[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 78970-78981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30720]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-112-FOR; OSM-2008-0024]


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 two proposed amendments to the West Virginia 
regulatory program related to the State's cumulative hydrologic impact 
assessment (CHIA) process and regarding material damage to the 
hydrologic balance. The West Virginia Department of Environmental 
Protection (WVDEP) proposed to delete its existing definition of 
``cumulative impact.'' The WVDEP also proposed to amend its regulation 
outlining CHIA requirements by adding a sentence defining ``material 
damage to the hydrologic balance outside the permit area.'' We are 
approving both proposed amendments.

DATES: Effective Date: December 24, 2008.

FOR FURTHER INFORMATION CONTACT: Roger Calhoun, Director, Charleston 
Field Office, Office of Surface Mining, 1027 Virginia Street East, 
Charleston, West Virginia 25301.Telephone: 304-347-7158, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

    Section 503(a) of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA or the Act), 30 U.S.C. 1253(a), 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 regulatory program on January 
21, 1981. You can find background information on the West Virginia 
program, including the Secretary's findings, the disposition of 
comments, and conditions of approval in the January 21, 1981, Federal 
Register (46 FR 5915).
    You can also find later actions concerning West Virginia's program 
and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 
948.16.

II. Submission of the Amendments

A. Previous Submittal of the Amendments

    In 2001, West Virginia House Bill 2663 was enacted as State law 
which, among other things, deleted the definition of cumulative impact 
at West Virginia Code of State Regulations (CSR) 38-2-2.39 and added a 
sentence defining material damage to the hydrologic balance outside the 
permit area to CSR 38-2-3.22.e. The latter provision contains CHIA 
requirements that WVDEP must follow when processing permit applications 
for surface coal mining operations. By letter dated May 2, 2001, West 
Virginia submitted the proposed revisions as amendments to its 
permanent regulatory program (Administrative Record Number WV-1209). 
OSM approved both changes, along with several other proposed program 
amendments, on December 1, 2003 (68 FR 67035) (Administrative Record 
Number WV-1379).
    On January 30, 2004, the Ohio River Valley Environmental Coalition, 
Inc., Hominy Creek Preservation Association, Inc., and the Citizens 
Coal Council filed a complaint and petition for judicial review of 
these two decisions with the United States District Court for the 
Southern District of West Virginia (Administrative Record Number WV-
1382). On September 30, 2005, the United States District Court for the 
Southern District of West Virginia vacated both of OSM's decisions of 
December 1, 2003, at issue in the case and remanded the matter to the 
Secretary for further proceedings consistent with the court's decision. 
Ohio River Valley Environmental Coalition v. Norton, 2005 U.S. Dist. 
LEXIS 22265 (S.D. W.Va. 2005). (Administrative Record Number WV-1439).
    In response to the court's decision of September 30, 2005, OSM 
notified the State on November 1, 2005, that its definition of material 
damage was not approved and could not be implemented. OSM also stated 
that the deletion of the definition of cumulative impact was not 
approved and directed the State to take action to add it back into the 
program. On November 22, 2005, the United States District Court for the 
Southern District of West Virginia amended its earlier decision. Ohio 
River Valley Environmental Coalition v. Norton, No. 3:04-0084 (S.D. 
W.Va. Nov. 22, 2005) (amended judgment order). In the amended decision, 
the court directed the Secretary to instruct the State that it may not 
implement the new language nor delete language from the State's 
program, and that the State must enforce only the State program 
approved by OSM prior to the amendments.
    By letter dated January 5, 2006, OSM notified the State that the 
court's amended judgment order makes it clear

[[Page 78971]]

that the definition of ``cumulative impact'' at CSR 38-2-2.39 remains 
part of the approved West Virginia program and must be implemented by 
the State, and that the definition of ``material damage'' is not 
approved and cannot be implemented (Administrative Record Number WV-
1456).
    On December 12, 2006, the U.S. Court of Appeals for the Fourth 
Circuit affirmed the District Court's ruling of September 30, 2005, to 
vacate and remand OSM's approval of West Virginia's amendments. Ohio 
River Valley Environmental Coalition v. Kempthorne, 473 F.3d 94 (4th 
Cir. 2006). (Administrative Record Number WV-1479). The court ruled 
that OSM's decisions on proposed State program amendments are subject 
to the rulemaking procedures set forth in Section 553 of the 
Administrative Procedures Act, 5 U.S.C. 553. The court also stated that 
OSM's failure to properly analyze and explain its decision to approve 
the State's program amendment rendered that action arbitrary and 
capricious.
    In its decision, the U.S. Court of Appeals for the Fourth Circuit 
noted that OSM ``based the decision to approve the deletion of the 
`cumulative impact' definition exclusively on the absence of a 
corresponding definition in the Federal regulations, ignoring any 
actual effect the change might have on West Virginia's program.'' The 
court went on to state that ``OSM acknowledged that the change may have 
weakened the program'' but then failed to explain how such a change 
``is nevertheless consistent with SMCRA's minimum requirements.'' The 
court then concluded that ``SMCRA requires OSM to find not only that 
the amended program contains counterparts to all Federal regulations, 
but also that it is no less stringent than SMCRA and no less effective 
than the Federal regulations in meeting SMCRA's requirements.'' 473 
F.3d at 103.
    In addressing OSM's approval of the proposed addition of a sentence 
to the State's CHIA requirements that defined ``material damage to the 
hydrologic balance outside the permit area'', the court stated that 
``the added definition made West Virginia's proposed program different 
than the nationwide program. OSM's obligation is to analyze that 
different feature and explain whether and why the added provision 
renders the amended State program more, less, or equally effective 
compared to federal requirements. At a minimum, it must address the 
potential affect of the amendment on the State program and provide a 
reasoned analysis of its decision to approve it.'' Id.
    It is with the guidance provided by the court in mind that OSM has 
conducted this review of these two proposed amendments.

B. Current Submittal of the Amendments

    By letter dated March 22, 2007 (Administrative Record Number WV-
1485), West Virginia re-submitted amendments to its program under 
SMCRA. The amendments propose to delete the definition of ``cumulative 
impact,'' and to add a sentence defining ``material damage to the 
hydrologic balance outside the permit area.''
    In its March 22, 2007, re-submittal letter, West Virginia provided 
a description of each of the proposed amendments, an explanation of why 
it considers its new material damage definition no less stringent than 
SMCRA, an explanation on the application of the material damage 
definition, a comparison of the material damage and cumulative impact 
definitions, and a discussion of the plaintiff's arguments in OVEC v. 
Kempthorne, supra. The letter concluded with a constitutional argument 
in support of approval. Enclosures to the letter included a copy of the 
State's Requirements Governing Water Quality Standards at 47 CSR 2 and 
a copy of the decision in Ohio River Valley Environmental Coalition, 
Inc. (OVEC), et al., v. Callaghan, et al., Civil Action No. 3:00-0058, 
(S.D. W.Va. 2001). However, the letter made it clear that the 
enclosures were being supplied for informational purposes only and that 
West Virginia was not seeking OSM approval of the water quality 
standards document, which had been approved by the U.S. Environmental 
Protection Agency (EPA).
    West Virginia proposed the following revisions to its approved 
regulatory program:
1. CSR 38-2-2.39 Definition of ``cumulative impact''
    The following definition is proposed for deletion from the West 
Virginia program: Cumulative impact means the hydrologic impact that 
results from the accumulation of flows from all coal mining sites to 
common channels or aquifers in a cumulative impact area. Individual 
mines within a given cumulative impact area may be in full compliance 
with effluent standards and all other regulatory requirements, but as a 
result of the co-mingling of their off-site flows, there is a 
cumulative impact. The Act does not prohibit cumulative impacts but 
does emphasize that they be minimized. When the magnitude of cumulative 
impact exceeds threshold limits or ranges as predetermined by the 
Division [WVDEP], they constitute material damage.
2. CSR 38-2-3.22.e Cumulative Hydrologic Impact Assessment
    This existing provision, which contains the mandate for the WVDEP 
to prepare a CHIA for each permit application, is proposed to be 
revised by adding a new sentence that defines material damage to the 
hydrologic balance outside the permit area. The proposed sentence reads 
as follows:
    Material damage to the hydrologic balance outside the permit 
area[s] means any long term or permanent change in the hydrologic 
balance caused by surface mining operation(s) which has a significant 
adverse impact on the capability of the affected water resource(s) to 
support existing conditions and uses.
    As amended, CSR 38-2-3.22.e would read as follows:
    The Director [Secretary] shall perform a separate CHIA for the 
cumulative impact area of each permit application. This evaluation 
shall be sufficient to determine whether the proposed operation has 
been designed to prevent material damage to the hydrologic balance 
outside the permit area. Material damage to the hydrologic balance 
outside the permit area[s] means any long term or permanent change in 
the hydrologic balance caused by surface mining operation(s) which has 
a significant adverse impact on the capability of the affected water 
resource(s) to support existing conditions and uses.
    We announced receipt of West Virginia's proposed amendments in the 
May 17, 2007, Federal Register (72 FR 27782). In that notice, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendments. The May 17, 2007, proposed rule 
provides a background on previous submissions of this amendment as well 
as the current submission. The public comment period ended on June 18, 
2007. We did not hold a public hearing or a public meeting because no 
one requested one.
    We received written comments from Geo-Hydro, Inc., (Administrative 
Record Number WV-1496); a private citizen (Administrative Record Number 
WV-1498); a combined set of comments on behalf of the Hominy Creek 
Preservation Association, Inc., Ohio River Valley Environmental 
Coalition, Inc., and West Virginia Highlands Conservancy, Inc. 
(Administrative Record Number WV-1495). We also received comments from 
two Federal agencies: The United States Department of the Interior Fish 
and

[[Page 78972]]

Wildlife Service, West Virginia Field Office (Administrative Record 
Number WV-1491) and the United States Environmental Protection Agency, 
Region III (Administrative Record Number WV-1497).

III. OSM's Findings

    As noted by the Fourth Circuit, ``[r]eview of a State program 
amendment utilizes the same criteria applicable to approval or 
disapproval of a State program in the first instance. 30 CFR 
732.17(h)(10).'' 473 F.3d at 98. Consequently, the Secretary must find 
the altered State program to be no less stringent than SMCRA and no 
less effective than the Federal regulations in meeting SMCRA's 
requirements in order to approve it. Further, the court made clear that 
in applying those standards, OSM must do more than simply compare 
whether State regulations still contain counterparts to relevant 
Federal requirements, (or, in the case of an addition, that there is no 
Federal counterpart and no other Federal requirements that would 
conflict with the proposed addition), but it also must examine how each 
proposed change would affect program implementation in order to 
determine that the program will remain no less effective than Federal 
regulations in meeting the requirements of SMCRA.

A. General Discussion--Prevention of Material Damage to the Hydrologic 
Balance Outside the Permit Area

    Because each of the proposed amendments before us relate to the 
term ``prevent material damage to the hydrologic balance outside the 
permit area'', it is important to understand the context for that term 
in SMCRA and the Secretary's regulations in order to determine whether 
either or both of the amendments West Virginia has proposed will render 
its program less effective than Federal regulations. This is 
particularly important in this case because of interpretations and 
positions presented by the plaintiffs in the prior litigation discussed 
above as well as comments on this rulemaking discussed below.
    The term ``material damage to the hydrologic balance outside the 
permit area'' occurs only once in SMCRA at Section 510(b)(3), which 
states ``the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance specified in 
Section 507(b) has been made by the regulatory authority and the 
proposed operation thereof has been designed to prevent material damage 
to the hydrologic balance outside the permit area.''
    The same phrase occurs in four separate contexts in the Secretary's 
regulations for surface and underground mining operations. The first, 
as in SMCRA, is in the context of a written finding that the regulatory 
authority perform an assessment and determine that ``the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area'' as required by 30 CFR 
773.15(e). In addition, a finding is required by the regulatory 
authority as contained in 30 CFR 780.21(g) and 784.14(f), which states 
in relevant part ``The CHIA shall be sufficient to determine, for the 
purposes of permit approval, whether the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area.''
    The second context, with slight modification, is as a permit 
application requirement for the applicant to provide a Hydrologic 
Reclamation Plan as mandated by 30 CFR 780.21(h) and 784.14(g), which 
states in relevant part that the plan ``shall contain the steps to be 
taken during mining and reclamation through bond release to minimize 
disturbances to the hydrologic balance within the permit and adjacent 
areas; to prevent material damage outside the permit area.'' Third, the 
phrase is used in the context of a performance standard in 30 CFR 
816.41(a) and 817.41(a), which requires that mining and reclamation 
activities be conducted ``to prevent material damage to the hydrologic 
balance outside the permit area.'' The fourth context relates to 
monitoring requirements and is contained in that same paragraph. It 
authorizes the regulatory authority to ``require additional preventive, 
remedial, or monitoring measures to assure that material damage to the 
hydrologic balance outside the permit area is prevented.'' The Federal 
regulations at 30 CFR 816.41(c) and (e) /817.41(c) and (e) authorize 
the regulatory authority to modify the monitoring requirements, 
including parameters and frequency, if the monitoring data demonstrates 
that the operation has ``prevented material damage to the hydrologic 
balance outside the permit area.''
    These requirements, when taken together, clearly show that (1) the 
regulatory authority must make a written finding that the operation is 
designed to prevent material damage to the hydrologic balance outside 
the permit area before the permit can be issued; (2) a permit 
application must include a plan that shows the operation has been 
designed to prevent such damage; (3) the operation must be conducted to 
prevent such damage; and (4) the water monitoring requirements are used 
to determine whether or not such damage is occurring.
    The Federal regulatory framework outlined above demonstrates that 
the parameters for material damage must be reflected in the hydrologic 
monitoring requirements. This relationship between water monitoring and 
material damage detection is confirmed by the fact that, for 
groundwater, monitoring of an aquifer may be waived upon a 
demonstration that it does not significantly ensure the hydrologic 
balance within the cumulative impact area in accordance with 30 CFR 
780.21(i)(2) and 784.14(h)(2). The ground and surface-water monitoring 
requirements at 30 CFR 780.21(i) and (j) and 784.14(h) and (i) state 
that the plan shall provide for monitoring of parameters that relate to 
the suitability of the water resource ``for current and approved 
postmining land uses'' and the objectives of the hydrologic reclamation 
plan. Minimum parameters that must be monitored are also specified 
separately for ground and surface water. Thus, the Federal regulations 
provide minimum parameters for measuring material damage.
    Material damage thresholds or standards for those parameters are 
not specified. However, 30 CFR 816.42 and 817.42 mandate that 
discharges from mining operations be in compliance with applicable 
State and Federal water quality laws and the effluent limitations 
promulgated by EPA at 40 CFR part 434, which apply to some of the 
parameters for which monitoring is mandated in 30 CFR 780.21 and 
784.14. In accordance with 30 CFR 773.15(e), a permit cannot be issued 
without a written finding that the proposed operation has been designed 
to prevent material damage to the hydrologic balance outside the permit 
area. In addition, 30 CFR 780.21(h) and 784.14(g) require that the 
application contain steps to be taken during mining and reclamation and 
through bond release to meet applicable State and Federal water quality 
laws and regulations. Thus, EPA's effluent limitations at 40 CFR Part 
434 may constitute reasonable material damage criteria for some of the 
parameters specified in monitoring requirements. This relationship is 
discussed in the September 26, 1983 preamble requirement for the 
regulatory authority to make a material damage finding as follows: 
``OSM has not established fixed criteria, except for those established 
at 30 CFR 816.42 and 817.42 related to compliance with water-quality 
standards and effluent limitations.''

[[Page 78973]]

    With this background in mind, we have evaluated each of the 
proposed amendments to the West Virginia program in relation to Federal 
requirements for preventing damage to the hydrologic balance outside 
the permit area.

B. Specific WVDEP Amendment Language and Interpretation

1. West Virginia's Cumulative Impact Definition
    The West Virginia program was conditionally approved in January 
1981 based upon Federal regulations in existence at that time. None of 
the conditions on that approval related to the CHIA process or 
requirements to prevent material damage to the hydrologic balance 
outside the permit area. However, when OSM revised its hydrologic 
balance regulations on September 26, 1983, (48 FR 43956), among other 
things, a definition of ``cumulative impact area'' was added. On August 
19, 1986, OSM notified West Virginia through a 30 CFR Part 732 letter, 
as clarified on December 18, 1987 (Administrative Record Numbers WV-711 
and WV-748) that, among other changes unrelated to this rulemaking, 
West Virginia must amend its program to add a definition of 
``cumulative impact area'' to bring its program into compliance with 
the revised 1983 Federal rules. In responding to those requirements, 
West Virginia submitted proposed emergency and legislative rules in 
August 1988 that contained a definition of ``cumulative impact'', as 
well as the mandated definition of ``cumulative impact area'' 
(Administrative Record Numbers WV-760 and WV-766).
    On May 23, 1990, OSM published a Federal Register notice announcing 
the approval of several State program amendments, which included West 
Virginia's definitions of cumulative impact and cumulative impact area 
at Finding 2.10 (55 FR 21309). OSM found that although the Federal 
regulations do not specifically define cumulative impact, the Federal 
requirements at 30 CFR 780.21(g) and 784.14(f) contain provisions 
regarding the cumulative impact of mining on the hydrologic balance 
which form the basis for the State's definition. Furthermore, the 
State's definition of cumulative impact area is identical to the 
corresponding Federal definition at 30 CFR 701.5. Therefore, we found 
that CSR 38-2-2.38 and 38-2-2.39 of the proposed State regulations were 
not inconsistent with the Federal regulations at 30 CFR 701.5, 
780.21(g) and 784.14(f).
2. Effect of Deleting the Definition of Cumulative Impact
    The definition of the term cumulative impact that is proposed for 
deletion from the WVDEP program is:
    Cumulative impact means the hydrologic impact that results from the 
accumulation of flows from all coal mining sites to common channels or 
aquifers in a cumulative impact area. Individual mines within a given 
cumulative impact area may be in full compliance with effluent 
standards and all other regulatory requirements, but as a result of the 
co-mingling of their off-site flows, there is a cumulative impact. The 
Act does not prohibit cumulative impacts but does emphasize that they 
be minimized. When the magnitude of cumulative impact exceeds threshold 
limits or ranges as predetermined by the Division [WVDEP], they 
constitute material damage.
    As previously noted, neither SMCRA nor the Federal regulations have 
a corresponding definition of ``cumulative impact'' and West Virginia 
added this definition in 1988 on its own volition. Therefore, on its 
face, removal of this definition would leave the State program 
consistent with Federal regulations. However, in accordance with the 
decision of the Circuit Court, OSM must also evaluate the effect the 
proposed removal of the cumulative impact definition will have on State 
program implementation in order to assure that any such effect will not 
render that program less effective than the Federal regulations at 
meeting the purposes of SMCRA.
    Much of the controversy surrounding the proposed removal of West 
Virginia's cumulative impact definition has focused on the last 
sentence, which essentially defines material damage in terms quite 
different than the proposed definition of material damage to hydrologic 
balance outside the permit area that is discussed later in this notice. 
The discussion here only focuses upon the effect of removing the 
definition of cumulative impact with its definition of material damage 
contained in the last sentence.
    First, the definition proposed for removal from the West Virginia 
program defines material damage in the context of cumulative impacts. 
This is in contrast to SMCRA and the Secretary's regulations, which 
state that the proposed operation must be designed to prevent material 
damage. WVDEP makes this point, on page four of its letter accompanying 
the submittal, by stating that the focus of the material damage finding 
required by 30 CFR 780.21(g) and section 510(b)(3) of SMCRA is more 
limited than the scope of the full CHIA analysis of which it is a part. 
The CHIA is to assess the impacts of all anticipated mining in the 
cumulative impact area, while the material damage finding only deals 
with whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. This 
distinction is also noted in the preamble to OSM's Permanent Regulatory 
Program published on March 13, 1979 (44 FR 14902-15309) at page 15101 
which, in explaining the CHIA requirement then at 30 CFR 786.19(c), 
states ``Section 510(b)(3) of the Act requires that the regulatory 
authority assess the probable cumulative impact on the hydrologic 
balance of all mining anticipated in an area. In addition, it must also 
find, prior to approval, that a proposed operation will minimize damage 
to the hydrologic balance outside the permit area.''
    When OSM modified its CHIA requirements, it made clear that the 
CHIA must be sufficient to make the required finding that material 
damage will be prevented outside the permit area. The preamble to those 
changes, published on September 26, 1983, (48 FR at 43972-3) discussing 
30 CFR 780.21(g), states that the CHIA need not result in judgments 
balancing current coal development and possible future development. It 
also states that ``the final rule allows a `first come first served' 
analysis with each subsequent operation being based upon its potential 
for material damage with respect to any preceding operations.'' OSM 
further noted in that same preamble that ``If any material damage would 
result to the hydrologic balance from the cumulative impacts of a newly 
proposed operation and any previously permitted operation, the new 
operation could not be permitted * * *'' Id. At 43857.
    Each permit must establish a cumulative impact area as set forth at 
30 CFR 780.21(c) and 784.14(c). The West Virginia definition of 
cumulative impact area at CSR 38-2-2.39, and the Federal definition at 
30 CFR 701.5 are virtually the same and mean: the area, including the 
permit area, within which impacts resulting from the proposed operation 
may interact with the impacts of all anticipated mining on surface and 
groundwater systems. Anticipated mining shall include the entire 
projected lives through bond releases of (a) the proposed operation, 
(b) all existing operations, (c) any operation for which a permit 
application has been submitted to the Secretary/Regulatory Authority, 
and (d) all operations required to meet diligent development 
requirements for leased Federal coal for

[[Page 78974]]

which there is actual mine development information available. 
Therefore, while the West Virginia definition proposed for removal 
requires prevention of material damage from cumulative impacts rather 
than from the proposed operation as required by SMCRA and the Federal 
regulations, this is a distinction without a practical difference. In 
any case, whether the definition is removed or not, the West Virginia 
program still requires that the proposed operation be designed to 
prevent material damage to hydrologic balance outside the permit area 
as required by SMCRA and Federal regulations. The State's obligation 
and responsibility to properly prepare a CHIA and to make the finding 
regarding material damage on a case by case basis as required by SMCRA 
remains an integral component of the West Virginia program even without 
this definition.
    Second, the final sentence of the definition proposed for removal 
states that ``When the magnitude of cumulative impact exceeds threshold 
limits or ranges as predetermined by the Division, they constitute 
material damage.'' It is debatable whether this sentence mandates (as 
some argue) that the Division predetermine threshold limits or ranges 
for all material damage parameters or only mandates that, where the 
Division has, in fact, predetermined threshold limits or ranges, 
exceeding them constitutes material damage. OSM stated in the preamble 
to the 1983 hydrology regulations at page 43973 that ``OSM agrees that 
the regulatory authorities should establish criteria to measure 
material damage for the purposes of the CHIAs.'' However, the CHIA 
regulation does not mandate that States do so. This is in sharp 
contrast to 30 CFR 816.116 (a)(1) for revegetation success standards, 
also finalized in September 1983, where OSM mandated that regulatory 
authorities must select standards for success and sampling techniques 
for evaluating vegetation success and include them in the approved 
regulatory program (OSM removed the requirement for OSM's prior 
approval of these success standards and sampling techniques on August 
30, 2006, (71 FR 51684, 51688-51695, 51705-51706)). Instead, the 
hydrology regulations provide general guidance to regulatory 
authorities in the water monitoring requirements at 30 CFR 780.21 and 
784.14, as discussed above. Further, in the 25 years since the 
hydrology rules were revised, OSM has not put States on notice, under 
30 CFR Part 732, of an obligation to establish material damage criteria 
or that 30 CFR 816.42 or 817.42 must be used for such criteria. The 
only mandate imposed on States as a result of the 1983 hydrology 
revised rules was the 1986 mandate under 30 CFR Part 732 that they each 
must establish a definition of ``cumulative impact area'' consistent 
with the new Federal definition added in 1983.
    In 1997, some 14 years after revising the CHIA and material damage 
requirements discussed above, OSM issued a National policy statement on 
acid mine drainage (AMD) in which it stated ``Regulatory authorities 
should establish criteria to measure and assess material damage. 
Material damage guidelines, to be applied on a case-by-case basis, are 
necessary to effectively assess the adequacy of mining and reclamation 
plans in addressing AMD prevention.'' The policy goes on to state that 
``surface and groundwater monitoring data should be evaluated against 
established material damage criteria.'' In response to comments on the 
policy, OSM stated that:
    Section 510(b)(3) of SMCRA requires regulatory authorities to 
determine whether proposed operations have been designed to prevent 
material damage to the hydrologic balance outside the permit area. This 
provision inherently requires the use of guidelines or criteria, since 
even case-by-case determinations require the application of some type 
of damage threshold and impact measures.'' And ``* * * the policy is 
consistent with the Act, its implementing regulations, and their 
preambles in that it encourages States to develop material damage 
guidelines but does not establish national criteria or guidelines. 
Instead of establishing rigid guidelines to implement this policy, the 
regulatory authority could develop a flexible list of factors to 
consider in establishing thresholds and assessing material damage on a 
case-by-case basis.''
    The water monitoring requirements at 30 CFR 780.21 and 784.14 
separately mandate minimum parameters for surface and groundwater that 
relate to both water quality and quantity. Some of those relate to AMD. 
It is apparent from the above discussion that, while regulatory 
authorities are expected to provide material damage guidelines, they 
have considerable flexibility in doing so. Even with the deletion of 
the current definition of ``cumulative impact,'' West Virginia is still 
obligated to establish criteria for determining what constitutes 
material damage to the hydrologic balance outside the permit area 
consistent with the Federal requirements, as discussed above.
    Based upon the foregoing discussion, we find that approving the 
State's proposed amendment to delete its definition of ``cumulative 
impact'' at CSR 38-2-2.39 would have no adverse effect on the WVDEP's 
ability or obligation under its approved program to assess and 
determine whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area.
    In addition, we find, as discussed below, that this deletion is 
further ameliorated by the addition of a new definition of ``material 
damage to the hydrologic balance.''
    Furthermore, we find that the deletion of the definition does not 
make the State program less effective than the hydrologic protection 
requirements set forth in the Federal regulations nor less stringent 
than those in SMCRA, and its removal can be approved.
3. Effect of Adding a Definition of Material Damage
    West Virginia is proposing to add a sentence to its CHIA 
requirements at CSR 38-2-3.22.e that would define material damage to 
the hydrologic balance outside the permit area. It reads as follows:
    Material damage to the hydrologic balance outside the permit areas 
means any long term or permanent change in the hydrologic balance 
caused by surface mining operation(s) which has a significant adverse 
impact on the capability of the affected water resource(s) to support 
existing conditions and uses.
    The question before us is whether West Virginia's proposed addition 
of a sentence defining material damage to the hydrologic balance 
outside the permit area to its CHIA requirements would leave the State 
program no less stringent than SMCRA and no less effective than Federal 
regulations in achieving the purposes of SMCRA. Since neither SMCRA nor 
the Federal regulations define material damage or require that States 
define the term as part of their approved programs, at issue before us 
is whether the definition proposed by West Virginia limits the reach of 
material damage in a way that reduces the effectiveness of its program 
so that it would be less effective than Federal rules in achieving the 
purposes of SMCRA.
    In light of that framework, there are three aspects of the proposed 
definition that must be considered in evaluating whether it can be 
approved. These are: (1) Long term or permanent change, (2) significant 
adverse impact, and (3) capability of the affected water resources to 
support existing conditions and uses (emphasis added).

[[Page 78975]]

    These three facets of the proposed definition can be viewed as 
giving meaning to ``material'' as it modifies damage. As part of its 
explanation for its proposed definition, West Virginia focuses on 
``material,'' both in its plain meaning and its use in other SMCRA 
contexts for the phrase ``material damage,'' e.g. subsidence damage and 
protection of alluvial valley floors. Just as West Virginia is 
proposing here, the word ``significant'' in the Federal regulatory 
definitions appears to be relevant in applying material damage in both 
of those cases. Further, the word ``significant'' is used in 30 CFR 
780.21 and 784.14 related to groundwater monitoring in determining 
whether a particular aquifer needs to be monitored. Since material 
damage certainly implies something more than minor damage and it is a 
word that OSM has used in Federal regulations for material damage in 
other contexts, the use of ``significant'' by West Virginia in this 
definition is not on its face unreasonable.
    In discussing how the phrase ``support existing conditions and 
uses'' would be applied, West Virginia states that it effectively 
requires the State to consider the water quality standards it has 
promulgated under its Clean Water Act that have been approved by EPA. 
``By definition, `water quality standards' means the `combination of 
water uses to be protected and the water quality to be maintained' by 
the rules setting forth those standards.'' West Virginia also notes 
that ``water quality criteria'' is also a defined term that references 
designated uses, as well as existing uses as specifically provided by 
the proposed definition. Designated use specifies how the water can be 
used, such as warm water fishery or primary contact recreation. States 
are required by the Clean Water Act to assign one or more uses to each 
of its waters. These uses must be taken into consideration by the State 
when approving a proposed mining operation. West Virginia then states 
that, under the proposed definition, in order to assure that mining 
will not result in a long term or permanent change in the hydrologic 
balance which has a significant adverse impact on the capability of a 
receiving stream to support its uses, a proposed mining operation must 
be designed so as to consistently comply with the water quality 
standards for the designated uses for the receiving stream. West 
Virginia further notes it does not intend to consider every pollutant 
for which a water quality standard has been promulgated. Instead, 
consideration will be limited to standards for those parameters which, 
based upon its experience with other mining operations in the area and 
the geochemical data required in the application, have the potential to 
have an impact on water quality if the application is granted.
    The Federal water monitoring requirements at 30 CFR 780.21 and 
784.14, which, as discussed above are linked to detecting material 
damage, state that current and approved postmining land use should be 
considered in establishing parameters to be monitored for both surface 
and groundwater. West Virginia's proposed link of material damage to 
existing water uses is not inconsistent with that concept, particularly 
with its explanation of how it would be applied since water quality 
standards established under the Clean Water Act are linked to both 
existing and designated uses. We do note that those standards do not 
extend to surface water quantity or to ground water quality or 
quantity. Therefore, there are additional material damage criteria for 
which the State must consider how it will determine material damage. 
However, the proposed definition does not limit West Virginia's 
authority or obligation to do so. By including its Water Quality 
Standards with the amendment, we understand that West Virginia intends 
to apply the requirements set forth at CSR 46-1-1 et seq. when 
determining when material damage to the hydrologic balance has 
occurred.
    In regard to the issue of long-term or permanent change, West 
Virginia states that, while the operation must be designed to 
consistently comply with applicable standards, isolated or random 
exceedance of water quality standards will not be regarded as material 
damage. The idea that material damage to the hydrologic balance is 
linked to long-term trends rather than an isolated spike in relation to 
threshold levels or ranges is consistent with the requirement that 
monitoring data need only be submitted every three months and gives 
reasonable meaning to ``material'' damage. While OSM recognizes that 
there have been a few individual events of enormous magnitude and 
impact that would certainly qualify as material damage to the 
hydrologic balance outside the permit area, there are numerous 
performance standards that could be cited in enforcement actions in 
such cases to mandate corrective measures under approved State 
programs. Further, OSM does not view the proposed State definition as 
limiting West Virginia's ability to cite the State counterpart (CSR 38-
2-14.5) to 30 CFR 816.41(a) and 817.41(a) for causing material damage 
to the hydrologic balance outside the permit area in such cases. OSM 
believes that all of these issues related to the material damage 
finding should be addressed by the regulatory authority on a case-by-
case basis as mining permit applications are reviewed and approved, in 
concert with the CHIA. In reviewing West Virginia's proposed material 
damage definition, OSM finds that it does provide reasonable guidance 
on what would constitute material damage to the hydrologic balance 
outside the permit area without imposing limitations on the reach of 
that phrase that would make the West Virginia program less effective 
than the Federal regulations at achieving the purposes of SMCRA.
    West Virginia has stated that it intends to implement its proposed 
definition in a manner that provides objective criteria for determining 
whether a proposed operation is designed to prevent material damage to 
the hydrologic balance outside the permit area. Further, it has stated 
that it would do so in a manner that gives reasonable meaning to the 
phrase ``material'' while providing consistent application 
understandable to all parties. Therefore, OSM finds that the proposed 
new definition of material damage at CSR 38-2-3.22.e is no less 
stringent than SMCRA and no less effective than Federal regulations in 
achieving the purposes of the Act and it can be approved. This finding 
is based upon West Virginia implementing this new definition consistent 
with its explanation provided with the proposed amendment as summarized 
above and consistent with the intent of SMCRA as discussed in this 
notice. Should we later find that this definition is not being 
implemented in a manner consistent with the above discussion, OSM may 
revisit this finding.

IV. Summary and Disposition of Comments

    We received written comments from Geo-Hydro, Inc. (Administrative 
Record Number WV-1496); a private citizen (Administrative Record Number 
WV-1498); a combined set of comments on behalf of the Hominy Creek 
Preservation Association, Inc., Ohio River Valley Environmental 
Coalition, Inc., and West Virginia Highlands Conservancy, Inc. 
(Administrative Record Number WV-1495). We also received comments from 
two Federal agencies; the United States Department of the Interior Fish 
and Wildlife Service, West Virginia Field Office (Administrative Record 
Number WV-1491) and the United States Environmental Protection Agency,

[[Page 78976]]

Region III (Administrative Record Number WV-1497).

Public Comments

    Extensive comments were received from Walton D. Morris, Jr. on 
behalf of Hominy Creek Preservation Association, Inc., Ohio River 
Valley Environmental Coalition, Inc. (OVEC), and West Virginia 
Highlands Conservancy, Inc. OSM will refer to these comments 
collectively as those of OVEC.
    OVEC contends that OSM's publication of a proposed rule ``which 
merely invites public comment on West Virginia's resubmission documents 
falls short of the requirement which the Administrative Procedure Act 
(APA), 5 U.S.C. 553, imposes on the agency * * *''. In support of this 
comment, OVEC lists several alleged deficiencies in the proposed 
amendment, all of which, according to OVEC, were noted by ``courts''. 
In addition the WVDEP's new explanatory letter ``does not have the 
force of law and therefore does not cure the defects in the proposed 
amendments which led the reviewing courts to strike down OSM's approval 
decision'', according to OVEC. ``Specifically'', OVEC argues, ``there 
remains no definition in the proposed amendments of `long-term change' 
or `significant adverse impact.' There are no regulatory provisions or 
other provisions with the force of law that indicate `how the 
regulatory authority propose[s] to measure such an impact or determine 
when it would occur;' '' Finally, OVEC contends that, ``[i]f OSM 
proposes to re-approve these very same proposed program amendments, the 
agency has an obligation first to inform the public of the basis on 
which it proposes to do so'', and ``to perform and present the analysis 
which the reviewing courts found missing from the agency's earlier 
program approval decision and to request further public comment on that 
analysis.''
    First, we note that the Fourth Circuit, unlike the District Court, 
did not point to any alleged deficiencies in the amendments themselves, 
such as the failure to define certain terms. Rather, its decision was 
based on OSM's failure to determine, based upon a thorough analysis, 
whether the amendments rendered the State's program less stringent than 
SMCRA and less effective than the Federal regulations. 473 F.3d at 103. 
Thus, we disagree with OVEC that either OSM or the State is obligated 
to ``cure the defects in the text of the proposed amendments'' by way 
of explanation in the proposed rule.
    Second, we disagree with OVEC's assertion that we are obliged to 
``inform the public of the basis'' for our proposed re-approval of the 
amendments, because this assertion proceeds from the false premise that 
OSM's proposed rule proposes approval of the amendments. To the 
contrary, our proposed rule merely announces receipt of the amendments 
as required by 30 CFR 732.17, and asks for public and agency comment on 
the question of whether the amendments can be approved. At the proposed 
rule stage, we take no position as to whether an amendment should be 
approved; therefore, we are not required to provide an analysis in the 
proposed rule that advocates approval.
    This approach is fully consistent with the APA as described by the 
Fourth Circuit in this case wherein the court stated ``An agency 
engaged in rulemaking pursuant to APA 553 must `follow [] a three-step 
process--issuance of a notice of proposed rulemaking, followed by 
receipt and consideration of comments on the proposal, followed by 
promulgation of a final rule that incorporates a statement of basis and 
purpose.' '' 473 F.3d at 102 (quoting Kenneth Culp Davis & Richard J. 
Pierce, Jr., administrative Law Treatise 7.4 (3rd ed. 1994)). The Court 
goes on to note that the agency followed that process in concluding 
that the Secretary was engaged in rulemaking pursuant to APA Section 
553.
    Each of OVEC's comments on the proposed rule suffers from a 
fundamental misinterpretation of the requirements of Section 553 of the 
Administrative Procedure Act, 5 U.S.C. 553. With respect to proposed 
rules, the APA merely requires that the reviewing agency include 
``either the terms or substance of the proposed rule or a description 
of the subjects and issues involved.'' Cat Run Coal Co. v. Babbitt, 932 
F. Supp. 772, 777 (S.D. W.Va. 1996) (quoting 5 U.S.C. 553(b)(3)). ``The 
notice must be `sufficiently descriptive to provide interested parties 
with a fair opportunity to comment and to participate in the rule 
making'.'' 932 F. Supp. at 777 (quoting Chocolate Mfrs. Ass'n of U.S. 
v. Block, 755 F.2d 1098, 1104 (4th Cir. 1985) (citations omitted).
    In our May 17, 2007, proposed rule, we set forth the full text of 
the amendment, which includes the deletion of the ``cumulative impact'' 
definition, as well as the addition of a definition of ``material 
damage'', in CSR 38-2-3.22.e. Next, we presented, in considerable 
detail, the WVDEP's explanation of how the ``material damage'' 
definition will be interpreted and employed in the context of a 
permitting review. Finally, we included the WVDEP's rationale for 
removing the definition of ``cumulative impact''. 72 FR 27782, 27784-5 
(May 17, 2007).
    Together, the text and explanatory narrative accompanying it 
satisfy the APA's requirement that the proposed rule include ``the 
terms or substance of the proposed rule or a description of the 
subjects and issues involved.'' 5 U.S.C. 553(b)(3). Indeed, our 
proposed rule surpasses the APA's mandate, since it includes both a 
description of the proposed amendments' ``terms'' and ``substance'', as 
well as a ``description of the subjects and issues involved.'' As such, 
the proposed rule is sufficient to ensure that the public and other 
interested parties will have a fair opportunity to comment and to 
participate in the rulemaking process.
    In addition OVEC provides three primary reasons why OSM should 
disapprove the proposed program amendments. These reasons are 
summarized below along with OSM's responses.
    I. WVDEP's explanatory letter lacks the force of law, is 
inconsistent with both the text of pertinent West Virginia Statutes and 
Regulations and with WVDEP's prior explanations of the proposed 
amendments; and thus does not provide a rationale basis for evaluating 
or approving the amendments.
    OVEC comments that the explanation provided by WVDEP in support of 
the proposed amendments is inconsistent with previous explanations 
provided by the agency, is inconsistent with statutory and regulatory 
texts regarding water quality statutes, and is inconsistent with the 
testimony of the WVDEP in a deposition with regard to what constitutes 
material damage. In addition, OVEC states that OSM should require WVDEP 
to furnish an opinion of the Attorney General of West Virginia that the 
``* * * legal interpretations set forth in the explanatory letter are 
correct, both with respect to the proposed amendments and the water 
quality statutes and regulations which WVDEP invokes, and that the 
letter has the force of law.''
    Before addressing OVEC's specific comments under this heading, it 
is important to note that 30 CFR 732.17 does not require a State to 
submit an explanation or rationale as a part of submitting proposed 
program amendments. The extent to which OSM has relied upon material 
other than the language of proposed amendments themselves in relation 
to Federal requirements in reaching its decision is described above in 
the findings section. While we found the State's explanation useful, 
the extent to which we have relied on it in reaching our decision is 
limited to the extent we have referenced it in the findings section 
above. The

[[Page 78977]]

understanding upon which our approval is based is explained in the 
findings section and largely relies, as discussed, upon the reach of 
Federal requirements. Further, OSM has two decisions before it. While 
OVEC's comments treat these decisions as one without delineating which 
decision it is commenting on, there is generally more discussion of the 
material damage definition that is proposed for addition to the West 
Virginia program.
    OVEC's sole basis for claiming inconsistency between the WVDEP's 
July 1, 2003, clarification and its March 22, 2007, letter is that the 
former document stated that the amendments ``set forth some objective 
criteria'' for determining material damage, while the latter document 
argues that the material damage determination must be a ``qualitative, 
rather than a quantitative,'' judgment.
    However, OVEC fails to note that in its 2007 letter, the WVDEP also 
contends that the new material damage standard is more objective than 
its predecessor, since it clearly requires the determination to be 
based on the ability of the proposed mining operation to comply with 
water quality standards, whereas the old ``cumulative impact'' 
definition referred to undefined ``threshold limits and ranges.'' Thus, 
in both its 2003 and 2007 explanations of the amendments, the WVDEP 
contends that the new definition of material damage adds objectivity to 
the determination. The State did acknowledge in 2007 that the new 
definition does not adhere to a mathematically precise formula for 
producing a finding of material damage; however, a lack of mathematical 
precision does not equal a lack of objectivity. West Virginia states 
that water quality standards will be used to determine whether an 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area since the new definition 
references use and the State's water quality standards are set to 
protect existing and designated uses. Thus, material damage 
determinations, though made on a case-by-case basis, will be objective 
in nature. For these same reasons, we disagree with OVEC that the 
WVDEP's 2007 explanation somehow attempts to thwart the West Virginia 
Legislature's intent ``to set forth some objective criteria'' for 
material damage determinations.
    OVEC asserts that the State's March 22, 2007, letter contains 
erroneous interpretations of West Virginia's water quality statutes and 
regulations. First of all, OSM's decision to approve both of these 
amendments is unaffected by any disputes between OVEC and West Virginia 
over the proper interpretation of West Virginia's water quality 
statutes and regulations. The basis for our decisions to approve both 
of these proposed amendments is explained above under the findings 
section. The SMCRA mandate that proposed mines be designed to prevent 
material damage to the hydrologic balance is not a vehicle for using 
SMCRA to enforce CWA requirements.
    Further, disputes over a State's proposal to revise its program 
requirements related to preventing material damage to the hydrologic 
balance under SMCRA are not a proper vehicle for resolving or 
addressing disputes over how the State's CWA requirements should be 
interpreted. In short, this dispute is not relevant to our decisions 
because those decisions are not based upon any particular 
interpretation of the State's CWA application. Having said that, OVEC's 
argument herein appears to rest on its assertion that a single, 
isolated violation of any such water quality law or regulations 
constitutes material damage. However, OVEC cites no law or regulation 
supporting this argument. To the contrary, as discussed above, States 
have considerable discretion in establishing their CHIA process and 
establishing criteria for making the required material damage finding, 
including the extent to which they utilize CWA standards or criteria in 
doing so. Moreover, the WVDEP's letter does not purport to carry the 
force of law, and we do not accord it such weight. In any event, there 
is no Federal regulatory requirement for OSM to request an Attorney 
General's opinion to accompany a state program amendment.
    Finally, we acknowledge an apparent inconsistency between the March 
22, 2007, letter and the WVDEP employee's deposition testimony with 
regard to what constitutes ``material damage''. We have given the 
preponderance of weight to the March 22, 2007, letter, since it is 
subsequent to the deposition testimony, which was given in 2003, and, 
more important, because it was offered in support of this re-submission 
and was signed by the head of the agency. Regardless of anything 
submitted by the WVDEP, however, the ultimate burden is on OSM to 
determine whether these amendments are no less stringent than SMCRA and 
no less effective than the implementing Federal regulations. We have 
met that burden.
    II. The proposed amendments would render the West Virginia Program 
inconsistent with the Federal requirement that regulatory authorities 
define material damage in terms of predetermined limits and ranges for 
specific hydrologic parameters.
    OVEC comments that the proposed amendments are inconsistent with 
SMCRA and less effective than the Federal regulations because they ``* 
* * fail to establish * * * usable criterion for determining material 
damage to the hydrologic balance outside the permit area.''
    As discussed extensively above, OVEC vastly overstates the Federal 
mandate. No such mandate is contained in SMCRA or the Federal 
regulations and no other State or Federal program contains, as part of 
its regulations, the definition that West Virginia proposes to remove. 
While OSM stated in the preamble to the 1983 hydrology regulations (48 
FR 43973) ``* * * that the RA's should establish criteria to measure 
material damage for the purposes of CHIA's,'' it did not establish a 
regulatory mandate that States do so nor require OSM approval of such 
criteria. The only mandate imposed on States as a result of the 1983 
hydrology revised rules was the 1986 mandate under Part 732 that they 
each must establish a definition of ``cumulative impact area'' 
consistent with the new Federal definition at 30 CFR 701.5 added in 
1983. With that said, OSM is approving the proposed amendments with the 
understanding that the State will determine on a case-by-case basis 
meaningful objective material damage criteria in order to make the 
finding regarding material damage required by 30 CFR 773.15(e).
    OVEC comments further on this issue that ``* * * regulatory 
authorities must include pertinent, applicable numeric water quality 
standards and effluent limitations in a set of predetermined material 
damage criteria contained in the CHIA for each proposed surface and 
coal mining operation.'' In addition OVEC is concerned that WVDEP would 
only consider a stream materially damaged if the stream were 
``completely sterilized'' or a use ``destroyed''. In addition, there 
were concerns raised about the WVDEP position that a ``minor'' 
exceedance of water quality standards would not constitute material 
damage.
    OSM disagrees with the statement that effluent limitations and 
water quality standards constitute predetermined material damage 
criteria. OVEC is under the misguided impression that 30 CFR 816.42 and 
817.42 establish fixed material damage criteria for coal mining 
operations. While the plain language of these regulations require 
discharges of water from mining operations to be in compliance with 
applicable State and

[[Page 78978]]

Federal water quality laws and regulations as well as the EPA effluent 
limitations for coal mining operations, there is no assertion that 
discharges that violate such laws and regulations somehow automatically 
constitute material damage to the hydrologic balance. Obviously 
discharges that do not comply with either the effluent limitations or 
water quality standards should be considered performance standard 
violations by the regulatory agency, but whether such discharges 
constitute material damage to the hydrologic balance is another issue 
entirely. OSM believes that a discharge of any magnitude or duration 
into a stream that results in the loss of an existing or designated use 
is not an acceptable impact to the hydrologic balance from SMCRA 
regulated coal mining operations, even if the discharge does not 
violate effluent limitations or water quality standards. Clearly the 
discharge does not have to reach the severity necessary to result in 
the total destruction of a stream in order to constitute material 
damage. On the other hand, one single minor violation of effluent 
limitations could easily occur and result in no detectible impact to a 
receiving stream's existing or designated use.
    OVEC further elaborates on this issue to the extent that ``WVDEP 
proposes to rewrite West Virginia's pertinent, applicable water quality 
standards to adopt more lenient pollutant limits, etc. * * *.'' OVEC 
makes this leap as a result of its previous erroneous conclusion that 
SMCRA mandates the use of water quality standards and effluent limits 
for coal mining operations as predetermined material damage criteria. 
The water quality standards and effluent limits are established by 
State and Federal law pursuant to the CWA. As provided by section 
702(a)(3), nothing in SMCRA, or a State program amendment approved by 
OSM, can alter or modify these standards or limits. OSM cannot, in its 
approval of a State program amendment, alter existing CWA laws in any 
State. Indeed, OSM does not agree that WVDEP is proposing to rewrite 
any CWA laws through these State program amendments. OSM agrees with 
WVDEP as addressed in the previous comment response that water quality 
standards and coal mining effluent limits do not constitute 
predetermined material damage criteria unless the State, at its 
discretion, decides to apply them that way. Our approval of these two 
amendments is not based upon the State deciding to do so.
    OVEC comments that the WVDEP amendment does not guarantee that new 
mining operations will be prevented from discharging additional 
pollutants into streams listed as impaired pursuant to Section 303(d) 
of the Clean Water Act, nor does the amendment prevent WVDEP from 
allowing permits to discharge into waters for which no TMDL has been 
prepared. In addition OVEC requests that ``* * * OSM investigate the 
situation (issuing permits allowing discharges into 303(d) listed 
streams for which there is no TMDL) as part of its evaluation of these 
proposed amendments.''
    Allegations of improper implementation of a State's CWA program are 
beyond the scope of review for a State SMCRA program amendment. 
However, when considering material damage impacts, it is certainly 
appropriate for a State to consider the fact that 303(d) listed streams 
(i.e., those already impaired) are in need of restoration and a 
reduction of pollutant loadings in order to achieve their designated 
use. OSM, in cooperation with other agencies and local watershed 
groups, expends millions of dollars through the abandoned mine land 
program to restore streams biologically impaired from abandoned coal 
mines. These efforts would be meaningless if current mine operators are 
allowed to discharge pollutants into these impaired waters that would 
offset restoration efforts. Thus, there is value in using State water 
quality criteria (both numeric and narrative standards) in such a 
manner that existing and designated uses are protected, and to ensure 
that impaired streams are not further degraded as a result of SMCRA 
regulated mining activities. On the other hand, we do not construe 
Federal material damage requirements as mandating, where there is a 
choice between discharging in compliance with effluent standards into a 
303(d) impaired stream or discharging into a high quality pristine 
stream, that the discharge must go into the high quality stream. In 
short, SMCRA material damage requirements should not be construed as a 
mechanism for enforcing CWA TMDL requirements through SMCRA. OSM 
believes that protecting the hydrologic balance from material damage 
requires a comprehensive analytical approach, considering both short-
term (during mining and reclamation) and long-term (those that are 
projected to extend beyond the release of reclamation performance 
bonds) impacts.
    III. Approval of the proposed amendments would impair or preclude 
effective citizen participation in the administration and enforcement 
of the West Virginia Program.
    The commenter asserts that the amendments replace predetermined, 
quantitative material damage criteria with a vague, subjective 
definition that would surely confound any citizen's effort to 
independently detect or prove a violation of the standard. The cost and 
restricted availability of experts whom a citizen would necessarily 
have to retain in any attempt to prove a violation of such an amorphous 
standard would fatally chill public participation in its enforcement.
    OSM disagrees with this comment. Neither of the amendments that the 
State is proposing effect in any way the public participation 
provisions of the approved West Virginia program. In addition, it 
should be noted that with every permit application filed, the public 
has the opportunity to provide comment and input regarding the proposed 
application. In addition, once the application is approved, the public 
has another opportunity for review through the administrative review 
process under the State counterpart to 30 CFR 775.11. Further, as 
discussed repeatedly above, OVEC's comments represent a serious 
mischaracterization of the two amendments.
    There are also a few other aspects of OVEC's comments that warrant 
a response. The background section seriously mischaracterizes Federal 
CHIA and material damage requirements. The draft CHIA guidelines that 
OSM released in 1985 quoted from in the comments are just that--draft. 
They have never been finalized and certainly do not represent an agency 
position enforceable by regulation, including the State program 
amendment process. Further, the introduction to the draft guidelines 
states clearly that they were only intended as technical guidance and 
should not be construed as enforceable standards. Contrary to OVEC's 
assertion, OSM did not approve the 1993 West Virginia CHIA handbook nor 
has OSM considered the handbook, or revisions to it, as requiring OSM 
approval. Finally, OSM has considered OVEC's request for a delay in the 
effective date of any decision. The benefits of making this decision 
effective immediately are no different than with other State program 
amendments that OSM processes. By regulation in 30 CFR part 732, OSM 
has limited time to process proposed State program amendments. OSM 
often, as in this case, has difficulty meeting those time frames. 
Delaying the effective date would only exacerbate the problem in 
meeting the regulatory time frame, and making sure that State program 
requirements are consistent with Federal requirements as required

[[Page 78979]]

by SMCRA. Therefore, this rule will be effective immediately upon 
publication.
    Additional comments were also received from Charles H. Norris, on 
behalf of Hominy Creek Preservation Association, Inc. (HCPA), Ohio 
Valley Environmental Coalition, Inc, and West Virginia Highlands 
Conservancy, Inc. OSM will refer to these comments collectively as 
those of HCPA.
    HCPA commented regarding a quality review panel established for the 
purpose of assessing the performance of the West Virginia State 
regulatory authority with respect to cumulative hydrologic impact 
assessment (CHIA). HCPA commented that the study indicated that ``The 
CHIA's for eleven of the twelve permits that the panel reviewed failed 
to define conditions that would constitute material damage for the 
cumulative impact area for each permit.'' OSM participated in this same 
study of the WVDEP CHIA process. The study's report was finalized in 
February of 2007, and concluded, among other things, that WVDEP did not 
establish material damage limits in its CHIA process. The commenter 
went on to state that ``* * * the almost universal failure to define 
objective criteria for material damage constituted a recurring, fatal 
flaw in the CHIAs * * *''. OSM acknowledges that WVDEP needs to improve 
its application of CHIA requirements as noted in the 2007 report. Those 
basic conclusions are unaffected by the amendments approved here. We 
find this to be more related to the technical implementation of the 
program than to its regulatory obligations addressed in this decision. 
OSM finds that allowing the State to amend the program to allow a 
definition that the WVDEP believes more correctly aligns with its Clean 
Water Act will create a more stable regulatory platform for consistent 
application of regulatory requirements. As part of its oversight 
process, OSM will continue to monitor WVDEP's progress in addressing 
the findings noted in the 2007 CHIA report.
    HCPA indicated its concern that WVDEP had not specifically 
addressed other aspects of the hydrologic balance beyond surface water 
quality such as ``* * * material damage to stream flow * * *'', and ``* 
* * material damage with respect to the other elements of the 
hydrologic balance; surface water quantity, groundwater quantity, and 
groundwater quality.''
    While OSM embraces the applicability of water quality standards as 
a component of a comprehensive approach to protect and restore surface 
waters, as discussed in the finding section above, other water criteria 
must also be factored into the consideration of material damage. The 
approval of these two amendments today is based upon that 
understanding. As the commenter points out various other elements of 
the hydrologic balance ``* * * surface water quantity, groundwater 
quantity, and groundwater quality * * *'' must also be assessed with 
regard to the specific material damage criteria necessary to assure 
protection of existing and foreseeable uses of these water resources.

Federal Agency Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on April 27, 2007, regarding the 
amendments from various Federal agencies with an actual or potential 
interest in the West Virginia program (Administrative Record No. 1488). 
The results of this consultation are presented below.
    U.S. Fish and Wildlife Service (USFWS) provided comments on May 29, 
2007, on the proposed amendments to the West Virginia program. The 
USFWS expressed its concern with the WVDEP interpretation and 
application of water quality standards relative to its proposed 
definition of material damage. Specifically, the USFWS is concerned 
with the cumulative impacts of minor exceedances of the water quality 
standards. It is also concerned with the allowable one-time events on 
certain aquatic populations such as fish and mussels. All discharges 
from mining operations must be made in compliance with the applicable 
water quality standards and effluent standards. Discharges that violate 
these standards are subject to the enforcement provisions of the State 
program. Multiple discharges resulting in violations over time, even if 
they do not materially damage a stream, are not to be taken lightly by 
either a mine operator or the State RA. Pursuant to 30 CFR 843.13, the 
State could suspend or revoke a permit when a pattern of violations is 
found to exist. In addition, OSM does not consider the amendments 
approved today as limiting the State's authority or obligation to 
consider whether a significant individual event caused or may cause 
material damage to the hydrologic balance outside the permit area.
    The USFWS also recommended retention of the definition of 
cumulative impact, while suggesting the definition be revised to expand 
its applicability to the water quality standards. OSM has decided to 
approve West Virginia's request to remove the existing definition as it 
has been effectively replaced by the new definition of material damage 
in the West Virginia program, and the desired outcome can be achieved 
through the appropriate interpretation and application of the State's 
existing definitions of CIA and CHIA, along with the approved 
definition of material damage. In addition, WVDEP has stated in its 
submission that it intends to ``* * * consider the water quality 
standards it has promulgated * * * as part of the material damage 
inquiry under the surface mining law.'' OSM is approving this amendment 
with the understanding that the State will utilize its water quality 
standards as a means of protecting streams from mining related material 
damage. However, the material damage finding is not limited to water 
quality standards, and therefore OSM does not desire that States adopt 
a definition that could be interpreted so narrowly as to only focus on 
water quality standards. OSM anticipates that the material damage 
finding will be used to address impacts to other water resources, such 
as surface water quantity and groundwater quantity and quality, as 
discussed in this decision. OSM believes that the approved WVDEP 
program includes all of the necessary hydrologic requirements within 
the existing law and regulations, and that the program will be 
implemented in a manner consistent with the intent of SMCRA and the 
Federal regulations with regard to preventing material damage to the 
hydrologic balance outside the permit area.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we 
are required to get a written concurrence from EPA for those provisions 
of the program amendment that relate to air or water quality standards 
issued under the authority of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). On April 27, 2007 
we requested concurrence and comments on the amendment from EPA 
(Administrative Record No. WV 1487).
    EPA provided comments on June 21, 2007, and stated that the 
proposed amendment may be subject to interpretations that could be 
inconsistent with the CWA. It is not clear to which of the two proposed 
amendments EPA was referring. However, nothing in either of these 
amendments would affect or interfere with the State's implementation of 
the CWA. To the contrary, we believe they will improve coordination. 
OSM finds that WVDEP has stated its intent in such a manner that the 
new definition of material damage will not jeopardize the obligation of 
mining operations to be

[[Page 78980]]

conducted in compliance with the applicable water quality standards and 
effluent standards as required by 30 CFR 816/817.42 or the State 
counterpart at CSR 38-2-14.5b. Nothing in our approval of this program 
amendment affords any variance from compliance with the CWA or any 
provisions of SMCRA. With respect to deleting the definition of 
cumulative impact, OSM finds that the State's existing regulations, 
together with the proposed definition of material damage, provide 
comparable protection. All mining operations must be designed to 
minimize impacts to the hydrologic balance within the permit area and 
adjacent areas pursuant to 30 CFR 816/817.41 (a) and CSR 38-2-14.5. 
Using a cumulative impact area based upon information provided by the 
applicant or other agencies as required by 30 CFR 780.21(g), 784.14(f) 
and CSR 38-2-3.22d and .e, the State must evaluate the cumulative 
hydrologic impacts of all anticipated mining upon surface and ground 
water systems so as to prevent material damage to the hydrologic 
balance outside the permit area. By definition, this evaluation must 
take into account the combined impacts of all mining and anticipated 
mining in the cumulative impact area as required by 30 CFR 701.5 and 
CSR 38-2-2.39. The CHIA determines cumulative impact and specifies if 
material damage is expected to occur; therefore deleting the proposed 
definition of cumulative impact does not make the West Virginia program 
inconsistent with the requirements of SMCRA.
    EPA, while expressing its concerns as outlined above, concurred 
with the proposed revisions, with the understanding that all coal 
mining operations would be conducted in full compliance with all 
relevant provisions of the CWA. EPA provided its concurrence based on 
the understanding that 30 U.S.C. 1292 requires that the proposed State 
amendments must be construed and implemented consistent with the CWA, 
NPDES regulations and other relevant environmental statutes.

V. OSM's Decisions

A. Decision on Deletion of Definition of Cumulative Impact

    OSM has reviewed the corresponding changes in regulations, the 
relevant existing regulations, and the current interpretation of the 
proposed regulations as provided by the State. OSM finds that the WVDEP 
has the authority to require proper preparation of PHCs and CHIAs and 
to establish realistic delineations of cumulative impact areas under 
its existing regulations without relying on the current definition of 
cumulative impact. The revision to delete the definition of cumulative 
impact, as it applies to the applicability of the West Virginia 
program, is no less stringent than SMCRA and is no less effective than 
the Federal regulations; therefore the proposed deletion of the 
definition is approved.

B. Decision on the Proposed Definition of Material Damage

    OSM finds that the proposed definition of ``material damage'' and 
OSM's corresponding interpretation of its applicability to the approved 
program as stated in this notice, is no less stringent than SMCRA, and 
no less effective than the Federal regulations; therefore the proposed 
definition, as further described in this notice, is approved.
    To implement these decisions, we are amending the Federal 
regulations at 30 CFR Part 948 which codify decisions concerning the 
West Virginia program. We find that good cause exists under 5 U.S.C. 
553(d)(3) to make this final rule effective immediately. Section 503(a) 
of SMCRA requires that a State program demonstrate that such State has 
the capability of carrying out the provisions of the Act and meeting 
its purposes. Making this regulation effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted 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 
Government

    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 a Federal Regulation Involving 
Indian Lands.

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

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

[[Page 78981]]

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon data and 
assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the West 
Virginia submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose 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 the West 
Virginia 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.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 18, 2008.
Brent Wahlquist,
Director.

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


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
Original amendment submission date  Date of final publication                 Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
March 22, 2007....................  December 24, 2008........  CSR 38-2-2.39 (deletion of cumulative impact
                                                                definition).
                                                               CSR 38-2-3.22.e (approval of material damage to
                                                                the hydrologic balance definition).
----------------------------------------------------------------------------------------------------------------

 [FR Doc. E8-30720 Filed 12-23-08; 8:45 am]
BILLING CODE 4310-05-P