proposed 
revision at CSR 38-2-7.5.j.3.B currently at issue. Further, WVCA 
stated, OSM has admitted in past rulemaking that the Federal 
regulations contain no counterparts to CSR 38-2-7.5 concerning 
Homesteading as a post-mining land use. Therefore, WVCA asserted that 
OSM's concerns with respect to this section of the rules are misplaced 
and fall outside of OSM's statutorily-granted authority of review and 
approval of State program amendments.
    We disagree. We reviewed the required program amendment codified in 
the Federal regulations at 30 CFR 948.16(kkkkk) and we believe the 
State's former rule language remains a problem for the following 
reasons. The State's provisions concerning the 50-percent slope and 
related provisions for Commercial Forestry, at CSR 38-2-7.4.b.1.D.2, 
differ significantly from those for Homesteading, at CSR 38-2-
7.5.j.3.B, such that the rationale we used to approve the 50-percent 
provision in the Commercial Forestry rules is not applicable to the 
Homesteading rules. Specifically, concerning the Commercial Forestry 
rule, OSM asserted that while the topsoil might not be separately 
recovered on slopes over 50 percent, the soil would be recovered with 
the underlying brown sandstone that is required to be recovered by 
related provisions at CSR 38-2-7.4.b.1.D.3, D.4., and D.5. However, the 
50-percent slope provision and related provisions in the Homesteading 
rule do not lend themselves to that same rationale. The Homesteading 
provision at CSR 38-2-7.5.j.3.D provides that if the brown sandstone 
from within 10 feet of the soil surface cannot reasonably be recovered, 
``brown sandstone taken from below 10 feet of the soil from anywhere in 
the permit area may be substituted.'' This appears to mean that the 
upper 10 feet of material together with the topsoil may not be saved, 
and material below the 10-foot level from anywhere on the permit area 
could be substituted for it. This still renders the provision less 
effective than the Federal regulations at 30 CFR 816.22 concerning 
topsoil and subsoil, because the substitution of other material for 
topsoil may be based upon criteria other than quality of the substitute 
material.
    We are also concerned with the language at CSR 38-2-7.5.j.3.B that 
would exempt ``other areas from which the applicant affirmatively 
demonstrates and the Secretary finds that soil cannot reasonably be 
recovered.'' This language also appears to render the provision less 
effective than the Federal requirements. When approving the 50-percent 
slope provision for Commercial Forestry, we recognized concern about 
the safety of trying to separately recover soil from other material 
within the top 10 feet on such steep slopes. The safety issue does not 
seem applicable to the ``other areas'' provision for Homesteading. In 
addition, the phrase ``cannot reasonably be recovered'' is not in the 
approved Commercial Forestry rules. Therefore, as noted above at 
Finding 3, we are approving the State's deletion of the language that 
concerns the exception for 50-percent slopes and other areas where soil 
cannot reasonably be recovered.
    3. Erosion Protection Zone CSR 38-2-14.14.g.2.A.6. The WVCA stated 
that it supports the WVDEP's position that OSM should reconsider its 
initial disapproval of language regarding the Erosion Protection Zone 
(EPZ) related to durable rock fills. The WVCA stated that it believes 
that the information supplied by WVDEP should be sufficient to address 
the concerns of both OSM and EPA. The WVCA also stated that it also 
maintains that the ability to leave the EPZ in place after fill 
construction is essential to overall regulatory success of the revised 
valley fill construction rules. The WVCA also stated that OSM's 
decision to review and approve provisions of State regulations that 
have no parallel in the Federal program has jeopardized the overall 
success of new State regulations.
    As discussed above under Finding 5, EPA reconsidered its earlier 
decision regarding EPZs. EPA stated that recent discussions with WVDEP 
and OSM provided it additional information which lessened its concern 
about EPZs. EPA noted that EPZs would be left in place only where 
environmental/public benefits would outweigh any anticipated impacts 
and that EPZ construction would be subject to CWA section 404 under the 
jurisdiction of the U.S. Army Corps of Engineers and EPA. Because these 
requirements were reiterated in the State's submission to OSM, EPA 
agreed to remove its condition for concurrence with CSR 38-2-
14.14.g.2.A.6.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the West Virginia program 
(Administrative Record Number WV-1427). We received comments from the 
U.S. Department of Labor, Mine Safety and Health

[[Page 10787]]

Administration (MSHA) (Administrative Record Number WV-1435). MSHA 
stated that its review of the State's amendments revealed that only 
those amendments which addressed impoundment design/construction and 
blasting practices were relevant to miners' health and safety. MSHA 
stated that it had determined that there was no inconsistency in those 
areas of the State's amendment with MSHA's regulations.
    The Department of the Interior, National Park Service (NPS) 
responded with comments (Administrative Record Number WV-1434). The NPS 
commented on the amendment to CSR 38-2-7.4.b.1.A.3(b), and the phrase 
``an approved geologist shall create a certified geology map showing * 
* *.'' We note that this language is currently part of the approved 
West Virginia program, was not amended, and we did not request comment 
on that language. Therefore, we will not address that comment.
    The NPS commented on CSR 38-2-7.4.b.1.B.1, and the phrase ``* * * 
that a professional soil scientist employed by the Secretary * * *'' 
and again at CSR 38-2-7.4.b.1.I.1, and the phrase ``* * * a 
professional soil scientist shall certify * * *.'' The NPS stated that 
soils scientists also come with national or State certifications. 
Though West Virginia does not have a certification program for soils 
scientists, the West Virginia Association of Professional Soils 
Scientists (WVAPSS) does have a registry of certified ``Professional 
Soils Scientists.'' The NPS recommended changing the language to 
specifically reflect a certified professional status for performing 
soils analysis. The NPS also stated that the proposed revisions call 
for the use of registered professional foresters or registered 
professional engineers. By requiring certified soils scientists and 
geologists, the NPS stated, the State would be creating a coherent and 
professional image throughout the WVDEP regulatory program.
    In response, we note that there is no specific Federal counterpart 
to the language at CSR 38-2-7.4.b.1.B.1. The intent of this provision 
is to require that a professional soil scientist employed by the 
Secretary of the WVDEP review and field verify the soil slope and 
sandstone mapping information provided in a commercial forestry and 
forestry reclamation plan. The amendment merely deletes the word 
``certified'' because West Virginia does not have a State certification 
system for soil scientists. As we noted above in Finding 2.o, we find 
that as amended, CSR 38-2-7.4.b.1.B.1 is not inconsistent with the 
requirements of SMCRA at section 515(c)(3)(B) and the Federal 
regulations at 30 CFR 785.14(c) concerning mountaintop removal mining 
operations. However, as suggested by NPS, and though not mandatory, we 
did encourage the State to require the use of a registry such as the 
WVAPSS or a similar one.
    The U.S. Department of Agriculture, Forest Service responded with 
comments (Administrative Record Number WV-1430). The U.S. Forest 
Service urged that the amendment contain stronger language to restrict 
using any seed or mulch that is not certified as weed free. In 
response, the U.S. Forest Service's comments concern provisions that 
were not amended by the State. Therefore, we will not address those 
comments here.
    The U.S. Forest Service also encouraged the involvement of the West 
Virginia Division of Forestry to provide the WVDEP evidence of meeting 
the various standards of success when pertaining to forestry-related 
items. For example, the U.S. Forest Service stated that CSR 38-2-9.3.e, 
concerning final inspection for final bond release, could be re-written 
to require that, ``[u]pon receipt of such request, the WV Division of 
Forestry shall conduct an inspection to verify the final vegetative 
evaluation for the Secretary.'' The U.S. Forest Service stated that 
involving the WV Division of Forestry for final inspections and 
certification for the Secretary of the WVDEP assures that an impartial 
entity with both the expertise and the public trust carries out that 
assignment rather than continuing to rely on a forestry consultant. In 
response, while this recommendation by the U.S. Forest Service has 
merit, the requirement at CSR 38-2-9.3.e that the Secretary of the 
WVDEP conduct the inspection for final bond release is no less 
effective than the Phase III bond release requirements in the Federal 
regulations at 30 CFR 800.40(c)(3). In addition, WVDEP has already 
solicited and received approval from the WV Division of Forestry and 
the Wildlife Resources Section of the Division of Natural Resources 
with regard to the State's stocking rates and planting arrangements as 
required by 30 CFR 816.116(b)(3)(i).

Environmental Protection Agency (EPA) Concurrence and Comments

    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.).
    By letter dated August 2, 2005, we requested comments and the 
concurrence from EPA on the State's program amendments (Administrative 
Record Number WV-1426). EPA responded by letter dated November 22, 2005 
(Administrative Record Number WV-1449) and further clarified its 
response on December 13, 2005 (Administrative Record Number WV-1452).
    On November 22, 2005, EPA advised us that it had reviewed the 
State's proposed revisions that we had submitted, and it had not 
identified any apparent inconsistencies with CWA, Clean Air Act, or 
other statutes and regulations under EPA's jurisdiction. EPA, 
therefore, concurred with the proposed State revisions pertaining to 
environmental standards.
    EPA also provided the following comments on the proposed revisions.
1. Environmental Protection Zones--CSR 38-2-14.14.g.2.A.6
    According to EPA, this proposed revision allows placement of 
erosion protection zones (EPZs) between valley fills and sedimentation 
ponds. EPZs consist of low, wide fills up to a few hundred feet long 
depending on the heights of the valley fills. Their purpose would be to 
slow down storm runoff from valley fills, prior to completion of 
reclamation and revegetation, in order to prevent scouring of 
sedimentation ponds.
    EPA stated that on June 13, 2003, it provided conditional 
concurrence with this same proposed revision. Its concern was that the 
stream fills associated with EPZs would remain permanently. EPA's 
condition for concurrence required that the stream fills would be 
removed and stream channel reconstructed after completion of mining and 
reclamation.
    According to EPA, since then, information received during its 
discussions with WVDEP and OSM lessened its concern about EPZs. EPA 
acknowledged that EPZs would be left in place only where environmental/
public benefits would outweigh any anticipated impacts and that EPZ 
construction would be subject to CWA section 404 under the jurisdiction 
of the U.S. Army Corps of Engineers and EPA. According to EPA, these 
requirements were reiterated in a June 13, 2005, letter from WVDEP to 
OSM, a copy of which was included in documents submitted to EPA on 
August 2, 2005. It was with this understanding that EPA removed its 
condition for concurrence with CSR 38-2-14.14.g.2.A.6.
    As discussed above under Finding 5, OSM is now approving, with 
EPA's concurrence, the provision at CSR 38-

[[Page 10788]]

2-14.14.g.2.A.6 which provides, ``Unless otherwise approved in the 
reclamation plan.'' In the future, EPZs will be left in place only 
where environmental/public benefits will outweigh any anticipated 
impacts, and EPZ construction will be subject to CWA section 404 under 
the jurisdiction of EPA and the U.S. Army Corps of Engineers. WVDEP's 
draft EPZ policy identified under Finding 5 further describes the type 
of benefits that must be demonstrated before an EPZ can become a 
permanent structure.
2. Alternative Bonding Requirements--House Bill 3033
    EPA acknowledged that House Bill 3033 proposes feasibility studies 
for alternative bonding approaches, including a possible separate 
funding mechanism for water treatment. EPA said that it supports all 
efforts toward finding the most effective approaches for preventing 
drainage problems after mine closure. To prevent perpetual postmining 
drainage problems, EPA stated that it is important to have a well 
funded bonding program to provide for postmining contingencies. Also 
important, is an effective permit review program which identifies acid-
producing potentials of proposed mining sites and denies permits where 
it is determined that treatment of postmine drainage would likely be 
necessary.
    OSM agrees that an alternative bonding system must provide 
sufficient revenue to complete the reclamation plans for any sites that 
may be in default at any time as required by 30 CFR 800.11(e). As 
discussed above, we concluded that the requirement for the State to 
pursue cost effective alternative water treatment strategies does not 
represent a substantive change to the State program, and it has no 
immediate effect on its implementation. Furthermore, we concluded that 
if the State does identify any needed regulatory revisions, such 
changes will be subject to further review and approval. Therefore, OSM 
determined that the proposed State revision at W.Va. Code 22-3-
11(h)(2)(A) regarding alternative water treatment strategies does not 
require our approval.
3. Good Samaritan Act--House Bill 2333
    EPA stated that the intent of House Bill 2333 is to increase 
incentives for non-profit volunteer groups to reclaim abandoned mines 
and abate mine drainage. According to EPA, the bill is intended to 
provide immunity from civil liability, under the laws of West Virginia, 
for injury or pollution problems which may result from these 
activities. EPA said that to avoid projects which have the potentials 
for creating additional pollution, the bill requires WVDEP's review and 
approval and a determination that the completed project would likely 
result in improved water quality. EPA stated that it supports volunteer 
programs for abating abandoned mine drainage and certainly does not 
want liability concerns to dissuade good faith efforts. EPA noted that 
its non-point source program under CWA section 319 is very active in 
providing funds to citizen watershed organizations for addressing these 
situations throughout the coal-mining states. However, to assure that 
this State legislation is clearly understood to accomplish its intended 
purpose and not to limit EPA's jurisdiction or authority in any way, 
EPA requested that that following text be included in House Bill 2333, 
``Nothing herein is intended to abrogate the jurisdiction or authority 
of the United States Environmental Protection Agency.''
    In response, we notified EPA Region III, that apparently there was 
some concern about the intended purpose of the State's legislation and 
that it could limit EPA's jurisdiction or authority. We noted that the 
State's statutory provisions cannot be amended without further 
legislative action. EPA responded on December 13, 2005, and stated that 
it was not their intention that their recommendation should be 
interpreted as a condition of concurrence. EPA acknowledged that it did 
not wish to delay implementation of this provision and rather than 
requiring a statutory change, it concurred with OSM's alternative 
approach (Administrative Record Number WV-1452).
    As discussed above under Finding 1, EPA has launched a Good 
Samaritan Initiative, but it does not have these requirements under 
either the CWA or its implementing regulations. Although EPA supports 
the proposed State requirements, it needed assurance that the State 
provisions would not limit its authority. Therefore, as acknowledged in 
Finding 1, OSM approved the State's Environmental Good Samaritan Act at 
W.Va. Code 22-27-1 et seq. with the understanding that none of the 
provisions therein can be interpreted now or in the future as 
abrogating the authority or jurisdiction of the EPA under the CWA.

V. OSM's Decision

    Based on the above findings, we are approving, except as noted 
below, the program amendment that West Virginia sent us on June 13, 
2005, and that was modified on August 23, 2005. In addition, the 
following required program amendments are satisfied and can be removed: 
30 CFR 948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), 
(lllll), (ooooo), (ppppp), and (rrrrr).
    W.Va. Code 22-27-1 et seq. (the State's Environmental Good 
Samaritan Act) is only approved to the extent that none of the 
provisions therein can be interpreted as abrogating the authority or 
jurisdiction of the EPA.
    CSR 38-2-3.29.a is approved with the understanding that the State 
will insert a period after ``IBR'' and delete the words, ``or where it 
has been demonstrated to the satisfaction of the Secretary that limited 
coal removal on areas immediately adjacent to the existing permit.''
    CSR 38-2-5.4.b.10 is approved with the understanding that it 
provides for a 1.3 minimum static safety factor for all other 
impoundments that do not meet the size or other criteria of 30 CFR 
77.216(a) or are not impoundments that meet the Class B or C criteria 
for dams in TR-60, and are not coal mine waste impounding structures.
    CSR 38-2-5.4.b.12 is approved with the understanding that the 
reference to CSR 38-2-5.4.b.10 in the proposed provision means that 
foundation investigations and any necessary laboratory testing of 
foundation materials must be performed for impoundments that meet the 
Class B or C criteria for dams at TR-60, the size or other criteria of 
MSHA at 30 CFR 77.216(a), or the West Virginia Dam Control Act.
    CSR 38-2-5.4.c remains approved with the understanding that 
stability analyses will be conducted for all structures that meet the 
Class B or C criteria for dams in TR-60 as required by 30 CFR 
780.25(f).
    CSR 38-2-5.4.d.4 is approved with the understanding that design 
plans for impoundments that meet the Class B or C criteria for dams in 
TR-60 and meet or exceed the size or other criteria of MSHA at 30 CFR 
77.216(a) will be prepared by, or under the direction of, and certified 
by a registered professional engineer as provided by 30 CFR 
780.25(a)(2). Also, CSR 38-2-5.4.d.3 is approved with the understanding 
that the design plans for all other structures not included in 
Subsections 3.6.h.5 or 5.4.d.4 will be prepared by, or under the 
direction of, and certified by a registered professional engineer or 
licensed land surveyor as provided by 30 CFR 780.25(a)(3). Subsection 
38-2-5.4 is approved with the understanding that the design plan 
requirements at Subsection 3.6.h apply to those impoundments that meet 
the Class B or

[[Page 10789]]

C criteria for dams in TR-60 or meet or exceed the size or other 
criteria of MSHA at 30 CFR 77.216(a) as provided by 30 CFR 
780.25(a)(2). Subsection 5.4 to the extent that the design plan 
requirements at Subsection 3.6.h apply to all other impoundments not 
identified above as provided by 30 CFR 780.25(a)(3).
    At CSR 38-2-5.4.e.1, the words ``Impoundments meeting'' are not 
approved.
    CSR 38-2-7.4.b.1.D.11 is approved with the understanding that 
sufficient forestry mine soil shall be placed on valley fill faces to 
sustain vegetation and support the approved postmining land use.
    At CSR 38-2-7.4.b.1.J.1(c), the deletion of the following words is 
not approved: ``surface material shall be composed of soil and the 
materials described in subparagraph 7.4.b.1.D.''
    CSR 38-2-9.3.d and 9.3.e are approved with the understanding that 
the statistically valid sampling technique to be used must receive the 
approval of the regulatory authority, and it will be a part of the 
approved permit application.
    At CSR 38-2-14.14.g.2.A.6, the language which provides ``Unless 
otherwise approved in the reclamation plan,'' is approved and the 
disapproval codified at 30 CFR 948.12(g) has been fully resolved.
    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 rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the counterpart Federal regulations. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

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

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is that 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 a portion of the 
provisions in 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.) because they are 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. The Department of the Interior 
also certifies that the provisions in this rule that are not based upon 
counterpart Federal regulations will not have a significant economic 
impact on a substantial

[[Page 10790]]

number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.). This determination is based on the fact that the 
provisions are administrative and procedural in nature and are not 
expected to have a substantive effect on the regulated industry.

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 fact that a portion 
of the State provisions are based upon counterpart Federal regulations 
for which an analysis was prepared and a determination made that the 
Federal regulation was not considered a major rule. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are administrative and procedural in nature and are not 
expected to have a substantive effect on the regulated industry.

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 fact that a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 12, 2006.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.

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 removing and reserving paragraph (g) 
and adding new paragraph (i) to read as follows.


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

* * * * *
    (i) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on June 13, 2005, and 
modified on August 23, 2005:
    (1) At CSR 38-2-5.4.e.1, the words ``Impoundments meeting.''
    (2) At CSR 38-2-7.4.b.1.J.1(c), the deletion of the words ``surface 
material shall be composed of soil and the materials described in 
subparagraph 7.4.b.1.D.''

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


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                        Date of
  Original amendment submission     publication of         Citation/
              date                    final rule          description
------------------------------------------------------------------------
 
                              * * * * * * *
June 13, 2005, and modified on    March 2, 2006.....  W.Va. Code 22-3-
 August 23, 2005.                                      11(h)(2)(B); 11a;
                                                       32a; 22-27-1
                                                       through 12. CSR
                                                       38-2-2.92;
                                                       3.29.a; 5.4.a,
                                                       b.9, b.10, b.12,
                                                       c.7, d.3, d.4,
                                                       e.1, f;
                                                       7.4.b.1.A.1, A.3,
                                                       A.3(b), A.4, B.1,
                                                       C.1, C.2, C.3,
                                                       C.4, C.5, D.6,
                                                       D.8, D.9, D.11,
                                                       H.1, H.2, H.6,
                                                       I.1, I.2, I.3,
                                                       I.4, J.1; 7.5.a,
                                                       b.3, i.10, j.3.A,
                                                       j.3.B, j.3.E,
                                                       l.4.A, o.2;
                                                       9.3.d, 9.3.e;
                                                       14.5.h,
                                                       14.14.g.2.A.6;
                                                       14.15.c.3;
                                                       20.6.d, 20.6.j.
                                                       CSR 199-1-2.36a,
                                                       2.36b, 2.37;
                                                       3.3.b, 3.7; 4.8,
                                                       4.8.c, 4.8.f,
                                                       4.8.g, 4.9; Water
                                                       Rights and
                                                       Replacement
                                                       Policy (August
                                                       1995); September
                                                       2003 MOA between
                                                       WVDEP, DMR and
                                                       WVDNR, Wild
                                                       Resources
                                                       Section;
                                                       Permittee's
                                                       Request for
                                                       Release form,
                                                       Item 11, dated
                                                       March 2005.
------------------------------------------------------------------------

Sec.  948.16  [Amended]

0
4. Section 948.16 is amended by removing and reserving paragraphs (a), 
(sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll), (ooooo), 
(ppppp), and (rrrrr).

[FR Doc. 06-1901 Filed 3-1-06; 8:45 am]
BILLING CODE 4310-05-P