[Federal Register Volume 67, Number 84 (Wednesday, May 1, 2002)]
[Rules and Regulations]
[Pages 21904-21932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10759]
[[Page 21903]]
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Part V
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 948
West Virginia Regulatory Program; Final Rule
Federal Register / Vol. 67, No. 84 / Wednesday, May 1, 2002 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-088-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving proposed amendments to the West Virginia
regulatory program (the ``West Virginia program'') authorized under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
The amendments consist of the State's responses to several required
program amendments codified in the Federal regulations at 30 CFR
948.16. The amendments are intended to revise the West Virginia program
to be consistent with the corresponding Federal regulations and SMCRA.
EFFECTIVE DATE: May 1, 2002.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendments
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 State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253 (a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
the conditions of the approval in the January 21, 1981, Federal
Register (46 FR 5915). You can also find later actions concerning the
West Virginia program and program amendments at 30 CFR 948.10, 948.12,
948.13, 948.15, and 948.16.
II. Submission of the Amendments
By letter dated November 30, 2000 (Administrative Record Number WV-
1189), West Virginia sent us an amendment to its program, under SMCRA
(30 U.S.C. 1201 et seq.). The amendment includes numerous attachments
and was submitted in response to the following required program
amendments: 30 CFR 948.16(a), (dd), (ee), (oo), (tt), (xx), (mmm),
(nnn), (ooo), (qqq), (sss), (vvv)(1), (2), (3), and (4), (www), (xxx),
(zzz), (aaaa), (bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk),
(llll), (mmmm), (nnnn), (oooo), and (pppp).
However, in a previous decision dated October 1, 1999 (64 FR
53200), we found that the State had satisfied the required amendment
codified at 30 CFR 948.16(mmm) and, therefore, it was removed.
In another previous decision dated August 18, 2000 (65 FR 50409),
we found that the State had satisfied the required amendments codified
at 30 CFR 948.16(www) and (xxx), and, therefore, we removed them.
We announced receipt of the proposed amendment in the January 3,
2001, Federal Register (66 FR 335-340). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
Number WV-1194). We did not hold a public hearing or meeting, because
no one requested one. The public comment period ended on February 2,
2001. However, a public commenter requested an extension of the public
comment period, and to accommodate that request we extended the comment
period to February 28, 2001. We received comments from one
environmental organization and three Federal agencies.
We are also including in this final rule document our decisions on
the State's responses to required program amendments that were
submitted to us as part of a separate program amendment package dated
May 2, 2001. We will address the remainder of the May 2, 2001,
amendment in a separate final rule document at a later date. In a
letter dated May 2, 2001 (Administrative Record Number WV-1209) West
Virginia Department of Environmental Protection (WVDEP) submitted
revisions to its Surface Mining Reclamation Regulations, Code of State
Regulations (CSR) 38-2. Enrolled Committee Substitute for House Bill
2663 (Administrative Record Number WV-1210) that passed the Legislature
on April 14, 2001, and was signed into law by the Governor on May 2,
2001, authorized WVDEP to promulgate the regulatory revisions. A notice
(66 FR 28682) announcing receipt and a public comment period on the
amendment was published in the Federal Register on May 24, 2001
(Administrative Record Number WV-1213). The amendments that we are
deciding here were submitted by WVDEP to address the required
amendments codified at 30 CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg),
(hhhh), (jjjj), (nnnn), and (pppp). The comment period closed on the
program amendment on June 25, 2001. We received comments on the State's
responses to the required amendments noted above from two Federal
agencies.
We are also including in this final rule document our decisions on
the State's responses to required program amendments that were
submitted to us as part of a separate program amendment package dated
November 28, 2001. We will address the remainder of the November 28,
2001, amendment in a separate final rule document at a later date. The
amendments that we are deciding here were submitted by WVDEP to address
the required amendments codified at 30 CFR 948.16(kkkk), (llll), and
(mmmm). A notice (67 FR 4689-4692) announcing receipt and a public
comment period on the program amendment package was published in the
Federal Register on January 31, 2002 (Administrative Record Number WV-
1267). The public comment period closed on March 4, 2002. We received
comments on the required amendments noted above from three Federal
agencies.
On January 15, 2002 (Administrative Record Number WV-1271), we met
with the State to discuss the required amendments codified at 30 CFR
948.16. In that meeting, WVDEP agreed to provide us with further
clarification on how and when they would provide additional
information, amend policies set forth in its Permit, Inspection and
Technical Handbooks, or propose rulemaking that would resolve specific
issues.
By letter dated February 26, 2002, WVDEP sent us a status report
regarding the required program amendments codified at 30 CFR 948.16
(Administrative Record Number WV-1276). The report included 14
attachments, and outlined actions taken in an attempt to satisfy the
required program amendments. The actions
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include proposed policies, rules and laws, form changes, and referrals
to legal staff. Several actions include further justification of why
WVDEP considers the State program to be sufficient. WVDEP stated that
the law and rule changes would be proposed during the 2002 regular
legislative session, and that none of the proposed revisions would be
implemented without OSM approval.
By letter dated March 8, 2002, WVDEP sent us revisions to two of
the attachments it had sent us in its February 26 letter
(Administrative Record Number WV-1280). The March 8, 2002, letter also
included one new attachment intended to address the required amendment
at 30 CFR 948.16(sss).
In the March 25, 2002, Federal Register (67 FR 13577-13585) we
reopened the comment period to provide the public an opportunity to
review and comment on the topics discussed in the January 15, 2002,
meeting; WVDEP's February 26 and March 8, 2002, submittals; and related
information that we provided to WVDEP (Administrative Record Number WV-
1285). The comment period closed on April 9, 2002. We received comments
from one industry group and two Federal agencies.
III. OSM's Findings
Following are the findings we made pursuant to SMCRA and the
Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed
amendments to the West Virginia program. We are approving these
amendments and removing the required amendments. Any revisions that we
do not specifically discuss below concern nonsubstantive wording or
editorial changes.
We are presenting our findings below in the following format: a
description of the required amendment codified at 30 CFR 948.16;
followed by a quotation or a description of the State's response to the
required amendment; and our finding.
1. Blasting. 30 CFR 948.16(a) provides that West Virginia must
submit copies of proposed regulations or otherwise propose to amend its
program to provide that all surface blasting operations (including
those using less than five pounds and those involving surface
activities at underground mining operations) shall be conducted under
the direction of a certified blaster.
State Response
This required program amendment should be removed. Current
language in [subsection] 6.1 of the rules states ``a blaster
certified by the Division of Environmental Protection shall be
responsible for all blasting operations''. A letter dated August 30,
1994 from James Blankenship (OSM) to David C. Callaghan (WVDEP
Director) stated ``required amendment 30 CFR 948.16(a) will be
removed because the state has removed the offending language''.
(Federal counterpart 816.61(c))
In the above referenced August 30, 1994, letter (Administrative
Record Number WV-934) we acknowledged that the West Virginia program
does require all blasting operations to be conducted by a certified
blaster. Revised CSR 38-2-6.1 provides that ``a blaster certified by
the Department of Environmental Protection shall be responsible for all
blasting operations including the transportation, storage and use of
explosives within the permit area in accordance with the blasting
plan.'' We find, therefore, that the requirement of 30 CFR 948.16(a) is
satisfied and can be removed.
2. Revegetation. 30 CFR 948.16(dd) provides that West Virginia must
submit proposed revisions to Subsection CSR 38-2-9.3 of its Surface
Mining Reclamation Regulations or otherwise propose to amend its
program to establish productivity success standards for grazing land,
pasture land and cropland; require use of the 90 percent statistical
confidence interval with a one-sided test using a 0.10 alpha error in
data analysis and in the design of sampling techniques; and require
that revegetation success be judged on the basis of the vegetation's
effectiveness for the postmining land use and in meeting the general
revegetation and reclamation plan requirements of Subsections 9.1 and
9.2. Furthermore, West Virginia must submit for OSM approval its
selected productivity and revegetation sampling techniques to be used
when evaluating the success of ground cover, stocking or production as
required by 30 CFR 816.116 and 817.116.
State Response
Productivity: The WVDEP has developed a policy (Attachment 1)
that will use productivity standards developed by the Natural
Resources Conservation Service (NRCS) or other publications of the
United States Department of Agriculture. These standards will be
compared to yields obtained from the particular site.
Ground cover: WVDEP has reviewed the modified Rennie-Farmer
Method in addition to methods used in other states and has developed
a policy (Attachment 1) which references section 3 of ``Technical
Guides of Reference Areas and Technical Standards for Evaluating
Surface Mine Vegetation in OSM Regions I and II,'' by Robert E.
Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of
the Interior, Office of Surface Mining Reclamation and Enforcement.
Productivity: As discussed in the May 23, 1990, Federal Register,
the State's regulations at Subsection 9.3(f) required the measurement
of productivity, but they did not establish productivity success
standards for grazing land, pasture land and cropland (55 FR 21322). In
addition, the State failed to select and submit its productivity
sampling technique(s) to be used in evaluating productivity.
WVDEP submitted a policy on February 26, 2002, addressing this
issue. The policy was revised and resubmitted to us on March 8, 2002,
as Attachment 1. The policy provides that the productivity standards
for grazing land and hayland will be based upon determinations for
similar map units as published in the productivity tables in NRCS soil
surveys for the county or from average county yields recognized by the
U.S. Department of Agriculture (USDA). We note that ``The West Virginia
Bulletin,'' which is published annually by the West Virginia
Agricultural Statistics Service, in cooperation with the USDA, lists
average county yields for various principal crops throughout the State.
The yields for grazing land or hayland will be measured in material
produced per acre or animal units supported. The success of production
shall be equal to or greater than that of the standard obtained from
the tables. The evaluation methods for productivity to be used are
described in Section 1 of ``Technical Guides of Reference Areas and
Technical Standards for Evaluating Surface Mine Vegetation in OSM
Regions I and II,'' by Robert E. Farmer, Jr. et al., OSM__J5701442/TV-
54055A, 1981, U.S. Department of the Interior, Office of Surface Mining
Reclamation and Enforcement.
CSR 38-2-9.3.f of the State's existing Surface Mining Reclamation
Regulations, which establishes the success standard for grazing land
and pasture land, provides where the postmining land use requires
legumes and perennial grasses, the operator shall achieve at least a
ninety (90) percent ground cover and a productivity level as set forth
in the (Technical) Handbook during any two years of the responsibility
period except for the first year. The State does not intend to revise
the Technical Handbook that is referenced in its rules. Instead, the
proposed policy will become part of the Permitting or Inspector
Handbook.
According to the policy, the productivity success standard for
cropland will be determined using yields for reference crops from
unmined lands. Reference crop yields shall be determined from the
current yield
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records of representative local farms in the surrounding area or from
the average county yields recognized by the U.S. Department of
Agriculture. The success of production shall be equal to or greater
than that of the reference crop from unmined areas. Evaluation methods
for productivity to be used are described in Section 1 of the
``Technical Guides of Reference Areas and Technical Standards for
Evaluating Surface Mine Vegetation in OSM Regions I and II,'' by Robert
E. Farmer, Jr. et al., OSM__J5701442/TV-54055A, 1981, U.S. Department
of the Interior, Office of Surface Mining Reclamation and Enforcement.
The policy further provides that the company (permit applicant) is
responsible for providing WVDEP with copies of the productivity tables
and/or data used to determine reference crop yield. Where the USDA or
other agricultural data for productivity does not exist for a
particular county, the applicant will work with WVDEP and USDA to
develop standards for the proposed area.
CSR 38-2-9.3.f.2 provides that for areas to be used for cropland,
the success of crop production from the mined area shall be equal to or
greater than that of the approved standard for the crop being grown
over (the) last two (2) consecutive seasons of the five growing season
liability period. The proposed policy clarifies that the success
standard for cropland is based on yields for reference crops from
``unmined'' lands. The policy further provides that reference crop
yields shall be based on current yield records of representative local
farms in the surrounding area or from the average county yields. The
existing rules do not provide for the use of reference areas in
evaluating the productivity success of cropland. As proposed in the
policy, an operator will be required to use reference areas in the
vicinity of the proposed mining operation or average county yield
records in setting the success standard when cropland is the approved
postmining land use. To ensure that management levels and other factors
are given proper consideration, we recommend that yield data from both
the reference areas and county records be given equal weight when
establishing productivity success standards for cropland.
We encourage WVDEP to cite in its rules and/or policy the specific
productivity standards developed by NRCS and the other publications of
the USDA that the State plans to use. We also recommend the use of the
``West Virginia Bulletin'' published by the WV Department of
Agriculture and the USDA. A copy of ``West Virginia Bulletin 2001, No.
32'' was provided to WVDEP on February 6, 2002. NRCS officials say that
some soil surveys lack sufficient information to rate the yields for a
particular soil type, especially in certain mining counties, and most
yield information is based on higher levels of management. Although the
WV Bulletin lacks yield information based on soil type, NRCS concurs
that a combination of reports may be best to use, especially when the
soil survey states that the soil is too variable to rate. Nevertheless,
the lack of reference to specific publications does not render the
proposed policy less effective than the Federal requirements. When
submitting permit applications or permit modifications for existing
operations with agricultural postmining land uses, applicants will be
expected to include productivity data from the most current NRCS soil
surveys and USDA publications for WVDEP review and approval. The
applicant will be required to consult with WVDEP, NRCS and USDA to
verify existing information or to develop data when production data is
insufficient or missing for a particular county or area.
CSR 38-2-9.3.d and 9.3.e provide that when evaluating vegetative
success, WVDEP must use a statistically valid sampling technique with a
90 percent statistical confidence interval. The proposed policy
requires the use of a sampling technique for measuring productivity as
set forth in Section 1 of the ``Technical Guides of Reference Areas and
Technical Standards for Evaluating Surface Mine Vegetation in OSM
Regions I and II.'' Section 1 is entitled, ``Planning and Evaluating
Agricultural Land Uses on Surface-Mined Areas.''
As mentioned above, 30 CFR 948.16(dd) requires the establishment of
productivity success standards for grazing land, pastureland, and
cropland. Because the proposed policy establishes productivity success
standards for grazing land, pastureland and cropland that are no less
effective than those standards set forth in 30 CFR 816.116 and 817.116,
this portion of the required amendment has been satisfied and can be
removed. In addition, because State rules at CSR 38-2-9.3.d and 9.3.e
require the use of a statistically valid sampling technique with a 90
percent statistical confidence interval and the proposed policy
provides for the use of a productivity sampling technique that uses a
90-percent statistical confidence interval (i.e., one-sided test with a
0.10 alpha error) for measuring grazing land, pastureland and cropland,
that portion of the required amendment has been satisfied and can be
removed.
Ground Cover: As discussed in the May 23, 1990, Federal Register
(55 FR 21322), the State program did not require that revegetation
success be judged on the basis of the vegetation's effectiveness for
the postmining land use and in meeting the general revegetation and
reclamation plan requirements of Subsections 9.1 and 9.2. Furthermore,
the State has failed to submit for OSM approval its selected
revegetation sampling techniques to be used when evaluating ground
cover.
Initially, WVDEP submitted its modified Rennie-Farmer Method as its
preferred method for evaluating the success of ground cover. After
further evaluation of that method and other State methods, WVDEP
submitted a policy on February 26, 2002, and revised it on March 8,
2002, which provides that ground cover success shall be based on the
Rennie and Farmer technique described in Section 3 of the ``Technical
Guides of Reference Areas and Technical Standards for Evaluating
Surface Mine Vegetation in OSM Regions I and II,'' by Robert E. Farmer,
Jr. et al., OSM__J5701442/TV-54055A, 1981, U.S. Department of the
Interior, Office of Surface Mining Reclamation and Enforcement. Section
3 is entitled, ``An Inventory System for Evaluating Revegetation of
Reclaimed Surface Mines to Forest Resource Conservation Standards,''
and contains a statistical technique for evaluating ground cover and
stockings.
CSR 38-2-9.3.d and 9.3.e. provide that when evaluating vegetative
success, WVDEP must use a statistically valid sampling technique with a
90 percent statistical confidence interval. Ground cover, production,
or stocking can only be considered equal to the approved success
standard when they are not less than 90 percent of the success
standard. When evaluating vegetative success, an inspection report must
be filed by the inspector. Only after the applicable success standards
have been met and documented can Phase II or Phase III bond release be
approved by the State.
Because State rules at CSR 38-2-9.3 and the proposed policy require
the use of a statistical sampling technique for measuring ground cover
and that measurement technique requires the use of a 90-percent
statistical confidence interval (i.e., one-sided test with a 0.10 alpha
error), that portion of the required amendment at 30 CFR 948.16(dd) has
been satisfied and can be removed.
The West Virginia program at CSR 38-2-9.1.a. and 9.1.d. provide for
the establishment of a diverse, effective and permanent vegetative
cover of the same seasonal variety native to the area of disturbed
land, or introduced species
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that are compatible with the approved postmining land use. The
requirement that the established vegetation be compatible with the
approved postmining land use satisfies the requirement at 30 CFR
948.16(dd) which states that revegetation must be judged on the basis
of the vegetation's effectiveness for the postmining land use.
Therefore, that portion of 30 CFR 948.16(dd) has been satisfied and can
be removed.
30 CFR 948.16(dd) also requires that the West Virginia program
contain the requirement that revegetation success be judged on the
basis of the vegetation's effectiveness in meeting the general
revegetation and reclamation plan requirements of subsections CSR 38-2-
9.1 and 9.2. As mentioned above, CSR 38-2-9.3.e., concerning the final
bond release inspection, satisfies this requirement by providing that,
``. . . if applicable standards have been met, the Director shall
release the remainder of the bond.'' CSR 38-2-12.2.c.3 further provides
that only upon successful completion of the reclamation requirements of
the Act, these rules and the permit conditions, may final bond release
be approved by the Director. The ``applicable standards'' referred to
at CSR 38-2-9.3.e. include the revegetation success standards and the
``reclamation requirements'' at CSR 38-12.2.c.3 would include all other
requirements of the West Virginia program, including those requirements
at CSR 38-2-9.1 and 9.2. Therefore, the remaining portion of 30 CFR
948.16(dd) has been satisfied and can be removed.
3. Prime Farmland. 30 CFR 948.16(ee) provides that West Virginia
must submit documentation that the NRCS has been consulted with respect
to the nature and extent of the prime farmland reconnaissance
inspection required under Subsection 38-2-10.1 of the State's Surface
Mining Reclamation Regulations. In addition, the State shall either
delete paragraphs (a)(2) and (a)(3) of Subsection 38-2-10.2 or submit
documentation that the NRCS State Conservationist concurs with the
negative determination criteria set forth in these paragraphs.
State Response
Comments from NRCS resolve this issue (WV Administrative Record
No. WV-1203). The NRCS stated in their comment letter dated February
9, 2001, to OSM that all prime farmlands in the State have been
mapped and are available. WVDEP has contacted the NRCS and has
drafted a letter seeking further concurrence (Attachment 1A).
In an attempt to clarify these issues and to gain further insight
into NRCS comments of February 9, 2001 (Administrative Record Number
WV-1203), we had several discussions with NRCS officials about these
issues. Through these discussions we learned that NRCS does not have
soil surveys completed for all counties in West Virginia. NRCS has
completed soil surveys for approximately 98 percent of the State. They
have draft reports for Logan, Mingo, Lincoln, and McDowell Counties
that still need to be published. The final reports will not be
published until late 2002 or early 2003. In the meantime, NRCS will
have to conduct soil investigations in counties that do not have
completed soil surveys. NRCS does not feel that it is necessary to
conduct prime farmland reconnaissance inspections in all counties of
West Virginia. However, the procedural details for identifying and
protecting prime farmland within the State need to be negotiated
through a memorandum of understanding (MOU) or an exchange of letters
between NRCS and WVDEP.
In its February 25, 2002, letter that comprised Attachment 1A,
WVDEP provided NRCS a copy of its rules governing prime farmlands at
CSR 38-2-10. WVDEP requested that NRCS address its reconnaissance
inspection requirements and concur with its negative determination
criteria.
WVDEP described the State's reconnaissance inspection process as it
currently exists. Included in that description were the following
criteria, one or more of which can be the basis for a prime farmland
negative determination: (1) No historical use of the land as cropland;
(2) The slope of the land in the permit area is greater than 10
percent; (3) Other factors (i.e., rocky surface, frequent flooding)
disqualify the land as prime farmland; and (4) A soil survey by a
qualified person.
The letter further stated that WVDEP reviews the applicant's
information in the application and will check county soil survey maps.
The soils in the area are compared to a list from ``West Virginia's
Prime Farmland Soil Mapping Units'' by NRCS (Attachment 3P). If the
soils in the proposed mining area are not on the list, then the
negative determinations are approved. If the negative determination is
not approved, then the NRCS is consulted. If prime farmland is
identified, then a much more detailed plan is required.
For counties where no mapping has been published, WVDEP's procedure
is described in Attachment 2P. If the slopes are less than 10 percent
and the area has historically been used as cropland, then NRCS is
consulted.
WVDEP further stated that the criteria for both the slope and the
rocky or flooded land were based on NRCS literature. Of all the soils
identified in the ``West Virginia's Prime Farmland Soil Mapping Units''
document, not one has a slope greater than 10 percent and that same
document says that prime farmland cannot be in areas that are flooded
frequently nor in areas that are rocky (10 percent cover of rock
fragments coarser than 3 inches).
Attachment 2P contains a proposed policy regarding prime farmlands
identifications. The policy provides that soil surveys prepared by the
NRCS will be the basis for the final determination of prime farmlands
in West Virginia involving surface mining permits. In the cases where
soil surveys are not complete in a county and prime farmland
involvement is possible, the NRCS will conduct a soil survey for the
permit area for final determination.
If a permit application contains any areas with less than 10
percent slope and it is evident the area has been used for crops at
least 5 years out of the last 20 years, it is possible that these areas
could be considered prime farmland.
If this condition is present, the applicant should check the NRCS
soil survey for that county. If a soil survey does not exist for a
particular county, the applicant should consult the local NRCS District
Conservationist for a prime farmland determination.
In counties where soil surveys have been published, the applicant
must locate the permit on the soils map and by using the symbols on the
map, determine the soil types in the proposed area. Then, comparison
with the attached list of soils constituting prime farmlands in West
Virginia will have to be made. If the soil type is considered prime
farmland on the list, the District Conservationist for that county must
be contacted for final determination.
If the permit application involves prime farmland, all provisions
of Sections 507(b)(16) and 515(b)(7) of Public Law 95-87 (Sections 22-
3-9(a)(15) and 22-3-13(b)(7) of the West Virginia Surface Coal Mining
and Reclamation Act) and Section 10 of the West Virginia Surface Mining
Reclamation Regulations will apply.
Attachment 3P contains the publication entitled, ``West Virginia's
Prime Farmland Soil Mapping Units.'' This publication contains a
listing prime farmland soil mapping units throughout the State. The
publication is dated April 1982.
As discussed in the May 23, 1990, Federal Register (55 FR 21322),
although the State's negative determination criteria appeared
[[Page 21908]]
generally consistent with the national criteria established at 7 CFR
657, Federal rules allow the NRCS to alter these criteria and establish
others. Furthermore, the definition of ``prime farmland'' at 30 CFR
701.5 vests responsibility for establishing prime farmland
qualification criteria with the U.S. Secretary of Agriculture. To
ensure that the State program is no less effective than the Federal
definition of ``prime farmland'' in 30 CFR 30 CFR 701.5, West Virginia
was required to submit documentation that the NRCS has concurred with
all negative determination criteria contained in Subsection 10.2,
except those of paragraph (a)(1), which pertain to historical use for
cropland. In addition to demonstrating compliance with the consultation
requirements of 30 CFR 785.17(b)(1), the State was to submit
documentation that it has consulted with the NRCS State Conservationist
in determining the nature and extent of the reconnaissance inspection.
On March 7, 2002, NRCS responded to WVDEP's inquiries regarding
prime farmland (Administrative Record Number WV-1290). The NRCS
acknowledged that it is the Federal agency with delegated authority
under law to make determinations on the existence of prime farmland.
NRCS acknowledged that it provides information on prime farmland
through the soil survey program as part of its technical assistance
effort to the fourteen soil conservation districts in West Virginia.
With respect to reconnaissance inspections, NRCS acknowledged that
it could be satisfied by using locally available information. The soil
map units in the soil survey are listed for prime farmland and are
cross-referenced in the local Field Office Technical Guide. NRCS found
that the reconnaissance inspection procedures outlined in WVDEP's
proposed policy, ``Prime Farmlands Identifications,'' Attachment 2P,
were acceptable to them. However, they requested that WVDEP change
``SCS'' to ``NRCS.''
In regard to the negative determination criteria, NRCS stated that
its definitions were not consistent with several parts of CSR 38-2-10.
Because cropping history is not considered in the NRCS definition of
prime farmland, it could not agree with any historic use of the land as
set forth in Subsections 10.2.a.1 through 10.2.a.1.C. According to the
NRCS, prime farmland can be cultivated, cropland, pasture, or
forestland. However, it cannot be built up land or water. The Federal
regulations at 30 CFR 701.5 define prime farmland to mean those lands
which are defined by the Secretary of Agriculture in 7 CFR Part 675 and
which have historically been used for cropland. The State's
requirements regarding historical use as cropland, like the Federal
definition of prime farmland at 30 CFR 701.5, is consistent with
Section 701(20) of SMCRA. That section defines prime farmland to have
the same meaning as that previously prescribed by the Secretary of
Agriculture on the basis of such factors as moisture availability,
temperature regime, chemical balance, permeability, surface layer
composition, susceptibility to flooding, erosion characteristics, and
which historically have been used for intensive agricultural purposes.
As discussed above, West Virginia was required to submit documentation
that the NRCS concurs with all negative determination criteria
contained in Subsection 10.2, except those of paragraph (a)(1), which
pertain to historical use for cropland. In addition, the State's
regulations at subsection 10.2.a.1 through 10.2.a.1.C are substantively
identical to the Federal regulations at 30 CFR 701.5 (definition of
``historically used for cropland''). NRCS concurred with Subsection
10.2.a.2 and 10.2.a.3 relating to slopes greater than 10 percent and
the presence of stones on the surface. It also agreed with Subsection
10.2.a.4 and recommended the use of soil surveys in making negative
determinations.
NRCS concluded that nearly all areas in the State have basic
information on prime farmland. If new mapping is in progress, they
would provide advance information at the mapping scale used. Generally,
NRCS makes prime farmland determinations at the scale of mapping used
for the soil survey, either 1:12,000 or 1:24,000. This information is
published through the soil survey or the local Field Office Technical
Guide and provided through West Virginia's fourteen soil conservation
districts. NRCS stated that it was presently updating its prime
farmland statewide list.
Because the NRCS concurs with the State's negative determination
criteria set forth at CSR 38-2-10.2.a.2 and 10.2.a.3, regarding
steepness, stoniness and flooding, OSM finds that the State prime
farmland requirements at CSR 38-2-10.2 are no less effective than the
Federal requirements at 30 CFR 785.17. Therefore, that portion of the
required amendment at 30 CFR 948.16(ee) regarding negative
determination criteria has been satisfied and can be removed.
In addition, the State was to submit documentation demonstrating
that it had consulted with the NRCS in determining the nature and
extent of the reconnaissance inspection as provided under CSR 38-2-
10.1. As mentioned above, the NRCS found the reconnaissance inspection
procedures outlined in WVDEP's proposed policy, ``Prime Farmlands
Identifications,'' to be acceptable. Because the NRCS concurs with the
State's proposed reconnaissance inspection procedures, OSM finds the
State's reconnaissance inspection requirements as set forth at CSR 38-
2-10.1 and further defined in the proposed policy, ``Prime Farmlands
Identifications,'' to be no less effective than those Federal
requirements set forth at 30 CFR 785.17(b), which require a
reconnaissance inspection in all instances. Therefore, the remaining
portion of the required amendment at 30 CFR 948.16(ee) requiring the
concurrence of NRCS on the State's reconnaissance inspection procedures
has been satisfied and can be removed.
4. Spillway Design. 30 CFR 948.16(oo) provides that West Virginia
must submit proposed revisions to Subsection 38-2-5.4(b)(8) of its
Surface Mining Reclamation Regulations to require that excavated
sediment control structures, which are at ground level and that have an
open exit channel constructed of non-erodible material, be designed to
pass the peak discharge of a 25-year, 24-hour precipitation event.
State Response
The WVDEP is proposing language (Attachment 2) that all sediment
control structures spillways will be designed based on a 25-year/24-
hour storm, except for haulroads.
State rules at CSR 38-2-5.4.b.8 currently require all sediment
control structures or other water retention structures be designed with
spillways to safely pass a 25-year, 24-hour precipitation event.
However, subsection 5.4.b.8 contains a provision that allows excavated
sediment control structures, which are at ground level and have an open
exit channel constructed of non-erodible material, to be designed to
pass the peak discharge of a 10-year, 24-hour precipitation event.
As discussed in the October 4, 1991, Federal Register (56 FR 50260)
notice, the Federal regulations require that all sediment control
structures not meeting the size or other criteria of 30 CFR 77.216(a)
must have spillways designed to pass the peak discharge of a 25-year,
6-hour precipitation event. Therefore, the requirement at subsection
5.4.b.8 was found to be less effective than the Federal requirements at
30 CFR 816/817.46(c)(2)(ii)(B) [now 30 CFR 816/
[[Page 21909]]
817.46(c)(2) and 30 CFR 816/817.49(a)(9)(ii)(C)].
The Federal regulations at 30 CFR 816/817.46(c)(2) provide that a
sedimentation pond must include either a combination of principal and
emergency spillways or single spillway configured as specified in 30
CFR 816/817.49(a)(9). The Federal regulations at 30 CFR 816/
817.49(a)(9)(ii)(C) further provide that the spillway for an
impoundment not included in paragraph (a)(9)(ii) (A) and (B) of this
section must be designed and constructed to safely pass a 25-year, 6-
hour or greater precipitation event as specified by the regulatory
authority.
On August 30, 1994, we provided the State a follow-up letter
regarding several proposed revisions that the State had made to its
program in 1993 (Administrative Record Number WV-934). As mentioned
above, in October 1991, we had required the State to amend its program
and provide that that all sediment control structures not meeting the
size or other criteria of 30 CFR 77.216(a) must have spillways designed
to pass the peak discharge of a 25-year, 6-hour precipitation event.
Although we required the State to amend its program, the State had not
proposed any revisions at the time. Instead, the State maintained that
these types of structures by their vary nature are not subject to
catastrophic failure or excessive erosion. According to the State, the
design storm criteria are established to address these potentials and
are of not significance for these structures. Initially WVDEP thought
that the Illinois program contained a provision similar to the 10-year,
24-hour standard for excavated sediment control structures that WVDEP
was seeking to adopt for West Virginia. However, we explained that the
Illinois program does not contain such a standard. Rather, the Illinois
program contains an exemption from the quarterly inspection
requirements for excavated sediment control structures. The inspection
frequency was reduced because most excavated sediment control
structures have no embankments to examine for structural weaknesses or
other hazardous conditions. West Virginia has a similar standard.
WVDEP stated that a spillway design for a 25-year, 24-hour
precipitation event would adversely affect the effectiveness of the on-
bench sediment control system. We and WVDEP decided that an OSM
engineer and a WVDEP engineer would be assigned to review the spillway
design standards and determine if the proposed change would actually
reduce the effectiveness of on-bench sediment control systems. Upon
completion of the joint State/Federal review, it was determined that
spillways designed to safely pass a 25-year, 24 hour precipitation
event would only require minor changes, and they would not impact the
use of excavated sediment control structures (Administrative Record
Number WV-1273). In addition, the engineers determined that there is no
peak discharge control problem because the open exit channels for these
sediment control structures are currently larger than required due to
the size of the equipment used to construct them. As the result of the
review, WVDEP proposed revisions to its spillway design requirements at
30 CFR 38-2-5.4.b.8.
In its February 26, 2002, submission, Attachment 2 contains a
proposed revision for CSR 38-2-5.4.b.8. As amended, the provision that
exempted excavated sediment control structures from the 25-year, 24-
hour spillway design requirement is deleted. In its place, is language
that provides the following: ``provided, however that this subsection
does not apply to haulroads.'' As proposed, CSR 38-2-5.4.b.8. now reads
as follows.
5.4.b.8. Be designed to safely pass a twenty-five (25) year,
twenty-four (24) hour precipitation event. The combination of both
principal and/or emergency spillway of the structures shall be
designed to safely pass the peak discharge of a twenty-five (25)
year, twenty-four (24) hour precipitation event, provided, that a
single open channel spillway may be used only if it is of non-
erodable construction and designed to carry sustained flows; or
earth or grass-lined and designed to carry short term, infrequent
flows at non-erosive velocities where sustained flows are not
expected; provided, however, that this subsection does not apply to
haulroads.
The proposed exemption from the 25-year, 24-hour design standard
for a haulroad drainage control system is consistent with 30 CFR 816/
817.151(d) and CSR 38-2-4.6, which provides that ditch lines, culverts,
bridges or other structures associated with haulroads must be capable
of passing the peak discharge of a 10-year, 24-hour precipitation
event.
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
We find that the proposed revisions at CSR 38-2-5.4.b.8 regarding
spillway design requirements for sediment control and other water
retention structures are no less effective than the Federal
requirements at 30 CFR 816/817.46(c)(2) and 816/817.49(a)(9)(ii)(C). On
May 23, 1990, we approved the 24 hour event standard as being no less
effective than a 6-hour event standard (55 FR 21304, 21318). Therefore,
the required amendment at 30 CFR 948.16(oo) has been satisfied and can
be removed. Upon promulgation of a final rule by the State, WVDEP will
be required to provide a copy of it to OSM. OSM will review it to
ensure that the language contained therein is identical to that
language which is being approved today. Any substantive differences in
the language will be subject to further public review and approval by
us as a program amendment.
5. Certification of Sediment Control Structures. 30 CFR 948.16(tt)
provides that West Virginia must submit proposed revisions to
subsections 38-2-5.4(b)(1) and 5.4(d)(1) to require that all structures
be certified as having been built in accordance with the detailed
designs submitted and approved pursuant to subsection 3.6(h)(4), and to
require that as-built plans be reviewed and approved by the regulatory
authority as permit revisions.
State Response
This required program amendment should be removed. The WVDEP has
developed a procedure for review of as-built certifications (This
procedure is included in the WVDEP Inspection and Enforcement
Handbook B copy attached) For structures with minor design changes,
the inspector will submit as-built plans in accordance with 5.4.b.
Minor changes are those within the construction tolerances described
in 3.35 of the rules. For structures with major design changes, a
permit revision in accordance with 3.28.c of the rules is required
to be submitted and approved prior to certification. The ``as
built'' certifications are after review incorporated as part of the
permit and the Aas built'' drawings become the design for the
structure. A 1988 OSM directive (copy attached) describes the
federal policy and procedures for processing construction
certifications when they indicate that a structure has been
[[Page 21910]]
constructed differently from the approved design and this OSM
directive treats ``as built'' certifications in a manner similar to
the WV program.
In its response to this required amendment, quoted above, WVDEP
stated that minor changes are those within the construction tolerances
described in subsection 3.35 of the rules. Sediment control structures
that have been constructed with minor changes that are within approved
construction tolerances are, in effect, built in accordance with the
approved, certified designs in the preplan. Therefore, we find that
such structures are built in compliance with the requirement at CSR 38-
2-5.4.b.1. which provides that sediment control structures be
``constructed in accordance with the plans, criteria, and
specifications set forth in the preplan.''
WVDEP also stated that a permit revision is required for as-built
structures with major design changes. Therefore, the requirements at
CSR 38-2-3.28 concerning permit revisions would apply. In addition, CSR
38-2-5.4.b.1., concerning design and construction requirements,
provides that as-built plans must be submitted by the operator and
approved by WVDEP immediately following construction. The as-built
plans shall indicate the original design, the extent of changes, and
reference points. CSR 38-2-5.4.b.1. also provides that all sediment
control or other water retention structures be certified in accordance
with CSR 38-2-5.4.d. This satisfies the portion of 30 CFR 948.16(tt)
that requires certification in accordance with the detailed design
plans submitted and approved pursuant to subsection 3.6.h.4, which
requires the Secretary to approve detailed design plans for a structure
before construction begins. CSR 38-2-5.4.d.1. provides that if as-built
plans are submitted, the certification shall describe how and to what
extent the construction deviates from the proposed design, and the
explanation and certification of how the structure will meet the
performance standards.
We find that the West Virginia program requires that as-built
sediment control structures be reviewed and approved as permit
revisions, and that all sediment control structures shall be certified.
Therefore, the required amendment at 30 CFR 948.16(tt) is satisfied and
can be removed.
6. Constructed Outcrop Barriers. 30 CFR 948.16(xx) provides that
West Virginia must revise CSR 38-2-14.8(a) to specify design
requirements for constructed outcrop barriers that will be the
equivalent of natural barriers and will assure the protection of water
quality and will insure the long-term stability of the backfill.
State Response
The State added a new provision at CSR 38-2-14.8.a.6. The new
language is as follows:
14.8.a.6. Constructed outcrop barriers shall be designed using
standard engineering procedures to inhibit slides and erosion to
ensure the long-term stability of the backfill. The constructed
outcrop barriers shall have a minimum static safety factor of 1.3,
and where water quality is paramount, the constructed barriers shall
be composed of impervious material with controlled discharge points.
In addition, the State contended in its February 26, 2002, program
submissions that:
The word ``inhibit'' as in ``to inhibit slides and erosion'' is
(no) less effective than the Federal standard of ``prevent'' at 30
CFR 816.99(a).
The State statutory language for outcrop barriers at W.Va. Code
22-3-13(b)(25) requires the retention of the natural barrier to
``inhibit'' slides and erosion. As set forth in the Federal Register
dated January 21, 1981, OSM agrees that provisions regarding natural
barriers at W.Va. Code 22-3-13(b)(25) and (c)(4) were found to be
consistent with Section 515(b)(25) of SMCRA.
Standard Engineering Practices
The constructed outcrop barriers are designed structures that have
a required minimum long-term static safety factor, while the natural
outcrop barriers are not designed structures and are not required to
have a minimum factor of safety. Furthermore, the analysis of stability
includes consideration of the material to be placed, the foundation,
and site conditions. The WVDEP is in the process of developing
guidelines for constructed outcrop barriers that will include:
requirements for the outslope; sequencing of construction of the
outcrop barrier; and minimum factor of safety when barrier is part of
the sediment control system (Attachment 9).
The State guideline for constructed outcrop barriers is contained
in Attachment 9. It is entitled ``Constructed Outcrop Barriers.''
Attachment 9 provides that standard engineering practices for
constructed outcrop barriers shall include the following:
1. The design of the constructed barrier shall take into
consideration site conditions.
2. The construction of the outcrop barrier shall occur
simultaneously with the removal of the natural barrier and be located
at or near the edge of the lowest coal seam being mined. Temporary
measures must be (in) place until the barrier is constructed.
3. The recommended outslope of the constructed barrier is 2v:1v
(This is a typographical error and should be 2h:1v) with a static
safety factor of 1.3.
4. If the proposed outslope is steeper than 2v:1v (This is a
typographical error and should be 2h:1v), the constructed barrier shall
be designed to have a static safety factor of 1.5.
5. If constructed barrier is part of the sediment control system
(sediment ditch), the constructed barrier shall be designed to have a
static safety factor of 1.5.
As discussed in the January 21, 1981, Federal Register (46 FR 5919)
notice, State law provides for the use of constructed outcrop barriers
to prevent slides and erosion, while Section 525(b)(25) of SMCRA
requires the retention of a natural barrier. It was determined in 1981
that the State's alternative for a constructed barrier may be more
stringent than the SMCRA requirement. However, at the time, the State
program lacked specific criteria for the design of constructed outcrop
barriers that will ensure that their performance in preventing slides
and erosion would be more effective than that of a natural barrier.
In April 1983, West Virginia submitted specific design criteria for
outcrop barriers. The approval of the design criteria for constructed
outcrop barriers was announced in the November 16, 1983, Federal
Register notice (48 FR 52037). However, the design criteria were
inadvertently deleted from the State program. As discussed in the
October 4, 1991, Federal Register notice (56 FR 50265), we required the
State to specify design requirements for constructed outcrop barriers.
We later published a notice in the February 21, 1996, Federal
Register (61 FR 6525) which announced the modification of the required
amendment at 30 CFR 948.16(xx) requiring that the State amend its
program at CSR 38-2-14.8.a to specify design requirements of outcrop
barriers that will be equivalent to natural barriers and will assure
the protection of water quality and ensure the long-term stability of
the backfill. The proposed rule and the new guideline are intended to
satisfy that requirement.
Section 22-3-13(b)(25) of the Code of West Virginia (W. Va. Code)
provides that constructed barriers may be allowed under specified
circumstances, provided that, at a minimum, the constructed barrier
must be of sufficient width and height to provide adequate stability
and the stability factor must equal or exceed that of the natural
outcrop barrier. Furthermore, where
[[Page 21911]]
water quality is paramount, the constructed barrier must be composed of
impervious material with controlled discharge points.
As discussed above, the revised rule at CSR 38-2-14.8.a.6 further
provides that constructed outcrop barriers shall be designed using
standard engineering procedures to inhibit slides and erosion to ensure
the long-term stability of the backfill. The constructed outcrop
barriers shall have a minimum static safety factor of 1.3, and where
water quality is paramount, the constructed barriers shall be composed
of impervious material with controlled discharge points. The proposed
rule was included in WVDEP's program amendment of May 2, 2001
(Administrative Record Number WV-1209). The promulgation of CSR 38-2-
14.8.a.6 was authorized by Enrolled Committee Substitute for House Bill
2663. The bill was passed by the Legislature on April 14, 2001, and
signed into law by the Governor on May 2, 2001 (Administrative Record
Number WV-1210).
In addition, WVDEP has proposed a guideline that further clarifies
what standard engineering practices will be followed when allowing for
the removal of a natural barrier and constructing an outcrop barrier.
Approval of the proposed guideline is being made with the understanding
that the State will correct the typographical errors noted above.
We find that the specific design criteria described above will
ensure that constructed outcrop barriers will be as effective as
natural barriers in preventing slides and erosion. In addition, we find
that the proposed rule at CSR 38-2-14.8.a.6, together with the proposed
guideline containing standard engineering practices for the design of
constructed outcrop barriers, are in accordance with Section 515(b)(25)
of SMCRA. Therefore, the required program amendment codified at 30 CFR
948.16(xx) regarding constructed outcrop barriers is satisfied with the
adoption of the proposed rule and guideline and can be removed.
7. Unjust Hardship Criterion. 30 CFR 948.16(nnn) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption, to
revise Section 22B-1-7(d) to remove unjust hardship as a criterion to
support the granting of temporary relief from an order or other
decision issued under Chapter 22, Article 3 of the W. Va. Code.
State Response
The WVDEP is proposing language (Attachment 3) to exclude unjust
hardship as criteria to support the granting of temporary relief
under WV Code 22-3.
In its February 26, 2002, submission, WVDEP included Attachment 3.
Attachment 3 contains a proposed revision to W. Va. Code Section 22B-1-
7, Appeals to boards. The attachment consists of additions and
deletions to language at paragraphs (d) and (h) of Section 22B-1-7 and
identifies how these statutory provisions are to be amended. Only
paragraph (d) pertains to the required amendment relating to unjust
hardship.
WVDEP proposes to amend paragraph (d) by adding a proviso that
provides as follows: ``Provided; however, the criterion of unjust
hardship cannot be used to support the granting of temporary relief for
an order or other decision issued under article three, chapter twenty-
two of this code.'' The proposed language was submitted to the
Legislature for consideration.
On February 27, 2002, the proposed language was modified and
reported out of committee as Senate Bill 735. The revised language
reads as follows: ``Provided, That unjust hardship shall not be grounds
for granting a stay or suspension of such order, permit or official
action for an order issued pursuant to article three, chapter twenty-
two of this code.'' Engrossed Senate Bill 735 passed the Senate on
March 1, 2002, and was reported to the House Judiciary Committee where
it died in committee without further action by the Legislature.
As announced in the February 21, 1996, Federal Register (61 FR
6516) on we did not approve the language at Section 22B-1-7(d)
concerning allowing temporary relief where the appellant demonstrates
that the executed decision appealed from will result in the appellant
suffering an ``unjust hardship,'' because the language is inconsistent
with Sections 514(d) and 525(c) of SMCRA, which do not allow temporary
relief to be granted based on a showing of unjust hardship. As
discussed in the July 14, 1998, Federal Register notice (63 FR 37775),
our earlier required amendment regarding unjust hardship was modified
based on a settlement agreement in West Virginia Mining and Reclamation
Association v. Babbitt, Civil Action No. 2:96-0371 (S.D. W.Va., July
11, 1997). We clarified our earlier decision by stating that Section
22B-1-7(d) is not approved only to the extent that it includes unjust
hardship as a criterion to support the granting of temporary relief
from an order or other decision issued under Chapter 22, Article 3 of
the W. Va. Code, which is the State counterpart to SMCRA.
WVDEP has informed the Surface Mine Board that unjust hardship is
an invalid basis for granting temporary relief for SMCRA purposes. In
our meeting with the WVDEP on January 15, 2002, WVDEP stated that, to
its knowledge, the Surface Mine Board has not used this criterion, and
the State has never asked that it be a consideration in granting a stay
or suspending an order pursuant to W. Va. Code 22B-1-7(d)
(Administrative Record Number WV-1271).
On October 26, 1988, the West Virginia Supreme Court of Appeals in
Canestraro v. Faerber ruled that, ``When a provision of the West
Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et
seq., is inconsistent with Federal requirements in the Surface Mining
Control and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the State Act
must be read in a way consistent with the Federal Act.'' See Canestraro
v. Faerber, 179 W. Va. 793, 374 S.E.2d 319 (1988) (Administrative
Record Number WV-761).
In another decision rendered on July 12, 1996, the West Virginia
Supreme Court of Appeals held that, pursuant to 30 CFR 731.17(g),
whenever changes to laws or regulations that make up the approved State
program regarding surface mining reclamation are proposed by the State,
no such change to the laws or regulations shall take effect for
purposes of a State program until approved as an amendment by OSM. In
addition, the Supreme Court ruled that a State regulation enacted
pursuant to the West Virginia Surface Coal Mining and Reclamation Act
(WVSCMRA), W. Va. Code 22A-3-1 to 40 (1993), [now West Virginia Code
22-3-1 to 32 (1994 and Supp.1995)], must be read in a manner consistent
with Federal regulations enacted in accordance with SMCRA, 30 U.S.C.
1201 to 1328 (1986). See Charles Schultz v. Consolidation Coal Company,
197 W.Va. 375, 475 S.E.2d 467 (1996) (Administrative Record Number WV-
1038).
As discussed above, we have previously ruled that West Virginia's
temporary relief provision at W. Va. Code Section 22B-1-7(d) cannot be
approved ``to the extent that the unjust hardship criterion supports
the granting of temporary relief from an order or other decision issued
under Chapter 22, Article 3 of the West Virginia Code'' (63 FR 37775;
July 14, 1998). The effect of that decision is that the unjust hardship
criterion at W. Va. Code 22B-1-7(d) is
[[Page 21912]]
not part of the State's approved regulatory program (63 FR 37775).
Furthermore, as mentioned above, WVDEP has never asked that unjust
hardship be a consideration by the Surface Mine Board in granting a
stay or suspending an order pursuant to W. Va. Code 22B-1-7(d), and it
has informed the Board that it should never be a basis for granting
temporary relief under the approved State program. In addition, the
West Virginia Supreme Court of Appeals has held that ``when there is a
conflict between the Federal and State provisions, the less restrictive
State provision must yield to the more stringent Federal provision. * *
* Canestraro, 374 S.E.2d at 321. In light of our disapproval of the
statutory language that is the subject of this required amendment, and
in light of the principles articulated in Canestraro, and Schultz, we
now believe that the concerns identified in the required amendment at
30 CFR 948.16(nnn) have been satisfied, thereby rendering the required
amendment unnecessary. Therefore, we are removing it. However, to avoid
confusion or misinterpretation of the approved State regulatory
program, we recommend that the statutory provision discussed above be
deleted.
8. Economic Feasibility. 30 CFR 948.16(ooo) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption, to
revise W. Va. Code 22B-1-7(h) by removing reference to Article 3,
Chapter 22.
State Response
In our meeting with the WVDEP on January 15, 2002, the WVDEP stated
that W. Va. Code 22B-1-7(h) applies only to the Environmental Quality
Board, which hears Clean Water Act appeals. In its February 26, 2002,
submittal, WVDEP provided proposed language (at Attachment 3) to delete
the reference to Article 3 Chapter 22 from W. Va. Code 22B-1-7(h). The
language was included in Engrossed Senate Bill 735 and reported out of
the Judiciary Committee on February 27, 2002. Despite WVDEP's good
efforts, the bill did not pass the Legislature in the 2002 legislative
session.
We have previously ruled that West Virginia's administrative
appeals provision at W. Va. Code 22B-1-7(h) could not be approved
``only to the extent that it references Article 3, Chapter 22 of the W.
Va. Code.'' (63 FR 37774, 37775; July 14, 1998). The effect of that
decision is that the reference to Article 3 Chapter 22 at W. Va. Code
22B-1-7(h) is not part of the approved West Virginia program. This
disapproved provision should never be implemented by the State because
the West Virginia Supreme Court of Appeals has held that ``when there
is a conflict between the federal and state provisions, the less
restrictive state provision must yield to the more stringent federal
provision. * * * Canestraro, 374 S.E.2d at, 321. As noted in Finding 7,
the West Virginia Supreme Court of Appeals also held in Schultz that no
change in a State surface mining law or regulation can take effect for
purposes of a State program until approved by OSM, and State surface
mining reclamation regulations must be read in a manner consistent with
Federal regulations enacted in accordance with SMCRA, Schultz, 475
S.E.2d 467. (Administrative Record Number WV-1038). Because we have
previously disapproved the language that is the subject of this
required amendment, and because of the principle articulated in
Canestraro and Schultz, we conclude that the required amendment at 30
CFR 948.16(ooo) has been satisfied. Therefore, we are removing it.
9. Bond Release. 30 CFR 948.16(qqq) provides that West Virginia
must revise CSR 38-2-2.20, or otherwise revise the West Virginia
program to clarify that a bond may not be released where passive
treatment systems are used to achieve compliance with applicable
effluent limitations.
State Response
CSR 38-2-12.2.e was amended to provide as follows.
12.2.e. Notwithstanding any other provisions of this rule, no
bond release or reduction will be granted if, at the time, water
discharged from or affected by the operation requires chemical or
passive treatment in order to comply with applicable effluent
limitations or water quality standards. Measures approved in the
permit and taken during mining and reclamation to prevent the
formation of acid drainage shall not be considered passive
treatment; Provided, That the Director may approve a request for
Phase I but not Phase II or III, release if the applicant
demonstrates to the satisfaction of the Director that either. * * *
CSR 38-2-12.2.e was amended, in effect, by prohibiting bond release
if water discharged from the permit area requires chemical or passive
treatment. In addition, a new sentence is added that clarifies that
measures approved in the permit and taken during mining and reclamation
to prevent the formation of acid drainage shall not be considered
passive treatment.
We find that as amended, the provision satisfies the required
program amendment codified at 30 CFR 948.16(qqq) which can, therefore,
be removed. We also find that the new language which clarifies that
measures approved in the permit and taken during mining and reclamation
to prevent the formation of acid drainage shall not be considered
passive treatment, does not render the West Virginia program less
effective than the Federal regulations. Such measures might include,
for example, selective placement of acid-generating materials in the
backfill, placing limestone or other alkaline-generating materials in
the backfill in close proximity to acid-generating materials, and the
use of underdrains to prevent groundwater from wetting acid-generating
materials. Measures such as these are taken to prevent the formation of
acid discharges, and not to treat such discharges once they are
discovered. Therefore, we find the new provision does not render the
West Virginia program less effective than the Federal regulations
concerning bond release at 30 CFR 800.40, and the provisions concerning
hydrologic balance protection at 30 CFR 816.41 and the backfilling and
grading requirements at 30 CFR 816/817.102(f) and can be approved.
10. Water Supply Replacement Waiver. 30 CFR 948.16(sss) provides
that West Virginia must submit either a proposed amendment or a
description of an amendment to be proposed, together with a timetable
for adoption, to revise CSR 38-2-14.5(h) and W. Va. Code 22-3-24(b) to
clarify that the replacement of water supply can only be waived under
the conditions set forth in the definition of ``Replacement of water
supply,'' paragraph (b), at 30 CFR 701.5.
State Response
In our January 15, 2002, meeting with WVDEP, State officials said
they would reevaluate the Federal language set forth in the definition
of ``Replacement of water supply'' paragraph (b), at 30 CFR 701.5.
Subsequently, in its March 8, 2002, letter, WVDEP stated that it had
reevaluated its water replacement and waiver requirements at W. Va.
Code 22-3-24 and in its rules. WVDEP stated that it plans to propose
changes for the 2003 regular legislative session that would clarify
that replacement of an affected water supply that is needed for the
existing land use or for the post-mining land use cannot be waived.
WVDEP stated that historically, under the State program, replacement
waivers are not sought nor granted for such water supplies. In
addition, WVDEP stated that, until it amends its program explicitly to
be consistent with the
[[Page 21913]]
Federal water replacement requirement, it will only allow water
replacement waivers in accordance with the provisions in the definition
of ``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
W. Va. Code 22-3-24(b) states that ``[a]ny operator shall replace
the water supply of an owner of interest in real property who obtains
all or part of the owner's supply of water for domestic, agricultural,
industrial or other legitimate use from an underground or surface
source where the supply has been affected by contamination, diminution
or interruption proximately caused by the surface-mining operation,
unless waived by the owner.'' CSR 38-2-14.5(h) limits the availability
of a waiver. It provides that ``[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.'' The limitation of maintaining water
quality is not sufficient to be no less effective than the
corresponding Federal requirements.
30 CFR 701.5 defines the term ``Replacement of water supply.'' Part
(b) of the definition states that replacement requirements may be
satisfied by demonstrating that a suitable alternative water source is
available and could feasibly be developed, but only ``[i]f 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.* * *'' Thus, under Federal
regulations, actual replacement of water supply is required unless
consideration is given to effect on premining and postmining land uses.
West Virginia's waiver provision contains no equivalent consideration.
Federal law is therefore more restrictive and the State regulations are
less effective.
We have previously ruled that West Virginia's water replacement
waiver provision could not be approved ``to the extent that* * * [it]
would not be implemented in accordance with the definition of
``Replacement of water supply'' at 30 CFR 701.5.'' (61 FR at 6524,
February 21, 1996). In addition, OSM required that the West Virginia
program be further amended to clarify that under W. Va. Code Section
22-3-24(b) and CSR 38-2-14.5.h, the replacement of water supply can
only be waived under the conditions set forth in the definition of
``Replacement of water supply at 30 CFR 701.5(b). In the February 9,
1999, Federal Register, OSM announced the approval of the State's
definition of replacement of water supply at W.Va. Code 22-3-3(z), but
we required that the State adopt a counterpart to 30 CFR 701.5(b) (64
FR at 6202-6203). As noted above, the WVDEP has committed to allowing
waivers only in a manner consistent with the Federal definition. This
commitment complies with the mandate of the West Virginia Supreme Court
of Appeals, which has held that ``when there is a conflict between the
federal and state provisions, the less restrictive state provision must
yield to the more stringent federal provision* * * Canestraro, 379
S.E.2.d, at 321.
As noted above in Finding 7, the West Virginia Supreme Court of
Appeals has ruled that ``[w]hen a provision of the West Virginia
Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et seq., is
inconsistent with Federal requirements in the Surface Mining Control
and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the State Act must be
read in a way consistent with the Federal Act.'' Canestraro, 374 S.E.2d
at 321 (Administrative Record Number WV-761).
In addition, State rules must be read in a manner consistent with
Federal regulations, Schultz. As noted above in Finding 7, the West
Virginia Supreme Court of Appeals also held in Schultz that no change
in a State surface mining law or regulation can take effect for
purposes of a State program until approved by OSM, and State surface
mining reclamation regulations must be read in a manner consistent with
Federal regulations enacted in accordance with SMCRA, Schultz, 475
S.E.2d 467. (Administrative Record Number WV-1038).
Because of the State's commitment to comply with the more
restrictive Federal waiver requirement, and because of the principles
established in Canestraro and Schultz, we conclude that the required
amendment at 30 CFR 948.16(sss) has been satisfied. Therefore, we are
removing it. We recommend that the provision be included in the program
at some future date to avoid confusion or misinterpretation.
11. Existing Structures and Approximate Original Contour (AOC). 30
CFR 948.16(vvv)(1) provides that West Virginia must amend its program
to be consistent with 30 CFR 701.11(e)(2) by clarifying that the
exemption at CSR 38-2-3.8(c) does not apply to the requirements to
restore the land to AOC.
State Response
This required program amendment should be removed. The State
regulation in subsection 3.8.c. was amended to not apply to new and
existing coal waste facilities and was submitted to the Office of
Surface Mining on March 17, 2000, as a program amendment. A copy of
the revised subsection 3.8.c. is attached and is pending OSM action.
The State saw no need to add language about approximate original
contour to regulation at subsection 3.8(c) since the WV Surface Coal
Mining and Reclamation Act performance standard at Section 22-3-
13(b)(3) is clear about the requirement to restore the approximate
original contour with respect to surface mines.
On August 18, 2000 (65 FR 50413), we approved the State's change
which clarifies that the exemption at CSR 38-2-3.8.c. does not apply to
new and existing coal waste facilities. In that same notice, we revised
30 CFR 948.16(vvv)(1) by deleting the requirement to clarify that the
exemption at CSR 38-2-3.8(c) does not apply to the requirements for new
and existing coal mine waste disposal facilities. However, we continued
to require at revised 30 CFR 948.16(vvv)(1) that the State clarify that
the exemption at CSR 38-2-3.8(c) does not apply to the requirement to
restore the land to approximate original contour (AOC).
In its response quoted above, WVDEP stated that Section 22-3-
13(b)(3) of the West Virginia Surface Coal Mining and Reclamation Act
is clear about the requirement to restore the AOC with respect to
surface mines. W.Va. Code at 22-3-13(b)(3) requires surface mines to be
restored to AOC, except those which receive a variance under W.Va. Code
22-3-13(c) concerning mountaintop removal mining operations, and for
those situations where the overburden is thin and the resulting
material is insufficient to achieve AOC. In addition, W.Va. Code 22-3-
13(d) and (e) provide for variances from AOC for steep slope mining
operations under certain circumstances. Given this clarification, we
are approving the State's response to the required amendment at 30 CFR
948.16(vvv)(1) to the extent that the exemption at CSR 38-2-3.8(c) does
not apply to the requirement to restore the land to AOC. Therefore, to
the extent that CSR 38-2-3.8(c) is limited to existing facilities and
does not apply to the requirement to restore the land to AOC, we find
that the required amendment codified at 30 CFR 948.16(vvv)(1) is
satisfied and can be removed.
12. Certification of Haulroads. 30 CFR 948.16(vvv)(2) provides that
West Virginia must amend CSR 38-2-4.12 to reinstate the following
deleted language:
[[Page 21914]]
``and submitted for approval to the Director as a permit revision.''
State Response
The WVDEP has established guidelines (Series 20 Effective 1-97,
page 22 of the I&E Handbook, Attachment 4) for approval of minor
revisions to the original design. Minor deviations from the approved
plan for haulroads (width, grade, etc.) are permissible as long they
are within the construction tolerance specified in 38-3.35 [38-2-
3.35].
The provision at CSR 38-2-4.12 concerns the certification of
haulroads. However, the procedures that were initially submitted to OSM
only applied to the approval of as-built certifications for drainage
systems. During the January 15, 2002, meeting WVDEP agreed to
reevaluate this issue and, if necessary, amend its policy to make it
applicable to haulroads (Administrative Record Number WV-1271).
On February 26, 2002, WVDEP submitted revised guidelines for the
approval of minor revisions to the original design of haulroads
(Administrative Record Number WV-1276). The guidelines are set forth in
Attachment 4. As noted above, the State clarified that minor deviations
from the approved plan for haulroads are permissible so long as they
are within the construction tolerance limits specified in CSR 38-2-
3.35, not 38-3.35 as quoted above.
Attachment 4 is entitled, ``Minor Revisions Approvable by Field
Level Personnel'' and contains the following language:
Purpose: Establish guidelines for approval of minor adjustments to
original proposals.
Policy/Procedures: Minor revisions to original designs must be
within the construction tolerances specified in 38-2-3.35. If not, a
permit revision is required. The following are examples of minor
revisions that are approvable at the field inspector level.
1. Minor drainage structure configuration changes (i.e., round vs.
square, spillway one one side instead of the other, etc.) as long as
the required sediment storage capacity is maintained. (Approved by
virtue of the inspector signing off on the as-built certification)
2. Minor road width/slope configuration (as long as the width/slope
do not compromise safety considerations). (Approved as an as-built
certification)
3. Additional sediment control capacity (i.e., additional sumps on
roads, pre sumps in front of sediment ponds). (Approved as an as-built
certification)
4. Species substitution on planting plans (i.e., substituting
legume for legume, hardwoods for hardwoods, etc.). Approved by letter
submittal and inspector signs off on it.
5. Minor bench size changes on fills (i.e., wider than twenty (20)
feet. (Approved on the final certification)
6. Outlets/spillways constructed of different material than
originally proposed. (Approved on the as-built certification)
7. Additional rock flumes on backfill areas (letter approval when
constructed).
8. Minor encroachment of the permit boundary (i.e., slips,
shootovers, etc.). These need to be covered with a notice of violation
(NOV) then shown on a progress map or on the final map. The acreage
involved has to be included in the disturbed acreage number on the
Phase I release application, and the bond reduction calculated
accordingly.
Keep in mind that some of these changes need to be delineated on
the ``map of record.'' This can be done by requesting a progress map to
accompany the certification or letter, or at a mid term review, or at
the time of final map submittal (Phase I release).
As described in the July 24, 1996, Federal Register notice (61 FR
38384), we approved West Virginia's haulroad certification
requirements, except to the extent that the Director (now Secretary) is
removed from the responsibility of reviewing permit revisions as
required under 30 CFR 774.11(c). In addition, we required the State to
reinstate the following deleted language at CSR 38-2-4.12, ``and
submitted for approval to the Director as a permit revision.''
CSR 38-2-3.35 provides that all grade measurements and linear
measurements in the State's rules shall be subject to a tolerance of
two (2) percent. All angles in the rules shall be measured from the
horizontal and shall be subject to a tolerance of five (5) percent.
Provided, however, this allowable deviation from the approved plan does
not affect storage capacity and/or performance standards. We announced
our approval of these requirements in the February 9, 1999, Federal
Register (64 FR 6208). The approved tolerances pertain to the amount of
allowed variance between the approved designs in the permit application
and the ``as built'' measurements of those designs.
Only Item (2) of the proposed guidelines described above relates to
haulroads. As noted in Attachment 4, a minor road width/slope
configuration, as long as the width/slope revision is within the
construction tolerance limits specified in CSR 38-2-3.35 and does not
compromise safety considerations, can be approved as an as-built
certification by field personnel. All other as-built haulroad
configurations must be approved by the Secretary as permit revisions.
Neither SMCRA nor the Federal regulations provides for the approval
of as-built certifications that are within the construction tolerance
limits as set forth in CSR 38-2-3.35. However, we find that the
existing State requirements regarding as-built certifications, together
with the proposed State clarification regarding minor changes in the
width and/or slope of haulroads, as described in Item (2) of Attachment
4, appear reasonable and are not inconsistent with SMCRA or the Federal
regulations. Because the State has clarified that only minor deviations
from the approved designs for haulroads are permissible as long as they
are within the construction tolerance limits specified at CSR 38-2-
3.35, and all other as-built haulroad configurations that exceed those
limits require the Secretary's approval as permit revisions, we are
approving the State's proposal and removing the required amendment at
30 CFR 948.16(vvv)(2) which requires that all as-built certifications
for haulroads be submitted and approved as permit revisions. This
approval is limited to minor as-built haulroad certifications as
described herein and does not apply to the other proposed minor
revisions that field personnel may authorize as described in Attachment
4, ``Minor Revisions Approvable by Field Level Personnel,'' Series 20,
page 22 of the Inspection and Enforcement Handbook. The other revisions
mentioned therein do not pertain to this rulemaking.
13. Slurry Impoundments. 30 CFR 948.16(vvv)(3) provides that West
Virginia must amend its program by clarifying that the requirements at
CSR 38-2-5.4(c) also apply to slurry impoundments.
State Response
The WVDEP is proposing a change to subsection 5.4.d.4
(Attachment 5) which clarifies that non-MSHA size coal processing
waste dams and embankments will be certified by a registered
professional engineer as indicated in 30 CFR 780.25.
In the July 24, 1996, Federal Register (61 FR 38384), we found that
the removal of the words, ``which may include slurry impoundments''
from CSR 38-2-5.4.c. made it unclear as to whether slurry impoundments
are subject to the impoundment requirements at CSR 38-2-5.4.c. If CSR
38-2-5.4.c. does not apply to slurry impoundments (which appeared to be
the purpose of the deletion), the provision is rendered less effective
than 30 CFR 816.49 and 817.49.
[[Page 21915]]
The State's existing rules at CSR 38-2-22.4.c. governing small
impoundments state that coal refuse sites which result in impoundments
which are not subject to the Dam Control Act or the Federal Mine Health
and Safety Act shall be designed, constructed, and maintained subject
to the requirements of this subsection and subsections CSR 38-2-5.4 and
22.5.j.6.
By referencing subsection 5.4, the required amendment at 30 CFR
948.16(vvv)(3) appears to be satisfied in so far as it is clear that
all non-MSHA size or small coal refuse impoundments must comply with
the State's impoundment requirements at subsection 5.4. However,
because CSR 38-2-5.4.d allows certain impoundments to be certified by a
registered professional engineer or a licensed land surveyor, we
questioned whether the State's existing requirements were as effective
as the Federal rules. The Federal requirements at 30 CFR
780.25(a)(3)(i) provides that all coal refuse impoundments, regardless
of size, must be certified by a registered professional engineer. In
addition, it was unclear if coal refuse dams and embankments which are
subject to the Dam Control Act or the Federal Mine Health and Safety
Act are subject to the impoundment requirements at CSR 38-2-5.4(c).
On February 26, 2002, WVDEP submitted the proposed revision
described above to its program (Administrative Record Number WV-1276).
Attachment 5 contains a proposed revision to CSR 38-2-5.4.d. According
to the State, this provision is to be amended at subdivision 38-2-
5.4.d.3. by adding the words ``except all coal processing waste dams
and embankments covered by subsection 22.4.c. shall be certified by a
registered professional engineer.'' As amended, CSR 38-2-5.4.d.3. would
read as follows: Design and construction certification of embankment
type sediment control structures may be performed only by a registered
professional engineer or licensed land surveyor experienced in
construction of embankments ``except all coal processing waste dams and
embankments covered by subsection 22.4.c. shall be certified by a
registered professional engineer.''
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
As discussed above, CSR 38-2-22.4.c. clarifies that CSR 38-2-5.4
applies to small, non-MSHA size coal refuse dams and embankments. In
addition, the proposed revision at CSR 38-2-5.4.d.3 clarifies that all
small coal refuse dams and embankments must be certified by a
registered professional engineer. Furthermore, CSR 38-2-5.4.d.4.
provides that the design and construction of coal refuse impoundments
meeting the MSHA size or other requirements at 30 CFR 77.216(a) may
only be performed by a registered professional engineer. Given that
there are design and construction certification requirements for both
MSHA and non-MSHA size coal refuse impoundments at CSR 38-2-5.4.d, the
structure of this section implies that all coal refuse impoundments
must comply with the impoundment requirements at CSR 38-2-5.4.c. In
addition, CSR 38-2-22.1 requires that all coal slurry impoundments,
including MSHA size impoundments, must comply with all applicable
requirements of the State program. These would include those
requirements contained in CSR 38-2-5.4. In accordance with 30 CFR
780.25(a)(3)(i) and 784.16(a)(3)(i), we are approving the proposed
revision at CSR 38-2-5.4.d.3. which provides that all coal processing
waste dams and embankments covered by subsection 22.4.c. shall be
certified by a registered professional engineer. Furthermore, given
that the State has clarified that slurry impoundments, regardless of
size, are subject to the requirements of CSR 38-2-5.4.c., we find that
the required amendment at 30 CFR 948.16(vvv)(3) is satisfied and can be
removed.
Upon promulgation of a final rule by the State, WVDEP will be
required to provide a copy of it to OSM. OSM will review it to ensure
that the language contained therein is identical to that language which
is being approved today. Any substantive differences in the language
will be subject to further public review and approval by us as a
program amendment.
14. Coal Refuse Disposal in the Backfill. 30 CFR 948.15(vvv)(4)
provides that West Virginia must amend CSR 38-2-14.15(m), or otherwise
amend its program to require compliance with 30 CFR 816/817.81(b), (d),
and (e) regarding coal refuse disposal, foundation investigations and
emergency procedures and to clarify that where the coal processing
waste proposed to be placed in the backfill contains acid-or toxic-
producing materials, such material must not be buried or stored in
proximity to any drainage course such as springs and seeps, must be
protected from groundwater by the appropriate use of rock drains under
the backfill and along the highwall, and be protected from water
infiltration into the backfill by the use of appropriate methods such
as diversion drains for surface runoff or encapsulation with clay or
other material of low permeability.
State Response
This required program amendment should be removed. Coal refuse
placed in the backfill pursuant to subsection 14.15(m) is placed
into the mine workings or excavation areas. This placement, when
done in accordance with the State's backfilling and grading,
stability and toxic material handling plan requirements, is
consistent with the provisions of 30 CFR 816.81 and 817.81.
In our January 15, 2002, meeting with WVDEP (Administrative Record
Number WV-1271), State officials agreed to clarify how the State's
existing rules require that coal processing waste outside the permit
area must be disposed of in accordance with the standards at 30 CFR
816/817.81(b). In addition, WVDEP would clarify how its rules require
sufficient foundation investigations as required by 30 CFR 816/
817.81(d). Further, WVDEP agreed to provide us with an explanation of
how its other program requirements regarding underdrains, diversions,
and toxic handling plans apply to the disposal of coal refuse as
allowed by CSR 38-2-14.14.m. Finally, they noted that the State's
emergency procedures at CSR 38-2-14.15.m.2. are no less effective than
the Federal requirements at 30 CFR 816/817.81(e).
Material from Outside the Permit Area: In its February 26, 2002,
response State officials assured us that WVDEP requires the permittee
to identify the source of the coal refuse to be disposed of in the
backfill in addition to the laboratory testing. Any changes in the
source of the coal refuse require the approval of the Secretary. The
State noted that its rules at CSR 38-2-14.15.m.2. clearly require that
prior approval of the Secretary is necessary
[[Page 21916]]
before placing coal refuse material in the backfill, regardless of
where the material originates. This assurance from the State and the
existing requirements at CSR 38-2-14.15.m.2. ensure that, as required
by 30 CFR 816/817.81(b), coal refuse from activities located outside
the permit area must be approved by the Secretary, and the approval
must be based on a showing that the disposal will be in accordance with
the standards set forth in CSR 38-2-14.15.m.
Foundation Investigations: According to State officials, the part
of the required program amendment relating to foundation investigations
is satisfied due to the requirements at CSR 38-2-14.15.a. and 14.15.m.
Those requirements provide that the backfill must be designed and
certified by a registered professional engineer so that a minimum long-
term static safety factor of 1.3 is achieved for the final graded
slope. All stability analyses include properties of the material to be
placed, properties of the foundation (whether on solid bench or
backfill) and include site conditions that will affect stability. The
State requirements at CSR 38-2-14.15.a. and 14.15.m. ensure that
sufficient foundation investigations, including any necessary
laboratory testing of foundation material, will be performed prior to
placing any coal refuse in a backfill as required by 30 CFR 816/
817.81(d).
Acid Material Handling Plan: In its February 26, 2002, response
WVDEP clarified that coal processing waste cannot be placed in the
backfill pursuant to CSR 38-2-14.15.m., unless it is non-acid and/or
non-toxic producing or is rendered non-acid and/or non-toxic producing
pursuant to subsection 14.15.m.2.
CSR 38-2-14.15.m.2. provides the following:
The coal processing waste will not be placed in the backfill
unless it has been demonstrated to the satisfaction of the Secretary
that:
The coal processing waste to be placed based upon laboratory
testing to be non-toxic and/or non-acid producing; or
An adequate handling plan including alkaline additives has been
developed and the material after alkaline addition is non-toxic and/
or non-acid producing.
WVDEP officials stated that the rules at subsection 14.6. apply to
the handling of all acid producing material. CSR 38-2-14.6.a. requires
that all acid-forming or toxic-forming material be handled and treated
in accordance with the approved toxic handling plan. According to State
officials, all coal refuse must be rendered non-toxic or non-acid
producing before it is placed in the backfill. Furthermore, any
alkaline addition that may be required must occur prior to placement in
the backfill.
In addition, CSR 38-2-14.6.b. provides that, ``[a]cid-forming or
toxic-forming material shall not be buried or stored in proximity to a
drainage course or groundwater system.'' Therefore, when a toxic
handling plan for the disposal of acid-forming or toxic-forming
materials is submitted under CSR 38-2-14.15.m.2.B., the plan must
identify whether or not a drainage course or groundwater system exists
in proximity to the burial site. If such a drainage course or
groundwater system exists in proximity to the burial site, the
Secretary must disapprove the burial of the acid-producing or toxic-
producing material at the proposed site. This requirement ensures that
where the coal processing waste proposed to be placed in the backfill
contains acid- or toxic-producing materials, such materials cannot be
buried or stored in proximity to any drainage course such as springs
and seeps as required by 30 CFR 816/817.83(a) and 30 CFR 816/
817.102(e).
In addition, we note that CSR 38-2-14.16.g. also provides that the
disposal of coal processing waste and underground development waste in
the mined out area of previously mined areas must be done in accordance
with Section 22, except that a long-term static safety factor of 1.3
must be achieved. Subsection 14.16.g. ensures that coal refuse placed
in the backfill on previously mined areas is protected from groundwater
by the appropriate use of rock drains under the backfill and along the
highwall and from water infiltration into the backfill by the use of
appropriate methods such as diversion drains for surface runoff or
encapsulation with clay or other material of low permeability.
Subsection 14.16.g. contains requirements regarding the disposal of
coal processing waste in the backfill that are no less effective than
the Federal requirements at 30 CFR 816/817.83(a) and 30 CFR 816/
817.102(e)
Emergency Procedures: 30 CSR 38-2-14.15.m.2. provides that a
qualified registered professional engineer, experienced in the design
of similar earth and waste structures, shall certify the design of the
disposal facility. If any examination or inspection discloses that a
potential hazard exists, the Secretary shall be informed promptly of
the finding and of the emergency procedures formulated for public
protection and remedial action. If adequate procedures cannot be
formulated or implemented, the Secretary shall be notified immediately,
and the Secretary will then notify the appropriate agencies that other
emergency procedures are required to protect the public. Subsection
14.15.m.2. contains emergency procedures that are substantively
identical to the Federal requirements at 30 CFR 816/817.81(e).
As discussed above, we find that CSR 38-2-14.15.m.2. provides that
the disposal of coal processing waste outside the permit area must be
disposed of in accordance with the standards at CSR 38-2-14.15.m., as
required by 30 CFR 816/817.81(b). The State's backfilling requirements
at subsections 14.15.a. and 14.15.m. ensure that sufficient foundation
investigations, including any necessary laboratory testing of
foundation material, will be performed prior to placing any coal refuse
in a backfill as required by 30 CFR 816/817.81(d). The State program
provisions at CSR 38-2-14.15.m.2., CSR 38-2-14.6. and CSR 38-2-14.16.g.
prohibit the burial or storage of acid-forming or toxic-forming
materials in the backfill in proximity to a drainage course or
groundwater system and ensure the protection of acid- or toxic-forming
material from groundwater or from infiltration into the backfill as
required by 30 CFR 816/817.83(a) and 30 CFR 816/817.102(e). Finally,
CSR 38-2-14.15.m.2. contains emergency procedures that are no less
effective than the Federal emergency procedures at 30 CFR 816/
817.81(e). Therefore, we find that the required program amendment
codified at 30 CFR 948.16(vvv)(4) relating to the disposal of coal
refuse in the backfill has been satisfied and can be removed.
15. Subsidence Control Plan. 30 CFR 948.16(zzz) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption to
revise 38-2-3.12.a.1., or otherwise amend the West Virginia program to
require that the map of all lands, structures, and drinking, domestic
and residential water supplies which may be materially damaged by
subsidence show the type and location of all such lands, structures,
and drinking, domestic and residential water supplies within the permit
and adjacent areas, and to require that the permit application include
a narrative indicating whether subsidence, if it occurred, could cause
material damage to or diminish the value or reasonably foreseeable use
of such structures or renewable resource lands or could contaminate,
diminish, or interrupt drinking, or residential water supplies.
[[Page 21917]]
State Response
In its May 2, 2001, submittal, the State amended CSR 38-2-3.12.a.1.
concerning subsidence control plans by adding the words, ``a narrative
indicating'' to the survey and map requirements of this subsection. As
amended, this provision requires a survey, map, and a narrative
indicating whether or not subsidence could cause material damage to the
identified structures and water supplies. We find that the addition of
the words ``a narrative indicating'' satisfies the narrative
requirement codified at 30 CFR 948.16(zzz).
In our January 15, 2002, meeting with WVDEP, State officials agreed
to modify its permit application to ensure that the identification of
structures would also indicate the type of structures being identified.
In its February 26, 2002, letter, WVDEP submitted (at Attachment 6) a
portion of its permit application that it had modified to require the
identification of the location and type of structures, streams,
renewable resource lands and water works. Therefore, the applicant must
identify both the location and type of structures within a 30-degree
angle of draw. With that submittal, the State has satisfied the
requirement that the map show the location and type of structures that
could be materially damaged by subsidence. We find that the revised
permit application together with revised CSR 38-2-3.12.a.1. satisfy the
requirements at 30 CFR 948.16(zzz) and can be approved. Therefore, 30
CFR 948.16(zzz) can be removed.
16. Water Supply Survey. 30 CFR 948.16(aaaa) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption to
revise CSR 38-2-3.12.a.2., or otherwise amend the West Virginia program
to require that the water supply survey required by CSR 38-2-3.12.a.2.
include all drinking, domestic, and residential water supplies within
the permit area and adjacent area, without limitation by an angle of
draw, that could be contaminated, diminished, or interrupted by
subsidence.
State Response
In our January 15, 2002, meeting, WVDEP agreed to amend its
program. By letter dated February 26, 2002, WVDEP sent us draft
language (at Attachment 7) that it had submitted to the State
Legislature for approval. The proposed amendment clarifies that the
State reserves the right to request surveys within a larger area based
on evaluation of the application. As submitted, the revised language at
CSR 38-2-3.12.a.1. provides that the applicant for an underground coal
mining permit must provide a survey on a map that identifies
structures, perennial and intermittent streams or renewable resource
lands and a narrative indicating whether or not subsidence could cause
material damage or diminution of value or use of such structures or
renewable resource lands both on the permit and adjacent areas within
an angle of draw of at least 30 degrees ``unless a greater area is
specified by the Secretary.'' In addition, the State has revised CSR
38-2-3.12.a.2. to also require a survey of the quality and quantity of
water supplies that could be contaminated, diminished or interrupted by
subsidence ``within the permit area and adjacent areas.''
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
We find that the emergency rules approved by West Virginia satisfy
the requirements codified at 30 CFR 948.16(aaaa) and can be approved.
Therefore, 30 CFR 948.16(aaaa) can be removed. Upon promulgation of a
final rule by the State, WVDEP will be required to provide us with a
copy. We will review it to ensure that the language contained therein
is identical to that language which is being approved today. Any
substantive differences in the language will be subject to further
public review and approval by us.
17. Presubsidence Survey. 30 CFR 948.16(bbbb) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption to
revise 38-2-3.12.a.2., or otherwise amend the West Virginia program to
require that the permit applicant pay for any technical assessment or
engineering evaluation used to determine the premining quality of
drinking, domestic or residential water supplies, and to require that
the applicant provide copies of any technical assessment or engineering
evaluation to the property owner and to the regulatory authority.
State Response
In our January 15, 2002, meeting, WVDEP agreed to amend its program
to clarify that the permit applicant must pay for any surveys,
including technical assessments or engineering evaluations, conducted
to determine the premining quality and quantity of water supplies and
to require that copies of any technical assessments or engineering
evaluations prepared as part of the survey be provided to the property
owner and the WVDEP. In its February 26, 2002, letter, WVDEP submitted
language at Attachment 7 to amend CSR 38-2-3.12.a.2.B. to address this
issue. As amended, CSR 38-2-3.12.a.2.B. provides that ``at the cost of
the applicant,'' a written report of the survey ``containing any
technical assessments and engineering evaluation used in the survey''
shall be prepared and signed by the person or persons who conducted the
survey. The provision also provides that copies of the report shall be
provided to the property owner and to the Secretary
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
We find that, to the extent that CSR 38-2-3.12.a.2.B. requires the
permit applicant to pay for the actual technical assessments or
engineering evaluations, these amendments satisfy the required
amendment codified at 30 CFR
[[Page 21918]]
948.16(bbbb) and can be approved. Therefore, 30 CFR 948.16(bbbb) can be
removed. Upon promulgation of a final rule by the State, WVDEP will be
required to provide us with a copy. We will review it to ensure that
the language contained therein is identical to that language which is
being approved today. Any substantive differences in the language will
be subject to further public review and approval by us.
18. Extension of the 90-Day Abatement Period. 30 CFR 948.16(ffff)
provides that West Virginia must amend CSR 38-2-16.2.c.4. or otherwise
amend the West Virginia program to be no less effective than the
Federal regulations at 30 CFR 817.121(c)(5), which provide that an
extension of the 90-day abatement period may be granted for one of only
three reasons: that subsidence is not complete; that not all subsidence
related material damage has occurred; or that not all reasonably
anticipated changes have occurred affecting the protected water supply.
State Response:
In its program amendment submittal dated May 2, 2001
(Administrative Record Number WV-1209), the State amended CSR 38-2-
16.2.c.4 regarding bonding for subsidence damage. CSR 38-2-16.2.c.4 has
been revised in pertinent part as follows.
The director may extend the ninety (90) day abatement period but
such extension shall not exceed one (1) year from the date of the
notice. Provided, however, the permittee demonstrates in writing,
and the director concurs that subsidence is not complete, that not
all probable subsidence related material [damage] has occurred to
lands or structures; or that not all reasonably anticipated changes
have occurred affecting the water supply, and that it would be
unreasonable to complete repairs or replacement within the ninety
(90) day abatement period. If extended beyond ninety (90) days, as
part of the remedial measures, the permittee shall post an escrow
bond to cover the estimated costs of repairs to land or structures,
or the estimated cost to replace water supply.
As discussed in the February 9, 1999, Federal Register notice, the
State's rule at subsection 16.2.c.4. provided for an extension to the
90-day abatement period (64 FR 6212-6213). However, it allowed an
extension if the permittee demonstrates that it would be unreasonable
to complete repairs within the 90-day abatement period. Because Federal
rules limit the circumstances under which an extension to the 90-day
abatement period can be granted, it appeared that operators in West
Virginia could get extensions to the abatement period for additional
reasons.
The required program amendment codified at 30 CFR 948.16(ffff)
requires the State to amend the West Virginia program at CSR 38-2-
16.2.c.4. to be no less effective than the Federal regulations at 30
CFR 817.121(c)(5), which provide that an extension of the 90-day
abatement period may be granted for one of only three reasons: that
subsidence is not complete; that not all subsidence-related material
damage has occurred; or that not all reasonably anticipated changes
have occurred affecting the protected water supply. We find that the
State's amendment to CSR 38-2-16.2.c.4., as quoted above, provides for
extensions to the 90-day abatement period that are no less effective
than those set forth in 30 CFR 817.121(c)(5). Therefore, the required
program amendment at 30 CFR 948.16(ffff) has been satisfied, and it can
be removed. We are approving this revision with the understanding that
the State will revise subsection 16.2.c.4. and insert the word
``damage'' after the words ``subsidence-related material'' in the third
sentence to correct a typographical error.
19. Bonding for Water Supply Replacement. 30 CFR 948.16(gggg)
provides that West Virginia must amend CSR 38-2-16.2.c.4, or otherwise
amend the West Virginia program to be no less effective than the
Federal regulations at 30 CFR 817.121(c)(5) by requiring additional
bond whenever protected water supplies are contaminated, diminished, or
interrupted by underground mining operations conducted after October
24, 1992. The amount of the additional bond must be adequate to cover
the estimated cost of replacing the affected water supply.
As discussed in the February 9, 1999, Federal Register, 30 CFR
817.121(c)(5) requires that the permittee post additional bond whenever
protected water supplies contaminated, diminished or interrupted by
underground mining activities conducted after October 24, 1992 are not
replaced within a specified time (64 FR 6212-6213). However, the State
rule limited this requirement to water supplies that are affected by
subsidence whereas the Federal rule applies this requirement to all
water supplies affected by underground mining operations in general.
State response
In its February 26, 2002, submission, WVDEP officials stated that
additional bond would be required whenever a protected water supply is
contaminated, diminished, or interrupted by underground mining, and the
amount of bond to be posted would be based on the estimated cost of
replacing the water supply (Administrative Record No. WV-1276).
However, for clarification, WVDEP proposed to amend CSR 38-2-16.2.c.4.
to read as follows:
16.2.c.4. Bonding for Subsidence Damage: The Secretary shall
issue a notice to the permittee when subsidence related material
damage has occurred to lands, structures, or when contamination,
diminution or interruption occurs to a domestic or residential water
supply, and that the permittee has ninety (90) days from the date of
notice to complete repairs or replacement. The Secretary may extend
the ninety (90) day abatement period but such extension shall not
exceed one (1) year from the date of the notice. Provided, however,
the permittee demonstrates in writing, and the Secretary concurs
that subsidence is not complete, that not all probable subsidence
related material [material damage] has occurred to lands or
structures; or that not all reasonably anticipated changes have
occurred affecting the water supply, and that it would be
unreasonable to complete repairs or replacement within the ninety
(90) day abatement period. If extended beyond ninety (90) days, as
part of the remedial measures, the permittee shall post an escrow
bond to cover the estimated costs of repairs to land or structures,
or the estimated cost to replace water supply.
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
As proposed, the emergency rules at subsection 16.24.c.4. require
additional bond whenever domestic or residential water supplies are
contaminated, diminished, or interrupted by underground mining
operations, not just by subsidence. In addition, the amount of the
additional bond must be adequate to cover the estimated cost of
replacing the affected water supply. Therefore, we find that proposed
30 CSR 38-2-16.24.c.4. is no less effective than the Federal
requirements at 30 CFR
[[Page 21919]]
817.125(c)(5). The proposed revisions satisfy the required amendment at
30 CFR 948.16(gggg), which we are removing. Upon promulgation of a
final rule by the State, WVDEP will be required to provide a copy to
us. We will review it to ensure that it is substantively identical to
the language being approved today. Any substantive differences in the
language will be subject to further public review and approval by us.
We are approving this revision with the understanding that the State
will revise subsection 16.2.c.4. to replace the comma between ``lands''
and ``structures'' in the first sentence with ``or'' and to correct the
spelling of the word ``material'' and insert the word ``damage'' after
the words ``subsidence-related material'' in the third sentence as
shown above.
20. Timetable for Posting Bond for Subsidence-Related Material
Damage and Damaged Water Supplies. 30 CFR 948.16(hhhh) provides that
West Virginia must submit either a proposed amendment or a description
of an amendment to be proposed, together with a timetable for adoption
to amend CSR 38-2-16.2.c.4., or to otherwise amend the West Virginia
program, to be no less effective than the Federal regulations at 30 CFR
817.121(c)(5), by requiring that the 90-day period before which
additional bond must be posted begin to run from the date of occurrence
of subsidence-related material damage.
State Response
In a program amendment submittal dated May 2, 2001 (Administrative
Record Number WV-1209), the State amended CSR 38-2-16.2.c.4. to read as
follows:
16.2.c.4. Bonding for Subsidence Damage: The director shall
issue a notice to the permittee that subsidence related material
damage has occurred to lands, structures, or water supply, and that
the permittee has ninety (90) days from the date of notice to
complete repairs or replacement. The director may extend the ninety
(90) day abatement period but such extension shall not exceed one
(1) year from the date of the notice. Provided, however, the
permittee demonstrates in writing, and the director concurs that
subsidence is not complete, that not all probable subsidence related
material [damage] has occurred to lands or structures; or that not
all reasonably anticipated changes have occurred affecting the water
supply, and that it would be unreasonable to complete repairs or
replacement within the ninety (90) day abatement period. If extended
beyond ninety (90) days, as part of the remedial measures, the
permittee shall post an escrow bond to cover the estimated costs of
repairs to land or structures, or the estimated cost to replace
water supply.
On February 26, 2002, WVDEP proposed to further amend CSR 38-2-
16.2.c.4. by (1) replacing ``director'' with ``Secretary,'' (2)
replacing ``that'' with ``when'' in the first sentence immediately
after the word ``permittee,'' and (3) adding the words ``when
contamination, diminution or interruption occurs to a domestic or
residential'' before ``water supply'' in the first sentence. As
amended, CSR 38-2-16.2.c.4. provides that the Secretary shall issue a
notice to the permittee when subsidence-related material damage has
occurred to lands [or] structures, or when contamination, diminution or
interruption occurs to a domestic or residential water supply, and that
the permittee has ninety (90) days from the date of notice to complete
repairs or replacement.
As discussed in the February 9, 1999, Federal Register, CSR 38-2-
16.2.c.4. originally differed from its Federal counterpart at 30 CFR
817.121(c)(5) in that the State rule provided that the 90-day period
during which no bond need be posted began with the issuance of a notice
of violation to the permittee, rather than with the date of occurrence
of damage (64 FR 6212-6213). As amended, the 90-day grace period in the
State rule continues to commence upon issuance of a notice (although
the notice is no longer a notice of violation), not the date of
occurrence of the damage. For the reasons discussed below, we no longer
believe that the State must amend its rule to provide that the grace
period begins on the date of occurrence of the damage.
The preamble to the Federal rule contains the following explanation
of its basis and intent:
The current rules at 30 CFR Part 800 already require the
permittee to adjust the amount of the bond when the costs of future
reclamation increase or when a reclamation obligation is
established; for example, when material damage from subsidence
occurs. The final rule is intended to avoid incomplete reclamation
by clarifying the application to actual subsidence damage of the
requirement in 30 CFR 800.15(a) that the regulatory authority
specify a period of time or a set schedule to increase the amount of
bond when the cost of reclamation changes. Thus, this provision
assures that funds are available in a timely fashion to cover the
cost of repairs in case of default by the permittee and to encourage
prompt repair through the use of a grace period.
62 FR 16742, col. 1, March 31, 1995.
While the Federal rule includes no provision for notice to the
permittee, we find that the notice provision is both equitable and a
practical means of implementing this requirement. The preamble quoted
above indicates that we did not intend for the rule to apply before a
reclamation obligation is established, which often requires some
investigation. Furthermore, exact dates that damage occurred may be
unknown or difficult to establish, particularly for damage to land and
damage that occurs in a gradual fashion. The cause of a water supply
loss can be extremely difficult to ascertain, especially when the loss
occurs near a mine during adverse climatic conditions. Like the Federal
rule, the State rule establishes a deadline for posting additional bond
and a 90-day grace period to encourage prompt repair or replacement.
The State rule requires issuance of notice to a permittee ``when''
damage occurs, which we interpret as obligating the State to (1)
conduct prompt investigations upon receiving a damage complaint and (2)
issue a notice as soon as the investigation is completed. The permittee
would be required to post the additional bond upon notification by the
State if the damage cannot be corrected within 90 days. In addition,
West Virginia has an alternative bonding system approved under 30 CFR
800.11(e), which means that any reclamation obligations not covered by
a permittee's site-specific bond are the responsibility of the Special
Reclamation Fund. Therefore, we find that the State rule is no less
effective than the Federal rule, and that it satisfies the requirements
of 30 CFR 948.16(hhhh), which we are removing.
The State submitted the proposed rule changes to the Legislature in
February 2002. However, because of a procedural error, the Legislature
did not adopt the revised language. To correct this oversight, on April
19, 2002, WVDEP filed these changes with the Secretary of State as
emergency rules. According to State law, emergency rules can remain in
effect for not more than 15 months. Final legislative rules are to be
adopted by the State during a special legislative session or during the
regular 2003 legislative session. We will review the emergency and
final rules adopted by the State to ensure that the language of those
rules is substantively identical to the language that we are approving
today, with the exception of the correction of typographical and
grammatical errors such as the two noted in Finding 19. Any substantive
differences in the language are subject to further public review as a
program amendment under 30 CFR 732.17.
21. Recreational Facilities Use. 30 CFR 948.16(iiii) provides that
West Virginia must submit either a proposed amendment or a description
of an amendment to be proposed, together with a timetable for adoption,
to:
Amend the term ``recreational uses'' at W. Va. Code 22-3-13(c)(3)
to mean
[[Page 21920]]
``recreational facilities use'' at SMCRA section 515(c)(3).
State Response
In our January 15, 2002, meeting with the WVDEP, WVDEP asserted
that when the West Virginia law and rules are read together, they are
no less stringent than SMCRA at section 515(c)(3). In addition, by
letter dated February 26, 2002, WVDEP stated that neither State code
nor State rules define the term ``public facility including
recreational land use.'' Furthermore, WVDEP provided the following
policy statement to address this required amendment.
It is the state position that the term ``public facility
including recreational land use,'' implies structures or other
significant developments that the public is able to use, or that
confer some type of public benefit. Depending upon individual
circumstances, this term may include schools, hospitals, airports,
reservoirs, museums, and developed recreational sites such as picnic
areas, campgrounds, ballfields, tennis courts, fishing ponds,
equestrian and off-road vehicle trails, and amusement areas,
together with any necessary supporting infrastructure such as
parking lots and rest facilities. In general, those sites with a
public or public facility postmining land use will provide the
public with access as a matter of right on a non-profit basis.
Facilities that meet a public need, like water supply reservoirs and
publicly owned prisons, and facilities that provide a benefit, like
flood control structures and institutions of higher education, also
qualify, even if they are not readily accessible to all members of
the public or completely non-profit.
We find that the state policy quoted above renders the term
``recreational uses'' at W. Va. Code 22-3-13(c)(3) will always include
facilities. Therefore, that term is no less stringent than the term
``recreational facilities use'' at SMCRA section 515(c)(3) and can be
approved. For this reason, we find that the required amendment codified
at 30 CFR 948.16(iiii) is satisfied and can be deleted.
22. Forfeiture of Bonds. 30 CFR 948.16 (jjjj) provides that West
Virginia must remove the words ``other responsible party'' at CSR 38-2-
12.4.e.
State Response
In the program amendment submittal dated May 2, 2001, the State
revised CSR 38-2-12.4.e. by deleting the words, ``or other responsible
party.'' As amended, this provision is as follows:
12.4.e. The operator or permittee shall be liable for all costs
in excess of the amount forfeited. The Director may commence civil,
criminal or other appropriate action to collect such costs.
We find that the deletion of the words ``or other responsible
party'' satisfies the required program amendment codified at 30 CFR
948.16(jjjj) and can be approved. In addition, we are removing the
required program amendment codified at 30 CFR 948.16(jjjj).
23. Preblast Survey Requirements. 30 CFR 948.16(kkkk) provides that
West Virginia must submit either a proposed amendment or a description
of an amendment to be proposed together with a timetable for adoption,
to remove the words ``upon request'' at W. VA. Code 22-3-13a(g), or
otherwise amend its program to require that a copy of the pre-blast
survey be provided to the owner and/or occupant even if the owner or
occupant does not specifically request a copy.
State Response
In the amendment submitted by letter dated November 28, 2001,
concerning blasting, the State amended the W. Va. Code at 22-3-13a(g)
by revising language concerning the availability of the preblast
survey. As amended, the office of explosives and blasting shall provide
a copy of the preblast survey to the owner or occupant. Prior to this
amendment, the office was only required to notify the owner or occupant
of the location and availability of a copy of the preblast survey.
As amended, W. Va. Code 22-3-13a(g) is rendered consistent with 30
CFR 817.62(d) which requires that a copy of the preblast survey be
provided to the person who requested the survey. Therefore, the
amendment can be approved. This amendment satisfies the required
program amendment codified at 30 CFR 948.16(kkkk) which can, therefore,
be removed.
24. Preblast Survey Requirements. 30 CFR 948.16(llll) provides that
West Virginia must submit either a proposed amendment or a description
of an amendment to be proposed, together with a timetable for adoption,
to remove the phrase ``or the surface impacts of the underground mining
methods'' from 22-3-13a(j)(2), or otherwise amend its program to
clarify that the surface blasting impacts of underground mining
operations are subject to the requirements of 22-3-13a.
State Response
In the amendment submitted by letter dated November 28, 2001,
concerning blasting, the State amended W. Va. Code 22-3-13a(j) by
revising language concerning applicability of section W. Va. Code 22-3-
13a. Among its changes to this section, the State deleted the phrase
``or the surface impacts of the underground mining methods.'' As
amended, section 22-3-13a(j) provides that the provisions of section
22-3-13a do not apply to the extraction of minerals by underground
mining methods.
We find that this amendment has removed the offending language and
satisfies the required program amendment codified at 30 CFR
948.16(llll). Therefore, we are approving the amendment and deleting
the required amendment at 30 CFR 948.16(llll).
25. Blasting Requirements. 30 CFR 948.16(mmmm) provides that West
Virginia must submit either a proposed amendment or a description of an
amendment to be proposed, together with a timetable for adoption, to
remove the phrase ``of overburden and coal'' from W.Va. Code 22-3-
30a(a), or to otherwise clarify that its general surface coal mining
blasting laws and regulations apply to all blasting at surface coal
mining and reclamation operations and surface blasting activities
incident to underground coal mining, including, but not limited to,
initial rounds of slopes and shafts.
State Response
In the amendment submitted by letter dated November 28, 2001,
concerning blasting, the State amended W. Va. Code 22-3-30a(a) by
deleting the words ``of overburden and coal.'' As amended, W. Va. Code
22-3-30a(a) provides that blasting shall be conducted in accordance
with the rules and laws established to regulate blasting.
We find that this revision has removed the offending language and
satisfies the required program amendment codified at 30 CFR
948.16(mmmm). Therefore, we are approving the amendment and deleting
the required amendment at 30 CFR 948.16(mmmm).
26. Removal of Abandoned Coal Refuse. 30 CFR 948.16(nnnn) provides
that West Virginia must submit either a proposed amendment or a
description of an amendment to be proposed, together with a timetable
for adoption to either delete CSR 38-2-3.14 or revise CSR 38-2-3.14 to
clearly specify that its provisions apply only to activities that do
not qualify as surface coal mining operations as that term is defined
in 30 CFR 700.5; i.e., that subsection 3.14 does not apply to either
the removal of abandoned mine waste piles that, on average, meet the
definition of coal or to the on-site reprocessing of coal mine waste
piles. If the State chooses the second option it must submit a sampling
protocol that will be used to determine whether the refuse piles meet
the definition of coal. The protocol must be designed to ensure that no
activities meeting the definition of surface coal
[[Page 21921]]
mining operations escape regulation under the West Virginia Surface
Coal Mining and Reclamation Act.
State Response
In its program amendment submittal dated May 2, 2001, the State
amended CSR 38-2-3.14.a., regarding the removal of abandoned coal
refuse piles, by changing the proviso concerning the minimum BTU value
standard of refuse material to be classified as coal. As amended,
subsection 3.14.a. now provides for:
``* * * the removal of abandoned coal processing waste piles;
provided that, if the average quality of the refuse material meets
the minimum BTU value standards to be classified as coal, as set
forth in ASTM standard D 388-99, and if not AML eligible, a permit
application which meets all applicable requirements of this rule
shall be required.''
Prior to this amendment, the words ``and if not AML eligible'' did
not appear in subsection 3.14.a, and the subsection did not require the
submittal of a permit application if the refuse material met the
minimum BTU value to be classified as coal.
As discussed in the May 5, 2000, Federal Register, we approved
subsection 3.14 to the extent that it would apply to the removal of
abandoned coal mine refuse pile where, on average, the material to be
removed did not meet the definition of coal at 30 CFR 700.5 (65 FR
26131). In addition we did not approve subsection 3.14 to the extent
that it could be interpreted as applying to the on-site reprocessing of
abandoned coal refuse piles. However, we noted that the removal of
abandoned coal processing piles may qualify for the government-financed
construction requirement under section 528(2) of SMCRA. CSR 38-2-3.31
is the approved State regulation governing government-financed
construction within the State. We amended the Federal definition of
government-financed construction on February 12, 1999, to provide that
government funding of less than 50 percent of a project's cost may
qualify if the construction is undertaken as an approved abandoned mine
reclamation project under Title IV of SMRCA (64 FR 7469-7483). However,
because the West Virginia program lacks counterparts to the revised
Federal definition of ``government-financed construction,'' we
concluded that the exemption is not available to West Virginia projects
with less than 50 percent government financing.
In our January 15, 2002, meeting, we stated that because the State
chose to clarify that subsection 3.14 does not apply to activities that
qualify as surface coal mining operations as the term is defined at 30
CFR 700.5, it needed to submit a sampling protocol to determine when a
coal refuse pile would meet the definition of coal (Administrative
Record Number WV-1271). The sampling protocol must be designed to
ensure that no activities meeting the definition of surface coal mining
operations escape regulation under the State counterpart to SMCRA and
the Federal regulations. WVDEP also needed to select and submit the BTU
standard that it would use to determine the difference between coal and
non-coal. The ASTM criteria should be used to determine the BTU value
of a sample. WVDEP agreed to provide us a sampling protocol and to set
the BTU value for coal to ensure that these projects are not surface
coal mining operations. The WVDEP acknowledged that since there is only
bituminous coal in West Virginia, it would use a BTU value for
bituminous coal from the ASTM standard.
On February 26, 2002, WVDEP sent us another program submission
(Administrative Record Number WV-1276). In that submission, WVDEP was
noted that:
WVDEP included the words ``and if not AML eligible'' to allow
for the removal of abandoned coal refuse piles under AML enhancement
requirements. The State has developed a sampling protocol and set
the BTU value for coal (Attachment 8).
Attachment 8 contains a draft policy entitled, ``Removal of
Abandoned Coal Refuse Piles'' and provides the following:
The Secretary may issue a reclamation contract, in accordance
with 38-2-3.14, solely for the removal of existing abandoned coal
processing waste piles; only if the average quality of the refuse
material does not meet the minimum BTU value standards to be
classified as coal and/or has a percent ash value of greater than
50, as set forth in ASTM standard D 388-99.
Refuse material that does not meet minimum BTU value standards
to be classified as coal means; a pile of waste products of coal
mining, physical coal cleaning, and coal preparation operations
(e.g. culm, gob, etc.) containing coal, matrix material, clay, and
other organic and inorganic material in which the material in the
pile has a calculated average BTU value less than 10,500.
Calculation of the average BTU value of the pile will be based
on the average of five minimum samples taken in different and
uniformly distributed locations. The number and spacing of sampling
locations shall be taken into account variability of the material in
short distances.
On March 8, 2002, WVDEP submitted revisions to its program
amendment submission of February 26, 2002 (Administrative Record Number
WV-1280). In that amendment, the State submitted a revision to
Attachment 8. The revised policy is identical to the one described
above, except for the last paragraph regarding the calculation of
average BTU values. The revised policy provides the following:
Calculation of the average BTU value of the pile will be based
on samples taken in a minimum of five different, uniformly
distributed locations. The number and spacing of sampling locations
should be take into account variability of the material in short
distances.
As amended, CSR 38-2-3.14.a. requires the submittal of a surface
mining permit application for the removal of existing abandoned coal
processing waste piles if the average quality of the refuse material
meets the minimum BTU value standards to be classified as coal, as set
forth in ASTM standard D 388-99 and if not AML eligible. In addition,
the State has established a sampling protocol through its policy
described above that will be used to determine whether abandoned coal
refuse piles meet the definition of coal. As provided by 30 CFR 700.5,
coal is defined to mean combustible carbonaceous rock, classified as
anthracite, bituminous, subbituminous or lignite by ASTM Standard D
388-77. The sampling protocol is designed to ensure that no activities
meeting the definition of surface coal mining operations escape
regulation under the approved State regulatory program. Furthermore,
through the ASTM standard for coal at D 388-99, the State has
established a minimum BTU value and/or ash content to be used in
determining when coal refuse material does not constitute coal as that
term is defined at 30 CFR 700.5.
We find that, because revised CSR 38-2-3.14.a. and the proposed
State policy clearly specify that their provisions apply only to
activities that do not qualify as surface coal mining operations as
that term is defined in 30 CFR 700.5, the required amendment at 30 CFR
948.16(nnnn) has been satisfied, and it can be removed.
At this time, we are only approving the phrase, ``and if not AML
eligible'' at CSR 38-2-3.14.a. to the extent that it would exempt
reclamation projects approved under West Virginia's abandoned mine land
reclamation program that corresponds to Title IV of SMCRA. We are
interpreting the WVDEP's February 26, 2002, policy statement as a
commitment to restrict the scope of this phrase in this manner.
Furthermore, as noted above, until the State revises its government-
financed construction requirements at CSR 38-2-
[[Page 21922]]
3.31, WVDEP cannot allow for the removal of abandoned coal refuse piles
under an approved abandoned mined land project that is less than 50
percent government financed.
27. Coal Removal Incidental to Development. 30 CFR 948.16(oooo)
provides that West Virginia must submit either a proposed amendment or
a description of an amendment to be proposed, together with a timetable
for adoption to remove CSR 38-2-23.
State response:
WVDEP proposed to delete the incidental mining requirements at
section 23 during the 2001 regular legislative session. However, the
WVDEP Advisory Council recommended that the proposed deletion be
removed from the final rule change.
As discussed in the May 5, 2000, Federal Register, we disapproved
proposed regulatory provisions at CSR 38-2-23 (65 FR 26133). As
proposed, CSR 38-2-23 would allow special authorization for coal
extraction as an incidental part of development of land for commercial,
residential, or civic use. The new requirements would allow lesser
standards for coal extraction conducted as an incidental part of land
development. In disapproving these provisions, we noted that on
February 9, 1999, we had found similar statutory provisions at W. Va.
Code 22-3-28(a) through (c) to be less stringent than sections 528 and
701(28) of SMCRA, and therefore, unapprovable (64 FR 6201-6204). In our
disapproval, we stated that we are bound by the constraints of SMCRA
which does not provide a blanket exemption from the definition of
surface mining operation for privately financed construction as
proposed by the State.
In our January 15, 2002, meeting, and in its resubmission of
February 26, 2002, WVDEP acknowledged that the provisions at CSR 38-2-
23 have been disapproved by OSM, and that West Virginia is not
implementing them, as recently evidenced by the West Virginia Supreme
Court decision in DK Excavating, Inc. v. Michael Miano, Director,
WVDEP, 209 W.Va. 406, 549 S.E.2d 280 (2001) (Administrative Record
Number WV-1292). (Administrative Record Nos. WV-1271 and WV-1276).
As noted above in Finding 7, the West Virginia Supreme Court of
Appeals in Canestraro v. Faerber ruled that, ``When a provision of the
West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-
3-1 et seq., is inconsistent with Federal requirements in the Surface
Mining Control and Reclamation Act, 30 U.S.C. Sec. 1201 et seq., the
State Act must be read in a way consistent with the Federal Act.''
Canestraro, 374 S.E.2d at 321 (West Virginia Administrative Record No.
WV-761). See also Schlutz, supra (State regulation enacted pursuant to
the West Virginia Surface Coal Mining and Reclamation Act , W. Va. Code
22A-3-1 to 40 (1993), [now W. Va. Code 22-3-1 to 32 (1994 and
Supp.1995)], must be read in a manner consistent with Federal
regulations enacted in accordance with the Surface Mining Control and
Reclamation Act, 30 U.S.C. 1201 to 1328 (1986)).
Also noted above in Finding 7, the West Virginia Supreme Court of
Appeals also held in Schultz that no change in a State surface mining
law or regulation can take effect for purposes of a State program until
approved by OSM, and State surface mining reclamation regulations must
be read in a manner consistent with Federal regulations enacted in
accordance with SMCRA, Schultz, 475 S.E.2d 467. (Administrative Record
Number WV-1038).
Finally, and as noted above, in DK Excavating, supra, the West
Virginia Supreme Court of Appeals reversed a lower State Circuit Court
ruling which provided that coal extraction authorized as an incidental
part of land development did not come within the State's definition of
surface mining. The Supreme Court found that, ``Once a state plan is
approved under the federal Surface Mining Control and Reclamation Act,
any subsequent amendments to such plan do not become effective until
approved by the federal Office of Surface Mining, and may not be
approved by the Office of Surface Mining if inconsistent with the
Surface Mining Control and Reclamation Act.'' Id. Also, ``Since the
Office of Surface Mining has concluded that the amendment to our state
plan, codified as West Virginia Code Sec. 22-3-3(u)(2)(ii) (1997)
(Repl.Vol.1998), is inconsistent with the Surface Mining Control and
Reclamation Act, that proposed amendment cannot be deemed as an
amendment to the approved West Virginia surface mining plan.'' Id.
We have previously ruled that West Virginia's incidental mining
requirements cannot be approved, because they are inconsistent with
sections 528 and 701(28) of SMCRA. In addition, we required that the
West Virginia program be further amended by removing CSR 38-2-23. As
discussed above, WVDEP is committed to not implementing the disproved
provisions at CSR 38-2-23. This commitment complies with the mandate of
the West Virginia Supreme Court of Appeals, which has held that ``when
there is a conflict between the federal and state provisions, the less
restrictive state provision must yield to the more stringent federal
provision * * *'' Canestraro, supra. Furthermore, State rules must be
read in a manner consistent with Federal regulations, Schultz, supra.
Given the State's commitment not to implement the disapproved
regulatory provisions at CSR 38-2-23, as demonstrated by its actions in
DK Excavating, and because of the principles established in Canestraro,
Schultz, and DK Excavating, we conclude that the required amendment at
30 CFR 948.16(oooo) is no longer needed because the concerns contained
in that required amendment have been satisfied. Therefore, we are
removing it. However, to avoid further confusion or misinterpretation
of its approved State regulatory program, we recommend that the State
remove CSR 38-2-23.
28. Bond Release and Premining Water Quality. 30 CFR 948.16(pppp)
provides that West Virginia must submit either a proposed amendment or
a description of an amendment to be proposed, together with a timetable
for adoption, to remove CSR 38-2-24.4.
State Response
In its program amendment submittal dated May 2, 2001, the State
amended CSR 38-2-24.4., regarding requirements to release bonds, by
deleting language concerning an exception to the requirements to
release bonds, and by adding a new proviso concerning revegetation
(Administrative Record Number WV-1209). As amended, subsection 24.4
reads as follows:
24.4. Requirements to Release Bonds. Bond release for remining
operations shall be in accordance with all of the requirements set
forth in subsection 12.2 of this rule; Provided that there is no
evidence of a premature vegetation release.
In the May 5, 2000, Federal Register, at Finding 9, we disapproved
the predecessor to amended subsection 24.4 in part because the U.S.
Environmental Protection Agency (EPA) declined to concur with the
approval of CSR 38-2-24.4 due to its inconsistency with section 301(p)
of the Clean Water Act (CWA) (65 FR 26133). Under section 301(p) of the
CWA, the State may issue a National Pollutant Discharge Elimination
System (NPDES) permit which modifies the pH, iron, and manganese
standards for preexisting discharges from the remined area or affected
by a qualifying remining operation. However, the permit may not allow
the pH, iron, or manganese levels of any discharge to exceed the levels
being discharged from the remined area
[[Page 21923]]
before the advent of the coal remining operation.
Section 301(p), however, does not apply to all remining operations.
Instead, section 301(p) defines ``coal remining operation'' to mean a
coal mining operation which begins after February 4, 1987 (the date of
enactment of section 301(p), at a site on which coal mining was
conducted before August 3, 1977 (the effective date of SMCRA). EPA
declined to concur with approval with the CSR 38-2-24.4 because that
subsection would allow use of the section 301(p) standards for remining
operations that began prior to February 4, 1987, and for sites on which
coal mining was originally conducted on or after August 3, 1977.
As discussed in our May 5, 2000, Federal Register decision, we
noted that 30 CFR 816.42 and 817.42 require that discharges of water
from areas disturbed by surface mining activities must comply with all
applicable State and Federal water quality laws and regulations.
Because CSR 38-2-24.4 was inconsistent with those requirements, we
required its removal.
The State has not deleted CSR 38-2-24.4 in its entirety, but it has
deleted the offending language. In effect, CSR 38-2-24.4 now requires
that bond release for remining operations must comply with the
requirements of CSR 38-2-12.2 concerning replacement, release, and
forfeiture of bonds. Subsection CSR 38-2-12.2.e. provides that no bond
release or reduction will be granted if, at the time, water discharged
from or affected by the operation requires chemical or passive
treatment in order to comply with applicable effluent or water quality
standards; or long-term water treatment is provided for under
subsections 12.2.e.1. or 12.2.e.2. By requiring compliance with
``applicable effluent limitations or water quality standards,'' CSR 38-
2-12.2.e requires compliance with the State's water quality
requirements, including section 301(p) of the CWA. Furthermore, in our
January 15, 2002, meeting with WVDEP, State officials clarified that
the addition of the proviso concerning premature vegetation release is
intended to ensure that there are no premature vegetation releases on
remining operations (Administrative Record Number WV-1271).
For the reasons discussed above, we find that the amended provision
satisfies the required amendment at 30 CFR 948.16(pppp) and can be
approved. Therefore, we are removing the required amendment.
On January 23, 2002, EPA announced in the Federal Register that is
was amending its current regulations at 40 CFR Part 434 to establish a
coal remining subcategory that will address preexisting discharges at
coal remining operations in the Appalachian and mid-continent coal
regions of the eastern United States (67 FR 3370-3410). The new
guidelines are to provide incentives for remining abandoned coal sites.
According to EPA, under the new rules, remining operations will be
required to implement strategies that control pollutant releases and
ensure the pollutant discharges during remining activities are less
than the pollutant levels released from the abandoned site prior to
remining. Upon completion, the operators will reclaim the land to meet
the same standards currently imposed on active mining areas. EPA
believes that the new guidelines will provide operators with greater
certainty about environmental requirements for remining operations. As
mentioned in its letter of April 10, 2002 (Administrative Record Number
WV-1294), EPA stated that it expects that WVDEP will be submitting
regulations in the near future to comply with the new remining
requirements at 40 CFR 434 Subpart G.
IV. Summary and Disposition of Comments
Public Comments
A. We asked for public comments on the State's initial amendment in
the Federal Register on January 3, 2001 (66 FR 335) (Administrative
Record Number
WV-1194). By letter dated February 28, 2001 (Administrative Record
Number
WV-1202) the West Virginia Highlands Conservancy (WVHC) responded with
the following comments.
1. 30 CFR 948.16(dd). WVHC stated that the State program is
narrower and less effective than the Federal program. Whereas the
Federal standards are specific and somewhat detailed, the State program
is not. WVHC stated that the rules the State references are not even
part of the approved program. The State effectively admits, WVHC
asserted, that its program is deficient by relying on weak guidance
documents to plug the holes in its approved program.
Even if its Technical Handbook were as effective as the Federal
requirements, WVHC stated, the State could not rely on the Technical
Handbook as part of its approved program since it can change such
guidance documents at any time without notice to OSM or the public.
WVHC stated that all portions of the approved State program must be
codified in statute or legislative rule. These productivity rules are
central to proper reclamation, and to the State's economic future.
There must be specific standards for operators to follow.
In response, we disagree that guidance documents cannot be part of
an approved State program. Any changes in laws, rules, policies, or
guidance documents that make up an approved State program are subject
to public review and comment and require OSM approval. As discussed in
Finding 2, WVDEP chose to include its productivity success standards
and the statistical sampling techniques for measuring the success of
ground cover, stocking, and production in a policy that will be
included in its Inspection and Enforcement Handbook. As required by CSR
38-2-9.3.d. and 9.3.e., only after the applicable success standards
have been met and verified by inspectors with the use of the approved
statistical sampling methods can the State approve Phase II or III bond
release. For the reasons set forth in Finding 2, we have determined
that State's proposed policy entitled ``Productivity and Ground Cover
Success Standards'' as set forth as Attachment 1 in its March 8, 2002,
letter (Administrative Record Number WV-1280) is no less effective than
the Federal requirements at 30 CFR 816.116 and 817.116. Therefore, the
required amendment at 30 CFR 948.16(dd) has been satisfied and can be
removed.
2. 30 CFR 948.16(ee). WVHC stated that the State cites to less
effective portions of its approved program and its guidance documents.
The State cannot rely on mere guidance documents, WVHC asserted, as a
way to circumvent the public notice and comment process established by
Congress. If the State could rely on these guidance documents, there
would be no stable State program, and operators and the public would be
subject to the whims of WVDEP, WVHC asserted. In any event, the
provisions that the State relies on are less effective than the Federal
requirements.
In response, again, we must disagree that guidance documents cannot
be a part of an approved State program. These documents are subject to
the same review and approval standards as laws or regulations. As
provided by 30 CFR 948.16(ee), WVDEP was required to submit
documentation that it had consulted with NRCS with respect to the
nature and extent of its prime farmland reconnaissance inspections
required by CSR 38-2-10.2 and obtained the concurrence of NRCS
regarding its negative determination criteria at CSR 38-2-10.2. WVDEP
submitted a letter to NRCS on February 25, 2002 (Administrative Record
Number WV-1276, Attachment 1A),
[[Page 21924]]
outlining its requirements and procedures regarding prime farmlands and
seeking specific concurrence with respect to reconnaissance inspections
and its negative determination criteria. As discussed in Finding 3, on
March 7, 2002, NRCS responded (Administrative Record Number WV-1290)
and concurred with the State's prime farmland requirements. Therefore,
the required amendment at 30 CFR 948.16(ee) has been satisfied and can
be removed.
3. 30 CFR 948.16(oo). WVHC stated that OSM must not remove this
requirement since it has promulgated a Federal regulation requiring
these standards to prevent failure, flooding and erosion. OSM's
standard has been subject to a public notice and comment process, and
is necessary to protect communities and the environment from storms,
the WVHC asserted. Any lesser standard is not as effective as Federal
law WVHC stated.
In response, as discussed in Finding 4, WVDEP proposed
modifications to its spillway design requirements at CSR 38-2-5.4.b.8
on February 26, 2002 (Administrative Record Number 1276). Under the
proposed State standard, the spillways of all sediment control
structures, except for haulroads, must be designed to safely pass a 25-
year, 24-hour precipitation event. The proposed rule at CSR 38-2-
5.4.b.8. is no less effective than the Federal requirements at 30 CFR
816/817.46(c)(2)(ii)(B). Therefore, the required amendment at 30 CFR
948.16(oo) has been satisfied and can be removed.
4. 30 CFR 948.16(tt). WVHC stated that the State submission
improperly relies on guidance documents and is, in any event, less
protective than the Federal program.
In response, the Federal regulations at 30 CFR 732.17 concerning
State program amendments states, at paragraph (a), that 30 CFR 732.17
applies to ``any alteration of an approved State program.'' If a State
regulatory authority submits a policy, technical guidance, or written
statement as a means of rendering the State program no less effective
than the Federal regulations, that policy, technical guidance, or
written statement, if approved by OSM, becomes part of the approved
State program. If, after approval by OSM, the policy, technical
guidance, or written statement subsequently changed, it should be
submitted to OSM as a State program amendment.
As discussed above in Finding 5, we have determined that the State
program has satisfied the part of the required amendment that requires
all sediment control structures be certified as having been built in
accordance with the detailed designs submitted and approved pursuant to
CSR 38-2-3.6.h.4 for the following reasons. CSR 38-2-3.6.h.4. requires
that detailed design plans for a structure be certified and approved
before construction begins. CSR 38-2-5.4.b.1. provides that such
structures be constructed in accordance with those plans. CSR 38-2-
5.4.d.1. requires that prior to any surface mining activities in the
component drainage area, the controlling structures must be certified
as to construction in accordance with the plans.
We have also determined that the State program has satisfied the
part of the required amendment that requires as-built plans be reviewed
and approved by the regulatory authority as permit revisions for the
following reasons. In its submittal, WVDEP stated that for structures
with major design changes, a permit revision would be necessary. WVDEP
further clarified that minor design changes are those within the
construction tolerances described in CSR 38-2-3.35. Therefore, major
design changes are those that exceed the construction tolerances. We
have concluded that sediment control structures that are constructed
with only minor design changes as described above are, in effect, built
to the standards of the approved, certified designs in the preplan.
5. 30 CFR 948.16(mmm). WVHC stated that the State program has
completely confused the variance procedures of steep slope mining and
mountaintop removal mining. There are many differences in the Federal
program that must be part of the State program, WVHC stated. For
example, WVHC stated, the steep slope variance is not available for
agricultural variances. Accordingly, the State provisions are less
effective than Federal requirements and must be rejected, WVHC stated.
In response, this required program amendment was previously
satisfied and removed. See the October 1, 1999, Federal Register (64 FR
53200, 53201 and 53203).
6. 30 CFR 948.16(nnn). The commenter stated that WVDEP admits that
its program is deficient in regard to this amendment and OSM must
continue to require the State to amend its program so that it is as
effective as Federal law.
In response, as discussed above in Finding 7, we are removing this
required amendment because we have previously disapproved the provision
that is the subject of the required amendment, and because of the
principals established in Canestraro, we have concluded that (nnn) has
been satisfied.
7. 30 CFR 948.16(ooo). The commenter stated that the State program
is less effective than the Federal program and the State must amend the
program. The commenter further stated that the WVDEP admits that its
citation is wrong and that it must be changed.
In response, as discussed above in Finding 8, we are removing this
required amendment because we have previously disapproved the provision
that is the subject of the required amendment, and because of the
principals established in Canestraro, we concluded that (ooo) has been
satisfied.
8. 30 CFR 948.16(sss). The commenter stated that the State's
provision is clearly less effective than Federal law and does not
require action by the operator to remedy the damage it may do to
citizens' property value related to water supply. The commenter further
stated that operators must be forced to pay for any damage they do to
citizens' water use or potential water use that affects the value of
the citizen's property.
In response, as discussed above in Finding 10, we have previously
ruled that West Virginia's water replacement waiver provisions could
not be approved ``to the extent'' * * * [i]t would not be implemented
in accordance with the definition of ``Replacement of water supply'' at
30 CFR 701.5. Because of the State's commitment to comply with the more
restrictive Federal waiver requirement, and because of the principles
established in Canestraro and Schultz, we conclude that the required
amendment at 30 CFR 948.16(sss) has been satisfied.
9. 30 CFR 948.16(vvv)(1) through (4). The commenter stated that all
three parts of this provision the State proposal is not as effective as
Federal law and must be rejected, particularly as it relies on guidance
documents rather than on properly adopted rules or statutes. These
provisions, the commenter stated, are especially important given the
potential for damage associated with refuse fills. All requirements
must be scrupulously observed, the commenter stated.
In response, as discussed above in Findings 11, 12, 13, and 14, we
determined that the proposed or existing State requirements were no
less effective than the Federal requirements with regard to restoring
the land to AOC, certification of haulroads, applicability of
subsection 5.4.c to slurry impoundments, and placement of coal refuse
in the backfill, respectively. Therefore, the required amendments at
[[Page 21925]]
30 CFR 948.16(vvv) (1), (2), (3) and (4) have been satisfied and can be
removed.
10. 30 CFR 948.16(zzz). The commenter stated that none of the
State's proposals are as effective as Federal law requires. For
example, the commenter added, there is a clear difference between
``adjacent areas'' and ``adjacent areas with an angle of draw of at
least 30 degrees.'' The former protects a larger area, the commenter
stated. Generally, the commenter asserted, the specific language of the
Federal requirements is more protective of citizens in the area and the
State should not be permitted to compromise citizens' rights by letting
coal companies harm their homes and properties without compensating
them.
In response, and as stated above in Finding 15, the State has
complied with this required amendment by revising its permit
application to require that the type and location of the applicable
structures, lands and water supplies be identified. In addition, in its
May 2, 2001, submittal, the State amended CSR 38-2-3.12.a.1. concerning
subsidence control plans by adding the requirement to include a
narrative. Therefore, the required amendment at 30 CFR 948.16(zzz) has
been satisfied.
11. 30 CFR 948.16(aaaa). The commenter stated that the State
provisions would not protect citizens' drinking water supplies because
they are not as effective as Federal law. The commenter asserted that
the WVDEP could not rely on lax and informal guidance documents as
substitutes for the approved State program.
In response, as we discussed above in Finding 16, the State has
addressed this required amendment by adding language to CSR 38-2-
3.12.a.1. that makes it clear that the WVDEP can specify a area greater
than that encompassed by a 30-degree angle of draw. In addition, the
State has amended CSR 38-2-3.12.a.2. to require a survey of the quality
and quantity of water supplies that could be contaminated, diminished
or interrupted by subsidence ``within the permit area and adjacent
areas.'' Therefore, the required amendment at 30 CFR 948.16(aaaa) has
been satisfied.
12. 30 CFR 948.16(bbbb). The commenter asserted that the State's
provisions are less effective than the Federal program, and the State
may not substitute guidance documents for the approved State program.
In response, and as discussed above in Finding 17, the State
amended CSR 38-2-3.12.a.2.B. to clarify that the applicant must pay for
the surveys and any technical assessments or engineering evaluations.
Therefore, the required amendment at 30 CFR 948.16(bbbb) has been
satisfied.
13. 30 CFR 948.16(iiii). The commenter stated that the current
State language is not as effective as Federal requirements, and the
State must be required to submit provisions that are as stringent as
Federal law.
In response, and as discussed above at Finding 21, WVDEP asserted
that when the State law and rules are read in concert, there is no
confusion that the State provision is no less effective than SMCRA
section 515(c)(3). In addition, the WVDEP submitted its policy
concerning how the provision will be interpreted by WVDEP. We found
that policy renders the West Virginia program no less effective than
the term ``recreational facilities use'' at SMCRA section 515(c)(3) and
we approved that policy as part of the West Virginia program.
14. 30 CFR 948.16(kkkk). The commenter stated that the current
State language is not as effective as Federal requirements, and the
State must be required to submit provisions that are as stringent as
Federal law.
In response, and as we discuss above at Finding 23, the State has
satisfied the required amendment at 30 CFR 948.16(kkkk) by amending the
W. Va. Code at 22-3-13a(g).
15. 30 CFR 948.16(llll). The commenter stated that the current
State language is not as effective as Federal requirements, and the
State must be required to submit provisions that are as stringent as
Federal law.
In response, and as we discuss above at Finding 24, the State has
satisfied the required amendment at 30 CFR 948.16(llll) by amending the
W. Va. Code at 22-3-13a(j).
16. 30 CFR 948.16(mmmm). The commenter stated that the current
State language is not as effective as Federal requirements, and the
State must be required to submit provisions that are as stringent as
Federal law.
In response, and as we discuss above at Finding 25, the State has
satisfied the required amendment at 30 CFR 948.16(mmmm) by amending the
W. Va. Code at 22-3-30a(a).
B. We also published a notice in the Federal Register on March 25,
2002 (67 FR 13577), and requested public comments on the State's
February 26, 2002, and March 8, 2002, amendments (Administrative Record
Number WV-1285). By letter dated April 9, 2002 (Administrative Record
Number WV-1295), the West Virginia Coal Association (WVCA) responded
with the following comments.
17. According to the WVCA, for years, OSM has saddled West
Virginia's mining regulatory program with numerous required amendments.
Some of these amendments were truly warranted in order for the State
program to satisfy the mandates of the Federal statute and regulations.
In other cases, WVCA asserted, the demanded changes have been
superficial, lacking any substantive basis and generally unnecessary.
WVCA stated that for WVDEP and the regulated mining community, OSM's
practice of continually generating required amendments has placed the
State's approved mining program in turmoil. The most offending
manifestation of OSM's actions, WVCA asserted, is the legal action
filed by the WVHC and currently pending in Federal District Court (WVHC
vs. Norton, Civil Action 2:00-CV-1062). WVDEP proposed program
amendments have been allowed to accrue for years, WVCA stated, giving
rise to the Conservancy's legal action which seeks to substitute
judicial mandate for agency discretion, a result never intended by
OSM's guiding statute, SMCRA. WVCA stated that, in general, and with
two exceptions, it supports the proposed amendments and responses
offered by WVDEP to satisfy several outstanding required program
amendments. WVCA urged OSM to approve the amendments as offered by
WVDEP or accept the responses offered by the State agency in instances
where it believes no program amendment is necessary.
In response, we disagree that the required amendments that have
been placed on the West Virginia program are superficial, lack
substance and are generally unnecessary. Changes in both State and
Federal surface mining laws and regulations over the years have
resulted in the imposition of the required amendments that are being
considered today. Resolution of these issues will ensure that the
State's program is consistent with Federal law and regulations.
Compliance with these minimum Federal standards ensures that the
regulation of the mining community is fair and consistent from state to
state and affords West Virginians the same level of environmental
protection of other States. It is unfortunate that some of these
required amendments have gone unresolved for many years. We are hopeful
that in the future issues of this nature will be resolved in a more
timely manner.
18(a). WVCA has four main concerns regarding WVDEP's proposed
amendment to CSR 38-2-5.4.b.8 offered to satisfy required program
amendment (oo). First, WVCA would like a clarification that 30 CFR
948.16(oo)
[[Page 21926]]
deals with a standard to ensure that spillways associated with sediment
control structures can ``safely pass,'' meaning, ``withstand,'' 25-year
24-hour precipitation events. WVCA stated that 30 CFR 948.16(oo) and
the Federal and State counterparts, 30 CFR 816.49(sic)(a)(9)(ii)(C) and
W.Va. CSR 38-2-5.4.b.8, do not contain storage capacity requirements
for sediment control structures.
In response, we agree that the required amendment at 30 948.16(oo)
relates to the design and construction of spillways for sediment
control structures and does not concern the storage capacity of
sedimentation ponds. The State's storage capacity requirements for
sedimentation ponds are contained in CSR 38-2-5.4.b.4. On May 23, 1990,
these requirements were determined to be no less effective than the
Federal requirements at 30 CFR 816/817.46(c)(1)(iii)(C) (55 FR 21304,
21319).
18(b). Second, WVCA maintains that CSR 38-2-5.4.b.8 not only
corresponds to the Federal requirement at 30 CFR 816.49(a)(9)(ii)(C),
but that CSR 38-2-5.4.b.8's 25-year 24-hour precipitation event
standard is more stringent than 30 CFR 816.49(a)(9)(ii)(C)'s 25-year 6-
hour precipitation event standard.
In response, as discussed in the May 23, 1990, Federal Register, we
found that, under most conditions in West Virginia, the peak runoff
from a 24-hour precipitation event would exceed that from a 6-hour
event or that the difference was insignificant in terms of design
considerations. Therefore, we found that the State's use of the 24-hour
storm duration for spillway design and construction was no less
effective than the Federal 6-hour standard (55 FR 21304, 21319).
18(c). Third, WVCA stated that it believes that CSR 38-2-5.4.b.8
should be applied prospectively only, as it exceeds the requirements of
the corresponding Federal law and there is no reason to believe that
spillways designed to pass 10-year 24-hour storm events at excavated
ponds need to be rebuilt.
In response, we disagree that these requirements should only be
applied prospectively and that the proposed State standard exceeds the
Federal requirements. As discussed above in Finding 4, a joint review
of this issue disclosed that the spillways for many of these sediment
control structures are currently larger than the required 25-year, 24-
hour standard due to the size of the equipment used to construct them.
In addition, retroactive application of the 25-year, 24-hour standard
will only pertain to excavated sediment control structures that are at
ground level, because existing State requirements already provide that
other sediment control structures must have spillways designed and
constructed to safely pass a 25 year, 24-hour event. Furthermore, the
applicability requirements at CSR 38-2-1.2 provide for the application
of these requirements to all existing and new surface mining
operations. We anticipate that upon mid-term review, permit revision or
permit renewal, the State will require spillways for excavated sediment
control structures that do not safely pass a 25-year, 24-hour event to
be redesigned and constructed to comply with these requirements.
18(d). Finally, WVCA stated that, as explained in subsequent
paragraphs, it would be remiss not to identify the inconsistency of OSM
regarding this required program amendment.
In response, as discussed above in Finding 4, we do not believe
that we have been inconsistent in our treatment of this required
amendment.
19. According to the WVCA, in the past and in news accounts
following flooding, which occurred in July 2001, standards regarding
the storage capacity of sediment control structures have been confused
with requirements governing the integrity of spillways associated with
sediment control structures. Therefore, WVCA asserted, OSM should
clarify the distinction between requirements to ``safely pass'' a given
precipitation event and requirements to ``contain or treat'' a given
precipitation event (``storage capacity'' requirements). WVCA stated
that 30 CFR 948.16(oo), titled ``Spillway design,'' requires CSR 38-2-
5.4.b.8 to be amended to require that ``excavated sediment control
structures which are at ground level and have an open exit channel
constructed of non-erodible material be designed ``to pass'' the peak
discharge of a 25-year 24-hour precipitation event.'' 30 CFR
948.16(oo)(emphasis added by WVCA). According to the WVCA, while CSR
38-2-5.4.b.4 and the corresponding Federal regulation at 30 CFR
816.46(c)(1)(iii)(C) focus on the requirements for ``containing and
treating'' precipitation events, the requirement in 30 CFR 948.16(oo)
focuses on the storm event which a spillway must be designed to
``safely pass.'' 30 CFR 816.49(a)(9) is the Federal regulation that
corresponds to CSR 38-2-5.4.b.8. 30 CFR 816.49(a)(9) states, ``[a]n
impoundment shall include either a combination of principal and
emergency spillways or a single spillway * * * designed and constructed
to ``safely pass'' the applicable design precipitation event specified
in paragraph (a)(9)(ii) of this section. . . .'' 30 CFR
816.49(a)(9)(emphasis added by WVCA). 30 CFR 816.46(a)(9)(ii)(C)
prescribes the design event that ``spillways'' must be capable of
withstanding, WVCA stated, and provides that: ``[f]or an impoundment
not included in paragraph (a)(9)(ii)(A) and (B) of this section, a 25-
year 6-hour or greater event as specified by the regulatory
authority.'' 30 CFR 816.46(a)(9)(ii)(C). The WVCA concluded that the
requirement to ``safely pass'' such a storm event is distinct from the
requirement to ``contain or treat'' such a storm event.
In response, we agree that the required amendment at 30 CFR
948.16(oo) pertains only to the design and construction of spillways
for excavated sediment control structures. As discussed above in our
response to Comment 18(a), we clarified that this required amendment
does not relate to the storage capacity of sediment control structures.
It should be pointed out that the Federal requirements have been
revised and reorganized since this required amendment was imposed on
the State's program. This may be partly to blame for the confusion. As
discussed above in Finding 4, the State's proposed 25-year, 24-hour
spillway design and construction standard is no less effective than the
Federal requirements at 30 CFR 816/817.46(c)(2) and 30 CFR 816/
817.49(a)(9)(ii)(C), not 30 CFR 816.46(a)(9)(ii)(C), as mentioned
above.
20. According to the WVCA, the provisions of section 505(b) of
SMCRA expressly provide that State law that imposes requirements not
found in SMCRA or ones more stringent than required by the Federal
program are not legally defective by reason of that inconsistency. WVCA
asserted that the West Virginia requirement to withstand a 25-year 24-
hour storm is more stringent than the federal standard in 30 CFR
816.46(a)(9)(ii)(C) requiring safe passage of a 25-year 6-hour event,
because of the longer duration storm event utilized under the West
Virginia standard. In this regard, WVCA concluded, West Virginia has
not complied with its own statutory prohibition on adopting regulations
that are more stringent than corresponding Federal regulations without
first making specific findings (See W.Va. Code Secs. 22-1-3(c) & -3a).
In response, a 25-year, 24-hour event is longer in duration than a
25-year, 6-hour event. Typically, a 24-hour storm yields more total
water volume, but a lower peak flow (depth of water in a channel) than
a 6-hour storm. However, as discussed above in response to Comment
18(b), we found that, in West
[[Page 21927]]
Virginia, this does not hold true. Rather, on May 23, 1990 (55 FR
21304, 21318), we found the State's proposed 25-year, 24-hour standard
to be no less effective than the Federal 25-year, 6-hour standard. That
is, we found that in West Virginia, under most conditions, the peak
runoff from a 24-hour storm would exceed that from a 6-hour storm or
that the difference was insignificant in terms of design
considerations. While we agree that the State standard is no less
effective than the Federal standard, we do not consider it to be more
stringent than the Federal requirements. Furthermore, our determination
was made four years prior to the State adopting its more stringent
statutory provisions in 1994. Therefore, even if the 24-hour standard
is considered to be more stringent than the Federal requirements, the
State has not violated its own statutory prohibition on adopting
regulations that are more stringent than corresponding Federal
regulations.
21. According to the WVCA, because the proposed amendment to CSR
38-2-5.4.b.8 exceeds the requirements of the Federal program, it should
be applied on a prospective basis only. Further, WVCA stated, prior
scrutiny by OSM of the West Virginia program and experience have
validated that use of a 10-year 24-hour storm event standard is safe.
WVCA stated that in August 1994, OSM Charleston Field Office Director
James Blankenship, in a letter to WV DEP Director David Callaghan
regarding the West Virginia regulatory program acknowledged the
sufficiency of the 10-year 24-hour storm event standard when applied to
excavated sediment control structures: ``These types of structures by
their very nature are not subject to catastrophic failure or excessive
erosion. The designed storm criteria are established to address these
potentials and are of no significance for these structures' (see W.Va.
Administrative Record 934). WVCA stated that historic events have
further confirmed the adequacy of the previous standard utilized by
WVDEP. The WVCA concluded that following a record storm event in July
2001, the West Virginia Surface Mine Board determined that structures
constructed according to the 10-year 24-hour storm event standard were
subjected to 100-year 24-hour storm event but did not breach or fail,
just as OSM originally opined in 1994.
In response, we disagree that the proposed revision to CSR 38-2-
5.4.b.8 exceeds the Federal requirements, and should only be applied
prospectively. As discussed above in Finding 4, we found the State's
10-year, 24-hour standard for the design and construction of spillways
to be less effective than the Federal 25-year, 6-hour standard in
October 1991. We has never approved the State's 10-year, 24-hour
spillway design standard for excavated sediment control structures.
Neither is the proposed 25-year, 24-hour State standard more stringent
than the Federal 25-year, 6-hour spillway standard. The proposed
revision will simply make the State's spillway design and construction
requirements for excavated sediment control structures no less
effective than the Federal requirements. Retroactive application of
these requirements (ie. application to existing ground level, excavated
sediment control structures on sites that have not received final bond
release) is required by the State's approved program. As provided by
CSR 38-2-1.2.a., these rules apply to all existing surface mining
operations in the State. Only CSR 38-2-3.8.c. provides an exemption for
existing structures. CSR 38-2-2.48 defines existing structure to mean a
structure or facility used with or to facilitate surface coal mining
and reclamation operations for which construction began prior to
January 18, 1981, the effective date of the State's approved program.
Even then, such structures are subject to revision or reconstruction
when it is necessary to comply with a performance standard.
Furthermore, the comments made above by WVCA regarding the safety
of these types of structures are incorrectly attributed to OSM. The
language that WVCA quoted is the State's response to our comment that
the proposed State standard was still less effective than the Federal
requirements. During a meeting with the State in 1994, it was alleged
that OSM had approved the 10-year, 24-hour standard in other States. In
response to this allegation, we agreed to determine if a similar
exemption existed in the Illinois program. As addressed above in
Finding 4, there is no such standard in the Illinois program. We
understand that the West Virginia Surface Mine Board recently dismissed
a case based on the State's 10-year, 24-hour spillway standard. We
believe that, at the time, the Surface Mine Board was not aware that
OSM had earlier found the State's standard to be less effective than
the Federal requirements. Furthermore, such standard cannot be
considered to be part of the approved State program. As discussed
above, the West Virginia Supreme Court of Appeals has held that, when
an amendment to the State program is found by OSM to be inconsistent
with the Federal requirements, the proposed amendment cannot be deemed
an amendment to the approved State program, DK Excavating, 549 S.E.2d
280, (Administrative Record Number WV-1292).
22. According to the WVCA, OSM previously pledged to remove the
required program amendment at 30 CFR 948.16(oo). WVCA stated that in a
1994 communication from OSM to WVDEP, Charleston Field Office Director
James Blankenship pledged to resolve 30 CFR 948.16 (oo) by approving
CSR 38-2-5.4.b.8 ``as an exemption similar to the one approved in the
Illinois state program'' (W.Va Administrative Record 934).
Additionally, WVCA stated, in two official exchanges subsequent to
Blankenship's 1994, letter WVDEP again argues that CSR 38-2-5.4.b.8 is
as stringent as the federal program and that OSM's original ``promise''
regarding the outstanding program amendment at 30 CFR 948.16(oo) should
be honored. In November 2000, WVDEP responded to required amendment
(oo) by citing the language from the 1994 letter (WV Administrative
Record 1189). Despite WVDEP's response to OSM, in January 2001 the
required amendment to CSR 38-2-5.4.b.8 is again restated (66 Fed. Reg.
335) WVCA stated. In response, WVDEP again pointed to the 1994 pledge
by OSM to approve the existing regulation as a program exemption. WVCA
stated that to its knowledge, OSM has never clarified why the intent of
the 1994 letter regarding amendment (oo) was never implemented.
Unfortunately, WVCA stated, the disparity of OSM regarding this
particular amendment is illustrative of how the Federal agency
communicates with WVDEP regarding the consistency of the State program
with its Federal counterpart. Far too often, WVCA asserted, OSM demands
changes of WVDEP for insignificant or nonexistent reasons. WVCA stated
that, as illustrated by the Federal agency's conduct regarding 30 CFR
948.16(oo), OSM often fails to follow its own directives regarding
State programs. The result of this confusion between the Federal and
State programs, WVCA asserted, is demonstrated by the current
litigation pending against OSM in Federal District Court (WVHC v.
Norton) and the ongoing section 733 actions undertaken by OSM against
WVDEP. WVCA urged that, in the spirit of ending this confusion, OSM
approve the amendment to CSR 38-2-5.4.b.8 as offered by WVDEP.
In response, as discussed above in regard to Comment 21, we agreed
to consider approving the State's proposal if such an exemption had
been previously approved in the Illinois program. As discussed above in
Finding
[[Page 21928]]
4, no such exemption exists in the Illinois program. If we had
determined that this provision was as effective as the Federal
requirements, it would have removed the required amendment. Instead,
the required amendment has remained on the State program since 1991,
because the State's spillway standard for excavated sediment control
structures was determined to be less effective than the Federal
standard. This information was conveyed to the State both informally
and formally. In addition, we regularly provides State officials and
the public an update on the status of the State's outstanding required
amendments and 30 CFR Part 732 issues in the West Virginia Annual
Report. We stand by our earlier decision. However, as discussed above
in Finding 4, because we now find the State's proposed spillway
revision of February 26, 2002 (Attachment 2), to be no less effective
than the Federal requirements, we are removing the required amendment
at 30 CFR 948.16(oo).
23. WVCA stated that it has the following observation regarding the
required amendment specified at 30 CFR 948.16(oooo). WVCA stated that
by demanding that WVDEP remove CSR 38-2-23, OSM appears committed to
wasting coal resources that could be extracted through incidental, non-
mining related construction or development. WVCA stated that such a
desire by OSM is counter to the purpose and spirit of SMCRA, and simply
does not agree with conventional common sense. WVCA urged OSM, as WVDEP
has for several years, to remove the required program amendment.
In response, as discussed above in Finding 28, we disapproved the
State's incidental mining requirements at CSR 38-2-23 on May 5, 2000
(65 FR 26130, 26133). In addition, on February 9, 1999 (64 FR 6201,
6204), we found similar statutory provisions at W.Va. Code 22-3-28(a)
through (c) to be less stringent than sections 528 and 701(28) of
SMCRA, and therefore unapprovable. In our disapproval, we noted that we
are bound by the constraints of SMCRA which does not provide a blanket
exemption from the definition of surface mining operations for
privately financed construction as proposed by the State. A similar
two-acre exemption had existed under section 528(2) of SMCRA, but was
repealed by Public Law 100-34 on May 7, 1987. While incidental mining
activities are not exempt from the requirements of SMCRA, we have
encouraged WVDEP to work with applicants in providing more timely
review and approval of such applications to avoid the wasting of coal
resources. Furthermore, given the State's commitment not to implement
the disapproved regulatory provisions at CSR 38-2-23, as demonstrated
by its actions in DK Excavating, and because of the principles
established in Canestraro, Schultz, and DK Excavating, we are removing
the required amendment at 30 CFR 948.16(oooo) because the concerns
contained therein have been satisfied and it is no longer needed.
C. We asked for public comments on the amendment package submitted
on May 2, 2001, concerning House Bill 2663 in the Federal Register on
May 24, 2001 (Administrative Record Number WV-1213). We did not receive
any specific public comments on the State's responses to the required
amendments addressed in this document. However, some of the public
comments discussed above were addressed by amendments included in this
submission.
D. We asked for public comments on the amendment package submitted
on November 28, 2001, concerning blasting in the Federal Register on
January 31, 2002 (Administrative Record Number WV-1267), but we did not
receive any comments from the public.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendments from various Federal agencies with
an actual or potential interest in the West Virginia program by letters
dated January 26, and May 30, 2001, and February 1, and March 11, 2002
(Administrative Record Numbers WV-1199, WV-1215, WV-1268, and WV-1284,
respectively).
1. By letter dated February 14, 2001 (Administrative Record Number
1204), the United States Department of Labor, Mine Safety and Health
Administration (MSHA) responded to our request for comments. MSHA
requested that we contact MSHA in the event that any long-standing
regulation or amendment thereto should change or alter the areas of a
surface or underground coal mine or a preparation facility, including
refuse piles, impoundments, sealed mines, or highwalls at surface
mines. MSHA further stated that if such regulations or amendments do
cause such changes or alterations, MSHA will assign a technical
inspector to discuss the mine operator's approved plans concerning the
affected areas for the amendment at issue.
In response, changes in State laws and regulations are usually
incorporated into existing permits at the time of permit renewal,
permit revision, or mid-term review. MSHA is provided copies of any
request for renewal or significant revisions to permit applications. In
addition, notification of any changes in State laws or regulations that
make up an approved State regulatory program are provided to MSHA for
review and comment prior to our approval.
2. The United States Department of Agriculture, Natural Resources
Conservation Service (NRCS) responded on February 9, 2001
(Administrative Record Number WV-1203), and provided the following
comments. At required amendment 30 CFR 948.16(dd), NRCS suggested
language to be used in place of the WVDEP's response to the required
amendment codified at 30 CFR 948.16(dd). NRCS suggested the following
language: ``The productivity for grazing land, hayland, and cropland
can be based upon the productivity determinations for similar soil
classifications, or similar map units, as published in the productivity
tables in NRCS soil surveys, or in the NRCS Grassland Suitability
Groups.''
In response, we note that after NRCS commented, the State amended
its response. As discussed in Finding 2, WVDEP proposed a policy to
satisfy the required amendment at 30 CFR 948.16(dd) regarding
productivity and ground cover. In effect, the policy will do what the
NRCS has suggested. In addition, operators will be expected to work
with the NRCS, West Virginia Agricultural Statistics Service/USDA and
WVDEP in developing productivity standards for proposed mining
operations that have hayland, pastureland, or cropland as the
postmining land use.
3. NRCS also commented on the required amendment codified at 30 CFR
948.16(ee). NRCS stated that when evaluating important farmland, NRCS
uses form AD-1006 to determine a Relative Value of Farmland to be
Converted. This form gives weight to Prime and Unique Farmland, and
also gives weight to statewide Important Farmland and Locally Important
Farmland. This is the national system of Land Evaluation and Site
Assessment, or LESA. Many map units of Statewide importance exceed 10
percent slope, and impact our evaluation. Lists of Prime Farmland,
Unique Farmland, Statewide Important Farmland, and Locally Important
Farmland are available for each county.
In response, we note that after the NRCS commented, WVDEP revised
its response to the required amendment at 30 CFR 948.16(ee). As
discussed in Finding 3, WVDEP submitted its prime farmland requirements
and procedures to the NRCS for review. The NRCS commented on the nature
and extent of WVDEP's reconnaissance inspections
[[Page 21929]]
and concurred with the State's negative determination criteria for
prime farmland. The documents described above are taken into
consideration when evaluating areas for prime farmland.
4. The U. S. National Park Service (NPS) responded and provided two
suggestions (Administrative Record Number WV-1289). Concerning the
State's response to the required amendment at 30 CFR 948.16(iiii), NPS
stated that recreational uses such as off-road vehicle use requires
only a minimal amount of reclamation, and operators will naturally
gravitate towards reclaiming areas to this level if allowed to. The
State's reclamation standards in effect would be lowered through what
appears to be an unintended interpretation of what constitutes
``recreational facilities use'' under SMCRA section 515(c)(3).
In response, SMCRA at section 515(c)(3) provides the minimum
standards for approval of mountaintop removal mining operations.
Section 515(c)(3)(A) provides that after consultation with the
appropriate land use planning agencies, if any, the proposed postmining
land use must be deemed to constitute an equal or better economic or
public use of the affected land, as compared with premining use. That
is, while the applicant may propose a certain postmining land use for
mountaintop removal mining operations, it is the decision of the
regulatory authority whether to approve a proposed postmining land use.
The decision, in accordance with section 515(c)(3)(A), must focus on
the value of the proposed use as compared to the premining use. In
addition, SMCRA section 515(c)(3)(B) provides that the applicant must
present specific plans for the proposed use and appropriate assurances
that such use: will be compatible with adjacent land uses; obtainable
according to data regarding expected need and market; assured of
investment in necessary public facilities; supported by commitments
from public agencies where appropriate; practicable with respect to
private financial capability for completion of the proposed use; and
planned pursuant to a schedule attached to the reclamation plan so as
to integrate the mining operation and reclamation with the postmining
land use. Also, Section 515(c)(3)(C) also provides that the proposed
use must be consistent with existing State and local land use plans and
programs. The State counterparts to these requirements are at W. Va.
Code 22-3-13(c)(3).
It is our belief that compliance with the SMCRA provisions
discussed above leads to the following conclusions: (1) A postmining
land use cannot be approved where the use could be achieved without
waiving the AOC requirement, except where it is demonstrated that a
significant public or economic benefit will be realized therefrom; and,
(2) where an exception or variance from the approximate original
requirements is sought, the postmining land use must always offer a net
benefit to the public or the economy. As discussed above in Finding 21,
we find that the policy statement provided by WVDEP renders the term
``recreational uses'' at W. Va. Code 22-3-13(c)(3) no less stringent
than the term ``recreational facilities use'' at section 515(c)(3) of
SMCRA and can be approved.
5. NPS also stated that language identified in the amendments as 30
CFR 948.16(dd) allows for the continuation of the practice of returning
previously mined lands to grazing land, pasture land or cropland. NPS
stated that while grazing is an acceptable reclamation goal under some
circumstances, it should be a limited option, especially in the highly
productive hardwood forest region that surrounds the New River Gorge
National River and Gauley River National Recreation Area. The
circumstances under which grazing land, pasture land or cropland would
be an acceptable reclamation goal, NPS stated, need to be specified and
meet the higher and better use test.
In response, we note that SMCRA and the Federal regulations
currently allow such considerations. Under section 515(c)(3) of SMCRA,
industrial, commercial, agricultural, residential, or public facility
(including recreational facilities) uses may be approved as postmining
land uses for mountaintop removal mining operations. Certain managed
grassland uses, such as grazing land, pasture land, or hayland, are
included within the Federal ``agricultural'' land use category under
section 515(c)(3). The State's mountaintop-removal provisions at W.Va.
Code 22-3-13(c)(3) contain similar requirements. However, as discussed
in the August 16, 2000, Federal Register, we approved a new provision
at CSR 38-2-7.3.c (65 FR 50409, 50414). Subsection 7.3.c. provides that
a change in postmining land uses to grassland uses, such as rangeland
and/or hayland or pasture, is prohibited on mountaintop removal mining
operations that receive an approximate original contour variance
described in W.Va. Code 22-3-13(c). Therefore, as recommended by the
NPS, the grassland uses described above, except for cropland, are no
longer approvable postmining land uses for mountaintop removal mining
operations in West Virginia. Few, if any, mountaintop removal mining
operations in the State have cropland as an approvable postmining land
use. In addition, the change from one land use category to another
category would have to satisfy the alternative postmining land use
requirements of CSR 38-2-7.3.
6. By letter dated March 29, 2002 (Administrative Record Number WV-
1291), the U.S. Army Corps of Engineers (COE) responded and suggested
the inclusion of a statement indicating that separate authorization
from the COE be required for all work involving any discharge of
dredged or fill material into waters of the U.S. COE made this
recommendation it said in order to avoid any inadvertent implication
that the requirements of Section 404 of the Clean Water Act are somehow
superseded by the amendments.
In response, as provided by section 702(a)(3) of SMCRA, we
acknowledge that nothing in the SMCRA requirements may be construed as
superseding, amending, modifying or repealing the Federal Water
Pollution Control Act [amended as The Clean Water Act (CWA)] or the
regulations promulgated thereunder. State programs do not have to
contain a statement regarding the discharge of dredge or fill material
in waters of the United States. However, many States make it a
condition of permit approval requiring that the surface mining
reclamation operation cannot commence without the issuance of a CWA
Section 404 Permit by the COE.
7. By letter dated March 7, 2002 (Administrative Record Number WV-
1290), NRCS stated that its definitions are not consistent with several
parts of the State's rules at CSR 38-2-10 regarding negative
determination criteria. Because cropping history is not considered in
the NRCS definition of prime farmland, they concluded that they could
not agree with any historic use of the land as set forth in the State's
rules at CSR 38-2-10.2.a though 10.2.a.1.C.
In response, as discussed above in Finding 2, section 701(20) of
SMCRA defines prime farmland to include lands ``which have been used
for intensive agricultural purposes * * *.'' In addition, 30 CFR 701.5
defines prime farmland to mean those lands which are defined by the
Secretary of Agriculture in 7 CFR Part 675 and which have been
historically used for cropland. Because the State's prime farmland
requirements include an historical use criterion that is no less
effective than the Federal requirements at 30 CFR 701.5 and because the
NRCS concurs with the
[[Page 21930]]
State's other negative determination criteria, we found WVDEP's
proposal to be no less effective than the Federal requirements at 30
CFR 785.17. Therefore, we are removing the applicable portion of the
required amendment at 30 CFR 948.16(ee).
We asked for comments from Federal agencies by letter dated May 30,
2001, concerning the amendment package submitted to us on May 2, 2001,
concerning House Bill 2663 (Administrative Record Number WV-1215).
8. On June 25, 2001, the U.S. Fish and Wildlife Service responded
to our request for comments, but it did not comment on any of the
State's proposed revisions to the outstanding required amendments
(Administrative Record Number WV-1224) that we are addressing in this
document. Therefore, no response by us is necessary.
We also asked for comments from Federal agencies by letter dated
February 1, 2002, concerning the amendment package submitted to us on
November 28, 2001, concerning blasting (Administrative Record Number
WV-1268).
9. On March 1, 2002 (Administrative Record Number WV-1281), MSHA
responded and stated that the employee and adjacent landowner safety
provisions are consistent with MSHA blasting standards. MSHA also
stated it found no issues or impact upon coal miner's health and
safety.
10. On February 26, 2002 (Administrative Record Number WV-1279),
COE responded and stated that their review of the proposed amendment
found it to be generally satisfactory. The COE did not have any other
comments related to the required amendments codified at 30 CFR
948.16(kkkk), (llll), or (mmmm) that were addressed in the State's
blasting amendment package.
11. On February 5, 2002 (Administrative Record Number WV-1270), the
NPS responded to the State's blasting amendment and stated that it had
no specific comments.
Environmental Protection Agency (EPA) Comments/Concurrence
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
comments and the written concurrence of 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 January 26, 2001, and March 11, 2002, we asked for concurrence
on the amendments from EPA (Administrative Record Numbers WV-1198 and
WV-1283, respectively). On July 3, 2001, and April 10, 2002
(Administrative Record Numbers WV-1225 and WV-1294), EPA sent us its
written concurrence with comments. EPA stated that there are no
apparent inconsistencies with the Clean Water Act (CWA), the National
Pollutant Discharge Elimination System (NPDES) regulations, or other
statutes and regulations under the authority of EPA. EPA said that it
is providing its concurrence with the understanding that implementation
of the amendments must comply with the CWA, NPDES regulations, and
other statutes and regulations under its authority.
In addition, EPA provided the following comments on the proposed
amendments.
1. Required amendment codified at 30 CFR 948.16(oo) concerning the
required design standard for excavated sediment control structures. EPA
stated that it does not have any comments on the design of sediment
control structures to pass certain size storm flows, but wished to
point out that settleable solids effluent limits are required by 40 CFR
Part 434 for discharges to waters of the United States resulting from
10-year, 24-hour or less storms.
In response, we acknowledge the applicability of the regulations at
40 CFR Part 434 to the West Virginia program at CSR 38-2-14.5.b.
2. Required amendment codified at 30 CFR 948.16(vvv)(4) concerning
the placement of coal processing waste in the backfill. EPA stated that
it emphasizes the importance that all assurances be made during
placement of any acidic material into backfills, whether refuse or
overburden, to minimize acid formation and prevent acid seepage. If
conditions exist where there are questions about the effectiveness of
measures for preventing acid seepage, EPA stated, then acidic materials
should not be placed in the backfill.
In response, and as discussed above in Finding 14, acid-or toxic-
producing materials will be rendered non-acid and/or non-toxic prior to
being placed in a backfill. WVDEP stated that CSR 38-2-14.15.m.2.
provides that coal processing waste will not be placed in the backfill
unless it is non-acid and/or non-toxic material or rendered non-acid
and/or non-toxic material. In addition, CSR 38-2-1.6.b. prohibits acid-
forming or toxic-forming material from being buried or stored in
proximity to a drainage course or groundwater system. We agree with EPA
that if conditions exist where there are questions about the
effectiveness of measures for preventing acid seepage, then acidic
materials should not be placed in the backfill.
3. Required amendment codified at 30 CFR 948.16(bbbb) concerning
premining surveys that require technical assessments or engineering
evaluations of water supplies prior to underground mining. EPA
recommended that these surveys also include the quantity and chemical
and biological quality of intermittent and perennial streams.
Subsidence has caused impairment of aquatic habitat from water loss
through streambed fissures and from ponding in subsided stream
stretches, the EPA also stated.
In response, we note that the Federal regulation at 30 CFR
784.20(a)(3), upon which the State rule is based, applies only to
technical assessments or engineering evaluations of certain protected
water supplies, and not to land, or to streams in general.
4. On April 10, 2002, in response to the State's proposed revision
to satisfy 30 CFR 948.16(pppp) regarding bond release and premining
water quality, EPA noted that on January 23, 2002, it promulgated
effluent guideline regulations for remining operations. The regulations
are consistent with section 301(p) of the CWA (Rahall Amendment) and
provide an incentive for remining by requiring less stringent effluent
limits than are required for conventional mining operations. According
to EPA, the remining effluent limits in 40 CFR Part 434 Subpart G apply
to preexisting discharges until bond release and, at a minimum, may not
exceed preexisting baseline levels. Applications for NPDES permits for
remining operations must include pollution abatement plans that
identify the best management practices to be used. Applications must
also include monitoring data on preexisting baseline loadings, unless
such monitoring is considered infeasible due to inaccessible discharges
or other reasons. EPA noted that it is expected that WVDEP will be
providing regulations consistent with 40 CFR Part 434 Subpart G in the
near future.
In response, as discussed above in Finding 28, we acknowledge that
EPA has recently issued effluent limitation guidelines for remining
operations, and it is anticipated that the State's remining
requirements, including CSR 38-2-24.4 if necessary, will have to be
revised in the near future to comply with the new requirements.
5. We asked EPA for comments by letter dated February 1, 2001, on
the amendment package submitted on November 28, 2001, concerning
blasting (Administrative Record Number WV-1268). On February 28, 2002,
EPA responded and stated that it has
[[Page 21931]]
determined that there are no apparent inconsistencies with the Clean
Water Act or other statutes and regulations under EPA's jurisdiction
(Administrative Record Number WV-1282).
6. We also asked EPA for comment and concurrence by letter dated
May 29, 2001, on the amendment package submitted on May 2, 2001,
concerning State House Bill 2663 (Administrative Record Number WV-
1214). By letter dated November 23, 2001, EPA provided the following
comments (Administrative Record Number WV-1252). Concerning the State's
response to 30 CFR 948.16(xx), EPA stated that this provision includes
a requirement that, ``where water quality is paramount,'' outcrop
barriers be constructed with impervious material and have controlled
discharge points. EPA recommended that a definition or some
clarification of the term ``paramount'' be added as it relates to water
quality.
In response, as discussed above in Finding 6, the State revised its
rules at CSR 38-2-14.8.6.a. to provide design requirements for
constructed outcrop barriers. In addition, on February 26, 2002, WVDEP
proposed guidelines that further clarify what standard engineering
practices will be followed when allowing for the removal of a natural
barrier and constructing an outcrop barrier. The term ``paramount''
that EPA recommends be defined is also contained in W.Va. Code Section
22-3-13(b)(25). Like the proposed rule, the statute provides that where
water quality is paramount, the constructed barrier must be composed of
impervious material with controlled discharge points. The State
statutory provision allowing for constructed outcrop barriers was
conditionally approved on January 21, 1981 (46 FR 5915, 5919). The
conditional approval required the State to provide specific design
criteria for constructed outcrop barriers. At time of approval, the
State was not required to define the term, paramount. The purpose of
both constructed and natural outcrop barriers is to prevent slides and
to control erosion. By requiring an operator to construct an outcrop
barrier of impervious material with controlled discharge points, the
State should be able to ensure that the constructed barrier will
effectively control erosion and protect surrounding streams. Not all
outcrop barriers need to be constructed with impervious material, such
as clay, to control erosion. As proposed, it can be asserted that the
State believes that it may be necessary to construct some outcrop
barriers of impervious material whenever water quality is paramount.
This may be due to the fact that the proposed outcrop barrier may be
adjacent to or in the vicinity of a high quality stream. However, given
that the State's existing statutory provision is identical to the
proposed regulatory provision at CSR 38-2-14.8.a.6. and because the
State's constructed outcrop barrier requirements are in accordance with
the Federal requirements for natural barriers at SMCRA section
515(b)(25), we do not agree that the term ``paramount'' needs to be
defined or further clarified as recommended by EPA.
7. Concerning the required amendments at 30 CFR 948.16(ffff),
(gggg), and (hhhh), EPA noted that these provisions relate to the
amount of time allowed to remedy subsidence damage to lands,
structures, or water supplies. EPA stated that it is unclear in this
section or other sections regarding subsidence control if the term
``lands'' includes streams and wetlands which may be adversely affected
by water loss through subsidence cracks and ponding of subsided stream
portions. To provide clarification, EPA recommended that the words
``streams and wetlands'' be included along with lands, structures, and
water supplies in this section and other appropriate sections
addressing subsidence control.
In response, we note that the Federal definition of ``material
damage'' at 30 CFR 701.5 covers damage to the surface and to surface
features, such as wetlands, streams, and bodies of water, and to
structures or facilities. 60 FR 16724, col. 3, March 31, 1995. The
State's definition of material damage contained in CSR 38-2-16.2.c. is
substantively identical to the Federal definition in these pertinent
respects. Therefore, we expect the State to interpret its definition of
``material damage'' in the same manner as we interpret the Federal
definition.
V. OSM's Decision
Based on the above findings, we approve the amendments sent to us
by West Virginia. In addition, we are removing the required program
amendments codified at 30 CFR 948.16(a), (dd), (ee), (oo), (tt), (xx),
(nnn), (ooo), (qqq), (sss), (vvv)(1) through (4), (zzz), (aaaa),
(bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), (llll), (mmmm),
(nnnn), (oooo), and (pppp).
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 948, which codify decisions concerning the West Virginia
program. We find that good cause exists under 5 U.S.C. 553 (d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, 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 such 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. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
[[Page 21932]]
regulations issued by the Secretary pursuant to SMCRA.
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 affect 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the OMB under the Paperwork Reduction Act (44
U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined 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. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. 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 regulation.
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, geographic regions or Federal, State, or local government
agencies; 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 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 was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948:
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 19, 2002.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 948 is amended
as set forth below:
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of publication of final rule'' to read as
follows:
948.15 Approval of West Virginia regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of publication of
Original amendment submission dates final rule Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
November 30, 2000; May 2, 2001; May 1, 2002............ Emergency rule provisions: CSR 38-2-3.12.a.1,
November 28, 2001; February 26, a.2, a.2.B; 5.4.b.8, d.3; 16.2.c.4.
2002; March 8, 2002.
Policy/guidance documents submitted February 26,
2002: Attachments 1A; 2P; 3P and the updated
listing (Administrative Record Number WV-1278);
4 except examples 1 and 3 through 8; 6; and 9.
Policy/guidance documents submitted March 8,
2002: Attachments 1; 3A; and 8.
In House Bill 2663: CSR 38-2-3.12.a.1; 3.14.a;
12.2.e; 12.4.e; 14.8.a.6; 16.2.c.4; and 24.4.
In Senate Bill 689: W. Va. Code 22-3-13a(g),
(j); 30a(a).
----------------------------------------------------------------------------------------------------------------
3. Section 948.16 is amended by removing and reserving paragraphs
(a), (dd), (ee), (oo), (tt), (xx), (nnn), (ooo), (qqq), (sss), (vvv),
(zzz), (aaaa), (bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk),
(llll), (mmmm), (nnnn), (oooo), and (pppp).
[FR Doc. 02-10759 Filed 4-30-02; 8:45 am]
BILLING CODE 4310-05-P