[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Rules and Regulations]
[Pages 6575-6591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2411]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-102-FOR]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with certain exceptions, a proposed 
amendment to the West Virginia regulatory program (the West Virginia 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). West Virginia proposed revisions to the Code of 
State Regulations (CSR), as authorized by Committee Substitute for 
House Bill 4193. The State revised its program to be consistent with 
certain corresponding Federal requirements, and to include other 
amendments at its own initiative. The amendments include, among other 
things, new provisions to ensure reclamation and husbandry techniques 
that are conducive to the development of productive forestlands and 
wildlife habitat after mining.

EFFECTIVE DATE: February 8, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated March 25, 2004 (Administrative Record Number WV-
1389), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment consists of Committee Substitute for House Bill 
4193, which authorizes amendments to the West Virginia Surface Mining 
Reclamation Rules at CSR 38-2. Committee Substitute for House Bill 4193 
passed the Legislature on March 12, 2004, and was signed by the 
Governor on April 5, 2004. West Virginia Code (W.Va. Code or WV Code) 
64-3-1(g) specifically authorizes WVDEP to promulgate the revisions as 
legislative rules.
    In its letter, the WVDEP stated that the rules at CSR 38-2 were 
amended to be consistent with the counterpart Federal regulations. In 
addition, the amendment adds new provisions concerning ``Forestland'' 
and ``Wildlife'' to ensure that reclamation techniques and husbandry 
practices that are conducive to productive forestlands and wildlife 
habitats are followed. The WVDEP also included in its submittal, a 
memorandum from the West Virginia State Forester in which the State 
Forester endorsed the proposed rules and also provided comments on 
them.
    The WVDEP also submitted Committee Substitute for Senate Bill 616, 
which was adopted by the Legislature on March 21, 2004. The Bill 
increased the membership of the Environmental Protection Advisory 
Council and established a new Quality Assurance Compliance Advisory 
Committee. Because this Bill was vetoed by the Governor on April 6, 
2004, it is not being considered in this rulemaking.
    The amendment submitted by WVDEP includes amendments to CSR 38-2-24 
concerning the exemption for coal extraction incidental to the removal 
of other minerals. However, none of these provisions at CSR 38-2-24, 
which the State is proposing to amend, were previously submitted to OSM 
for approval. Therefore, we included CSR 38-2-24 in its entirety in our 
proposed rule notice, and we requested public comment on all of Section 
24 (Administrative Record Number WV-1390) (Finding 10 below).
    We announced receipt of the proposed amendment in the May 12, 2004, 
Federal Register (69 FR 26340). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the proposed amendment (Administrative 
Record Number WV-1396). We did not hold a hearing or a meeting because 
no one requested one. The public comment period closed on June 11, 
2004. We received comments from one individual and two Federal 
agencies.
    We note that the proposed rules that we announced in the May 12, 
2004, Federal Register differ in some respects from the final rules 
that are on file with the West Virginia Secretary of State. While these 
differences are minor and do not affect our findings below one way or 
the other, we recommend that the State correct these differences to 
avoid any confusion in the future.

III. OSM's Findings

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

1. CSR 38-2-3.12.a.1. Subsidence Control Plan

    This provision is amended by changing a term relating to the scale 
of the topographic map that must be submitted with the subsidence 
control plan. In the first sentence, the word ``less'' is deleted and 
replaced by the word ``more.'' In the last sentence, the word ``less'' 
is deleted and replaced by the word ``larger.''
    The revision of the scale term used in this provision is intended 
to adopt standard language concerning map scales. Concerning the map 
scale of 1'' = 1000' or ``larger,'' the word ``larger'' is intended to 
indicate that an acceptable scale would also be, for example, 1'' =

[[Page 6576]]

750' or 1'' = 500'. Such larger scales, though smaller in number, would 
allow a map to accurately show the location of small structures such as 
houses, churches, community buildings, etc.
    We find that the amendment to the last sentence, where the word 
``less'' is deleted and replaced by the word ``larger,'' is consistent 
with and no less effective than the Federal regulations at 30 CFR 
784.20(a)(1) concerning the map to be submitted with a pre-subsidence 
survey and can be approved. The amendment to the first sentence, 
however, contains an inadvertent error. In the first sentence, the word 
``less'' is deleted and replaced by the word ``more.'' It is our 
understanding that the word ``more'' is intended to be ``larger,'' and 
the inadvertent error will be corrected in the future. Our approval of 
the amendments to CSR 38-2-3.12.a.1 is based upon that understanding.
    We note that the amendments to this paragraph satisfy an issue in a 
30 CFR part 732 notification dated June 7, 1996, that we had previously 
sent the State (Administrative Record Number WV-1037(a)). The Federal 
regulations at 30 CFR 732.17(d) provide that OSM must notify the State 
of all changes in SMCRA and the Federal regulations that will require 
an amendment to the State program. Such letters sent by us are often 
referred to as ``732 letters or notifications.'' The part 732 letter 
issue that is being satisfied concerns the scale of the subsidence 
control plan map as required by the State at CSR 38-2-3.12.a.1.

2. CSR 38-2-7.6. Forest Land

    This entire subsection is new. As we stated above at Section II, 
Submission of the Amendment, the State is adding new provisions 
concerning ``Forestland'' and ``Wildlife'' to ensure that reclamation 
techniques and husbandry practices that are conducive to productive 
forestlands and wildlife habitats are followed by coal mining 
operators. The WVDEP also included in its submittal, a memorandum from 
the West Virginia State Forester in which the State Forester endorsed 
the proposed rules and also provided comments on them.
    Trees are a renewable resource, and we believe that reforestation 
is a good investment, both environmentally and economically. 
Environmentally, trees minimize soil erosion, remove carbon dioxide 
from the air, provide wildlife habitat and diverse plant species, and 
help conserve water resources. Economically, high quality timber can 
offer substantial revenue for landowners and job opportunities for 
local residents in terms of logging, furniture making, woodworking, 
etc. In addition, planting trees restores our forests, which are 
important recreational areas for hunting, hiking, camping and mountain 
biking.
    For the past several years, OSM has been working with its partners 
in the coal mining States to identify and promote methods that would 
enhance postmining land use by planting more high-value hardwood trees 
on reclaimed coal mined lands and enhancing the survival and growth 
rates of those trees that are planted. To accomplish these goals, OSM 
conducted several outreach symposia and interactive forums with coal 
mining States, industry representatives, reclamation researchers and 
others to identify information on successful reforestation efforts and 
technologies. OSM has also sought to identify and remove specific 
impediments to tree planting and for promoting technologies with 
potential for enhancing reforestation efforts. Recently, to promote 
reforestation in the Appalachian Region, OSM and the States of 
Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, Virginia and West 
Virginia have jointly started the Appalachian Regional Reforestation 
Initiative (ARRI) to accomplish the goals of reclaiming more active and 
abandoned mined lands with hardwood forests, and increasing the 
survival and growth rates of the planted trees.
    The ARRI promotes the use of specific planting methods that 
increase the survival and growth rates of trees. Collectively, these 
methods are referred to as the forestry reclamation approach (FRA). The 
FRA methods focus on the following: (1) Creating a suitable rooting 
medium for good tree growth that is no less than four feet deep and 
comprised of topsoil, weathered sandstone and/or the best available 
material; (2) loosely grading the topsoil or topsoil substitutes to 
create a non-compacted growth medium; (3) use of native and non-
competitive ground covers that are compatible with growing trees; (4) 
planting two types of trees--early succession species for wildlife and 
soil stability, and commercially valuable crop trees; and (5) using 
proper tree planting techniques. Over the past 20 years of Federal 
oversight, OSM has learned that soil compaction by heavy equipment 
during postmining reclamation is a primary factor that inhibits 
vigorous tree growth. Likewise, OSM has learned that competition with 
ground cover vegetation also seriously inhibits successful 
reforestation. The FRA methods identified above clearly focus on 
eliminating both of these impediments to successful reforestation.
    West Virginia's proposed regulations at CSR 38-2-7.6 concerning 
forest land postmining land use (this Finding), and CSR 38-2-7.7 
concerning wildlife postmining land use (Finding 3 below) incorporate 
the FRA methods identified above and are intended to promote vigorous 
hardwood forests, while providing for wildlife habitat. In this finding 
and in Finding 3 below, in addition to evaluating the proposed 
provisions for consistency with the Federal regulations, we will also 
review the proposed provisions in the light of the planting methods 
recommended under the FRA for promoting vigorous hardwood forests.
    a. 7.6.a. This subsection provides as follows:

    7.6.a. The Secretary may authorize forest land as a postmining 
land use only if the following conditions have been met: Provided, 
however; this subsection only applies to AOC mining operations that 
propose to utilize auger, area, mountain top and contour methods of 
mining. Proposed underground mining, coal preparation facilities, 
coal refuse disposal, haulroads and their related incidental 
facilities are not subject to the provisions of this subsection but 
must comply with all other applicable sections of this rule.

    New CSR 38-2-7.6.a clarifies that the forest land provisions at CSR 
38-2-7.6 apply only to mining operations on lands that will be returned 
to their approximate original contour (AOC). Other State forestry-
related provisions apply to mining operations on lands that receive a 
variance from the requirements to return mined lands to AOC under CSR 
38-2-14.12 and W.Va. Code 22-3-13(c). Specifically, CSR 38-2-7.4 
provides the standards applicable to mountaintop removal mining 
operations with a variance from the requirement to return the land to 
AOC and that have a postmining land use of commercial forestry and 
forestry. We note that the proposed provision does not specifically 
provide that other applicable provisions of the approved surface mining 
program continue to apply. However, there is nothing in proposed 
subsection 7.6.a that supersedes or negates compliance with other 
applicable provisions such as with the general provisions concerning 
premining and postmining land use at CSR 38-2-7.1, the alternative 
postmining land use requirements at CSR 38-2-7.3, or with the bond 
release requirements at CSR 38-2-12.2. Therefore, it is our 
understanding that the other applicable provisions of the West Virginia 
program continue to apply to the extent they are consistent with 
promoting vigorous reforestation as stated above. While there is no 
specific Federal counterpart to proposed CSR 38-2-7.6.a, we find that 
this provision

[[Page 6577]]

is not inconsistent with the Federal regulations at 30 CFR 780.23 
concerning reclamation plans and postmining land use information and 
can be approved. Our approval of this provision is based upon our 
understanding noted above.
    b. 7.6.b. Planting Plan. Subsection 7.6.b. contains requirements 
concerning the development, contents, and review of the planting plan. 
Subsection 7.6.b. contains the following requirements.

    7.6.b.1.A. West Virginia registered professional forester shall 
develop a planting plan for the permitted area that meets the 
requirements of the West Virginia Surface Coal Mining and 
Reclamation Act. This plan shall be made a part of the mining permit 
application. The plans shall be in sufficient detail to demonstrate 
that the requirements of forestland use can be met. The minimum 
contents of the plan shall be as follows:
    7.6.b.1.A.1. A premining native soils map and brief description 
of each soil mapping unit to include at a minimum: Areal extent 
expressed in acres, total depth and volume to bedrock, soil 
horizons, including the O, A, E, B, and C horizon depths, soil 
texture, structure, color, reaction, bedrock type, and a site index 
for northern red oak. A site index for white oak for each soil 
mapping unit should also be provided if available. A weighted, 
average site index for northern red oak, based on acreage per soil 
mapping unit, shall be provided for the permitted area.
    7.6.b.1.A.2. A surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and tree 
planting.
    7.6.b.1.A.3. Liming and fertilizer plans.
    7.6.b.1.A.4. Mulching type, rates and procedures.
    7.6.b.1.A.5. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.6.b.1.A.6. A site specific tree planting prescription to 
establish forestland to include species, stems per acre and planting 
mixes.
    7.6.b.1.B. Review of the Planting plan.
    7.[6.]b.1.B.1. Before approving a forestland postmining land 
use, the Secretary shall assure that the planting plan is reviewed 
and approved by a forester employed [by] the Department of 
Environmental Protection. Before approving the planting plan, the 
Secretary shall assure that the reviewing forester has made site-
specific written findings adequately addressing each of the elements 
of the plans. The reviewing forester shall make these findings 
within 45 days of receipt of the plans.
    7.6.b.1.B.2. If after reviewing the planting plan, the reviewing 
forester finds that the plan complies with the requirements of this 
section, they shall prepare written findings stating the basis of 
approval. A copy of the findings shall be sent to the Secretary and 
shall be made part of the Facts and Findings section of the permit 
application file.
    The Secretary shall ensure that the plans comply with the 
requirements of this rule and other provisions of the approved State 
surface mining program.
    7.6.b.1.B.3. If the reviewing forester finds the plans to be 
insufficient, the forester shall either:
    7.6.b.1.B.3.(a). Contact the preparing forester and the 
permittee and provide the permittee with an opportunity to make the 
changes necessary to bring the planting plan into compliance; or,
    7.6.b.1.B.3.(b). Notify the Secretary that the planting plan 
does not meet the requirements of this rule. The Secretary may not 
approve the surface mining permit until finding that the planting 
plans satisfy all of the requirements of this rule.

    We note that proposed CSR 38-2-7.6.b.1.B.2. provides that the 
Secretary of WVDEP shall ensure that the planting plans submitted under 
CSR 38-2-7.6.b. comply with the requirements of this rule (CSR 38-2) 
and other provisions of the approved State surface mining program. That 
is, in addition to complying with the provisions of CSR 38-2-7.6 
concerning forest land postmining land use, the applicant must also 
comply with the other provisions of the approved State surface mining 
program, such as CSR 38-2-9.3.a., which allows the planting plan to be 
amended or modified prior to implementation, and CSR 38-2-9.3.b., which 
requires the submission of a final planting report following Phase 1 
bond reduction.
    It is our understanding that the ``forester employed [by] the 
Department of Environmental Protection'' at proposed CSR 38-2-
7.6.b.1.B.1 would only be a forester within that agency. The Federal 
regulations at 30 CFR 816.116(b)(3)(i) provide that minimum stocking 
and planting arrangements shall be specified by the regulatory 
authority on the basis of local and regional conditions and after 
consultation with and approval by the State agency responsible for the 
administration of forestry. Consultation and approval may occur on 
either a program wide or a permit-specific basis. Under the approved 
State program, consultation regarding stocking standards occurs on a 
program wide basis with assistance from the Division of Forestry on an 
as needed basis. A memorandum of understanding (MOU) dated June 4, 
1998, currently exists between the Division of Forestry and the WVDEP. 
See Administrative Record Number WV-1109. It is our understanding that 
this MOU is being updated and the required consultation with the State 
agency responsible for the administration of forestry would continue to 
occur under this MOU (Administrative Record Number WV-1404). We note 
that this agreement is being updated to provide for future coordination 
in the development and approval of planting plans specified in this 
proposed provision and to ensure compliance with WV Code 30-19-1 et 
seq., concerning Registered Foresters. Under the revised MOU, the 
Division of Forestry will provide WVDEP technical assistance upon 
request and assist State registered professional foresters in the 
development of those permit applications where the postmining land use 
includes forest land (CSR 38-2-9.3.g), commercial reforestation (CSR 
38-2-9.3.h), commercial forestry (CSR 38-2-7.4), or forest land 
(proposed CSR 38-2-7.6).
    There are no direct Federal counterparts to the proposed provisions 
at subsection 7.6.b concerning planting plan. However, we find that the 
proposed provisions at CSR 38-2-7.6.b. are not inconsistent with the 
Federal requirements at 30 CFR 780.18(b)(5) concerning revegetation 
plan, and we are approving these provisions based upon our 
understanding, as noted above. In the future, if the State fails to 
update the MOU or fails to continue the MOU in force, OSM may 
reconsider this decision and, if appropriate, require the State to 
amend the West Virginia program to add the specifics contained in the 
MOU, including the requirement to consult with the Division of 
Forestry.
    c.7.6.c. Soil placement, Substitute material and Grading. This new 
provision provides as follows:

    7.6.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.6.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1, the substitute material consists of at 
least 75% sandstone, has a composite paste pH between 5.0 and 7.5, 
has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. [concerning Top Soil Substitutes.]. The 
Secretary may allow substitute materials with less than 75% 
sandstone provided the applicant demonstrates the overburden in the 
mine area does not contain an adequate volume of sandstone to meet 
the depth requirements of 7.6.c.1, or the quality of sandstone in 
the overburden does not meet the requirements of this rule. This 
information shall be made a part of the permit application.
    7.6.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.6.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of

[[Page 6578]]

vegetative cover or cause or contribute to a violation of water 
quality standards for the receiving stream.

    We find that proposed 7.6.c.1, which requires at least four feet of 
soil or soil substitutes to be redistributed in a uniform thickness, is 
consistent with and no less effective than the Federal regulations 
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be 
approved. As we noted above in Finding 2.a., it is our understanding 
that the other applicable provisions of the West Virginia program, such 
as CSR 38-2-14.3.a concerning the removal and storage of topsoil, will 
continue to apply to the extent they are consistent with these 
provisions in promoting reestablishment of vigorous hardwood forests. 
Our approval of proposed 7.6.c.1 is based upon that understanding.
    Proposed 7.6.c.2, concerning the demonstrations needed for the 
approval of topsoil substitutes, is consistent with and no less 
effective than 30 CFR 816.22(b) concerning soil substitutes and 
supplements and can be approved. We note that proposed 7.6.c.2 
specifically requires compliance with the topsoil substitute 
requirements at CSR 38-2-14.3.c., which require a demonstration of the 
suitability of the substitutes for the approved postmining land use.
    We find that proposed 7.6.c.3., which requires non-compaction of 
the replaced soil, is consistent with and no less effective than the 
Federal regulations at 30 CFR 816.22(d), concerning redistribution of 
soil and can be approved. 30 CFR 816.22(d) requires redistribution of 
soil in a manner which, at (i), is consistent with the approved 
postmining land use, and, at (ii), prevents excess compaction of the 
materials.
    The proposed requirement for a static safety factor of 1.3 at 
7.6.c.3 is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.102(a)(3), which require the backfill to 
achieve a long-term slope stability factor of 1.3 and to prevent 
slides. The proposed authorization to allow organic debris to be left 
on the surface and in the soil is not inconsistent with the Federal 
regulations, so long as placement of the organic material is limited to 
the topsoil, or topsoil substitute, and this practice does not affect 
stability in accordance with the Federal regulations at 30 CFR 
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions 
toward minimizing compaction and inoculating the soil with organic 
materials is consistent with the needs of forestry and tree growth, and 
with the Federal soil redistribution requirements at 30 CFR 816.22(d). 
In addition, the proposed rule prohibits ``final'' grading and tracking 
on slopes of less than 30 percent or about 17 degrees. We note that the 
grading limitation on slopes of less than 30 percent at proposed 
7.6.c.3 is restricted to ``final'' grading or tracking, and initial or 
subsequent grading will not be prohibited on any slopes, regardless of 
steepness. Furthermore, it is our understanding that if some areas with 
less than 30 percent slope require grading or tracking to ensure 
stability, minimize erosion, or to prevent slippage, the proposed rule 
would not preclude an operator from undertaking grading or tracking and 
normal husbandry practices as provided by CSR 38-2-11.7 and 14.15.a.1 
and the Federal regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). 
Our approval of these provisions is based upon that understanding.
    Proposed 7.6.c.4, provides for the repair of rills and gullies that 
are unstable and/or disrupt the postmining land use or vegetative cover 
or cause or contribute to a violation of water quality standards. The 
Federal regulations at 30 CFR 816.95(b) require that rills and gullies 
that either (1) disrupt the postmining land use or the reestablishment 
of the vegetative cover or (2) cause or contribute to the violation of 
water quality standards must be filled, regraded, or otherwise 
stabilized. We understand the amended State provision concerning repair 
of rills and gullies at CSR 38-2-7.6.c.4 to mean that a permittee is 
generally not authorized to repair rills and gullies, except those 
rills and gullies that are unstable and/or disrupt the approved 
postmining land use, the establishment of vegetative cover, or cause or 
contribute to a violation of water quality standards for the receiving 
stream. This provision is intended to eliminate the compaction of soils 
and the destruction of established vegetative cover that would normally 
take place during routine repair of rills and gullies. Such compaction 
can have a detrimental effect on tree growth. Therefore, we find the 
limitation on the repair of rills and gullies is intended to protect 
tree seedlings and other vegetative growth and help assure the success 
of the forest land postmining land use.
    CSR 38-2-7.6.c.4 does not explicitly require the repair of rills 
and gullies that disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. However, 
the proposed provision in no way prohibits the repair of such rills and 
gullies. Moreover, the approved State program already requires 
restoration of the premining land use, or establishment of an approved 
alternative postmining land use after mining (CSR 38-2-7.1.a. and 7.3, 
respectively), the establishment of vegetative cover (CSR 38-2-
7.6.e.1), and compliance with applicable water quality standards (CSR 
38-2-14.5.b). It necessarily follows from these provisions that rills 
and gullies that could prevent compliance with the above requirements 
must be filled, regraded, or otherwise stabilized. For this reason, we 
find that the proposed amendment at CSR 38-2-7.6.c.4, taken in concert 
with the above-referenced State regulatory requirements, does not 
render the program less effective than 30 CFR 816.95(b) and can be 
approved, so long as it is implemented in a manner consistent with that 
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should 
determine that West Virginia is implementing these provisions in a 
manner that is inconsistent with this finding, a further amendment may 
be required.
    d. 7.6.d. Liming and Fertilizing. This new provision provides as 
follows:

    7.6.d. Liming and Fertilizing.
    7.6.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.6.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. Between 200 and 300 lbs./acre of 10-
20-10 fertilizer shall be applied with the ground cover seeding. 
Other fertilizer materials and rates may be used only if the 
Secretary finds that the substitutions are appropriate based on soil 
testing performed by State certified laboratories.

    There are no direct Federal counterparts to the specific liming and 
fertilizing rates proposed by West Virginia. We find, however, that the 
amendments do not render the West Virginia program less effective than 
the Federal requirements at 30 CFR 779.21 concerning soil resources 
information, 30 CFR 780.18 concerning reclamation plan general 
requirements, and 30 CFR 816.22 concerning topsoil and subsoil and can 
be approved.
    e. 7.6.e. Revegetation. This new provision provides as follows:

    7.6.e. Revegetation.
    7.6.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-

[[Page 6579]]

invasive cool and warm species grasses and other herbaceous vine or 
shrub species including legume species and shrubs. All species shall 
be slow growing and compatible with tree establishment and growth. 
The ground vegetation shall be capable of stabilizing the soil from 
excessive erosion, but the species should be slow growing and non-
invasive to allow the establishment and growth of native herbaceous 
plants and trees. Seeding rates and composition must be in the 
planting plan. The following ground cover mix and seeding rates 
(lb./acre) are strongly recommended: winter wheat or oats (10 lbs./
acre), fall seeding, foxtail millet (5 lbs./acre), summer seeding, 
weeping lovegrass (3 lbs./acre or redtop at 5 lbs./acre), kobe 
lespedeza (5 lbs./acre), birdsfoot trefoil (10lbs.,/acre), perennial 
rye grass (10 lbs.,/acre) and white clover (3 lbs./acres). Kentucky 
31 fescue, serecia lespedeza, all vetches, clovers (except ladino 
and white clover) and other aggressive or invasive species shall not 
be used. Alternate seeding rates and composition will be considered 
on a case by case basis by the Secretary and may be approved if site 
specific conditions necessitate a deviation from the above. All 
mixes shall be compatible with the plant and animal species of the 
region and forestland use.
    7.6.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan prepared 
by a registered professional forester. The stocking density of woody 
plants shall be at least 500 plants per acre.
    7.6.e.2.A. The stocking density for trees shall be at least 350 
plants per acre. There shall be a minimum of five species of trees, 
to include at least three higher value hardwood species (white oak, 
northern red oak, black oak, chestnut oak, white ash, sugar maple, 
black cherry and yellow poplar) and at least two lower value 
hardwoods or softwoods species (all hickories, red maple, basswood, 
cucumber magnolia, sycamore, white pine, Virginia pine and pitch x 
loblolly hybrid pine). There shall be at least 210 high value 
hardwoods plants per acre and 140 lower value hardwood or softwood 
plants per acre (70 plants per acre for each species selected).
    7.6.e.2.B. The stocking density of shrubs and other woody plants 
shall not exceed 150 plants per acre. There shall be a minimum of 
three species of shrubs or other woody plants (black locust, bristly 
locust, dogwood, Eastern redbud, black alder, bigtooth aspen and 
bicolor lespedeza, (50 plants per acre for each species selected).

    There are no direct Federal counterpart regulations to the specific 
provisions of CSR 38-2-7.6.e.1 concerning mixes and seeding rates of 
temporary erosion control vegetative cover. In addition to being 
compatible with plant and animal species of the region, it is our 
understanding that the mixes, shrubs, tree seedlings and any 
alternatives will, as provided by subsections 9.2.a, b, c and h and 30 
CFR 816.111(a) and (b), be compatible with the approved postmining land 
use, have the same seasonal characteristics of growth as the original 
vegetation, be capable of self regeneration and plant succession, and 
meet State and Federal seed, poisonous, and noxious plant and 
introduced species requirements. Our finding that the proposed State 
provisions are not inconsistent with the Federal requirements 
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon 
that understanding and these provisions can be approved, except as 
noted below.
    The proposed provision at CSR 38-2-7.6.e.1 provides that the 
``ground vegetation shall be capable of stabilizing the soil from 
excessive erosion.'' That provision is less effective than the Federal 
regulations at 30 CFR 816.111(a)(4), which provides that the permittee 
shall establish a vegetative cover that is ``[c]apable of stabilizing 
the soil surface from erosion.'' As proposed, CSR 38-2-7.6.e.1 is less 
effective than 30 CFR 816.111(a)(4) because the proposed standard to 
stabilize the soil is modified by the word ``excessive.'' Therefore, we 
are not approving the word ``excessive'' in the phrase ``capable of 
stabilizing the soil from excessive erosion'' at CSR 38-2-7.6.e.1.
    We find that the requirements concerning the selection of tree and 
shrub species at CSR 38-2-7.6.e.2 are consistent with the general 
Federal requirements concerning revegetation at 30 CFR 816.111 and can 
be approved. We also find that the proposed stocking density of trees 
at CSR 38-2-7.6.e.2.A and the stocking density of shrubs at CSR 38-2-
7.6.e.2.B, which have been approved by the Division of Forestry, are 
consistent with and no less effective than the Federal requirements 
concerning revegetation standards for success at 30 CFR 816.116(b)(3) 
and can be approved.
    f. 7.6.f. Standards for Success. This new provision provides as 
follows:

    7.6.f. Standards for Success.
    7.6.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.6.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period; 
and
    7.6.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

    We find that the proposed success standards for revegetation at CSR 
38-2-7.6.f. are consistent with and no less effective than the Federal 
standards for revegetation success of lands to be developed for fish 
and wildlife habitat, recreation, shelter belts, or forest products at 
30 CFR 816.116(b)(3) and can be approved. We note that there is an 
apparent typographical error in paragraph 7.6.f.2. Immediately after 
providing that the minimum success standard shall be tree and shrub 
survival per acre, the provision states that the minimum standard shall 
be ``450 trees per acre and a seventy percent (70%) ground cover * * 
*.'' It is our understanding that the intended meaning of this 
provision is that the minimum success standard of tree and shrub 
survival per acre shall be 450 trees/shrubs per acre with a seventy 
percent (70%) ground cover, and that this apparent typographical error 
will be corrected in the future. Our finding that CSR 38-2-7.6.f. is 
consistent with and no less effective than the Federal standards at 30 
CFR 816.116(b)(3) and can be approved is based upon that understanding.

3. CSR 38-2-7.7 Wildlife

    a. 7.7.a. This subsection is new and provides as follows:

    7.7.a. The Secretary may authorize wildlife as a postmining land 
use only if the following conditions have been met. This subsection 
applies to all AOC mining operations that propose a postmining land 
use of wildlife. The Secretary shall ensure that the plans comply 
with the requirements of this rule and other provisions of the 
approved State surface mining program.

    New subsection CSR 38-2-7.7.a provides that subsection CSR 38-2-7.7 
applies only to surface coal mining operations where the land will be 
returned to AOC. In addition, the provision makes clear that plans 
submitted to comply with CSR 38-2-7.7 must also comply with the 
requirements of the other provisions of the approved State surface 
mining program. That is, in addition to complying with the provisions 
of CSR 38-2-7.7 concerning wildlife postmining land use, the applicant 
must also comply with the other provisions of the approved State 
surface mining program such as CSR 38-2-3.16 concerning fish and 
wildlife resources information, CSR 38-2-7.3 concerning alternative 
postmining land use criteria, or CSR 38-2-12.2 concerning bond release 
requirements. There is no specific Federal counterpart to CSR 38-2-
7.7.a. However, we find that this provision is not inconsistent

[[Page 6580]]

with the Federal regulations at 30 CFR 780.23 concerning reclamation 
plans and postmining land use information and can be approved.
    b. 7.7.b. Planting Plan. Subdivision 7.7.b. contains requirements 
concerning the development, contents, and review of the planting plan. 
Subsection 7.7.b. contains the following requirements:

    7.7.b. Planting Plan.
    7.7.b.1. A wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan for the 
permitted area that meets the requirements of the West Virginia 
Surface Coal Mining and Reclamation Act. This plan shall be made a 
part of the mining permit application. The plans shall be in 
sufficient detail to demonstrate that the requirements of wildlife 
use can be met. The minimum contents of the plan shall be as 
follows:
    7.7.b.1.A.1. Surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and 
planting.
    7.7.b.1.A.2. Liming and fertilizer plans.
    7.7.b.1.A.3. Mulching type, rates and procedures.
    7.7.b.1.A.4. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.7.b.1.A.5. A site specific tree/shrub planting prescription to 
establish wildlife to include species, stems per acre and planting 
mixes.

    We note that proposed CSR 38-2-7.7.b.1 requires the development of 
each proposed planting plan by a wildlife biologist employed by West 
Virginia Division of Natural Resources and made a part of the permit 
application prior to approval by the Secretary of the WVDEP. The 
Federal regulations at 30 CFR 816.116(b)(3)(i) provide that minimum 
stocking and planting arrangements may be approved by the regulatory 
authority, after consultation with and approval by the State agencies 
responsible for the administration of forestry and wildlife programs. 
Consultation and approval may occur on either a program wide or a 
permit-specific basis. Under CSR 38-2-7.7.b.1, the approval of stocking 
and planting arrangements will be on a permit-specific basis. An MOU 
currently exists between the Division of Forestry and the WVDEP (see 
Finding 2.b above). In addition, a Memorandum of Agreement (MOA) dated 
September 16, 2003, currently exists between the Division of Natural 
Resources and the WVDEP (Administrative Record Number WV-1405). It is 
our understanding that the required consultation with the State 
agencies responsible for the administration of forestry and planting 
arrangements will continue to occur under these agreements.
    There are no specific Federal counterparts to the remaining 
proposed provisions at subsection 7.7.b concerning planting plan. 
Nevertheless, we find that the proposed provisions at CSR 38-2-7.7.b. 
are not inconsistent with the Federal requirements at 30 CFR 
780.18(b)(5) concerning revegetation plan and can be approved. However, 
our approval of CSR 38-2-7.7.b is based upon the understanding that the 
MOU between the Division of Forestry and the WVDEP and the MOA between 
the Division of Natural Resources and the WVDEP will continue to be in 
force.
    c. Soil Placement, Substitute Material and Grading. This new 
provision provides as follows:

    7.7.c. Soil placement, Substitute material and Grading.
    7.7.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.7.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1 [7.7.c.1], the substitute material consists 
of at least 75% sandstone, has a composite paste pH between 5.0 and 
7.5, has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. The Secretary may allow substitute materials 
with less than 75% sandstone provided the applicant demonstrates the 
overburden in the mine area does not contain an adequate volume of 
sandstone to meet the depth requirements of 7.6.c.1, or the quality 
of sandstone in the overburden does not meet the requirements of 
this rule. Such information shall be made a part of the permit 
application.
    7.7.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.7.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the 
receiving stream.

    We find that proposed 7.7.c.1, which requires at least four feet of 
soil or soil substitutes to be redistributed in a uniform thickness, is 
consistent with and no less effective than the Federal regulations 
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be 
approved. As we noted above in Finding 3.a., in addition to complying 
with the provisions of CSR 38-2-7.7, the applicant must also comply 
with the other provisions of the approved State program. Therefore, our 
approval of proposed 7.7.c.1 is based upon the understanding that the 
State's topsoil rules at CSR 38-2-14.3(a) and (b) regarding removal and 
redistribution will continue to apply in these situations.
    Proposed 7.7.c.2, concerning the demonstrations needed for the 
approval of topsoil substitutes, is consistent with and no less 
effective than 30 CFR 816.22(b) concerning soil substitutes and 
supplements and can be approved. We note that proposed 7.7.c.2 
specifically requires compliance with the topsoil substitute 
requirements at CSR 38-2-14.3.c., which requires a demonstration of the 
suitability of the substitutes for the approved postmining land use. We 
also note an apparent typographical error in proposed 7.7.c.2. The 
reference to the depth requirements of ``7.6.c.1'' should be to 
``7.7.c.1.'' However, because CSR 38-2-7.6.c.1 and CSR 38-2-7.7.c.1 are 
substantively identical, the typographical error has no meaningful 
effect. Nevertheless, we recommend that the State correct it in the 
future.
    We find that proposed 7.7.c.3., which requires non-compaction of 
the replaced soil, is consistent with and no less effective than the 
Federal regulations at 30 CFR 816.22(d), concerning redistribution of 
soil and can be approved. The regulations at 30 CFR 816.22(d) require 
redistribution of soil in a manner which, at (i), is consistent with 
the approved postmining land use, and, at (ii), prevents excess 
compaction of the materials.
    The proposed requirement for a static safety factor of 1.3 at 
7.7.c.3 is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.102(a)(3), which require the backfill to 
achieve a long-term slope stability factor of 1.3 and to prevent 
slides. The proposed authorization to allow organic debris to be left 
on the surface and in the soil is not inconsistent with the Federal 
regulations, so long as the placement of organic material is limited to 
the topsoil, or topsoil substitute, and this practice does not affect 
stability in accordance with the Federal regulations at 30 CFR 
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions 
toward minimizing compaction and inoculating the soil with organic 
materials is consistent with the needs of forestry and tree growth, and 
with the Federal soil redistribution requirements at 30 CFR 816.22(d). 
In addition, the proposed rule prohibits final grading and tracking on 
slopes of less than 30 percent or about 17 degrees. We note that the 
grading limitation on slopes of less than 30 percent at proposed 
7.7.c.3 is restricted to ``final''

[[Page 6581]]

grading or tracking, and initial or subsequent grading will not be 
prohibited on any slopes, regardless of steepness. Furthermore, it is 
our understanding that if some areas with less than 30 percent slope 
require final grading or tracking to ensure stability, minimize 
erosion, or to prevent slippage, the proposed rule would not preclude 
an operator from undertaking such activities and other normal husbandry 
practices as provided by CSR 38-2-11.7 and 14.15.a.1 and the Federal 
regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). Our approval of 
these provisions is based upon that understanding.
    Proposed 7.7.c.4 provides for the repair of rills and gullies that 
are unstable and/or disrupt the postmining land use or vegetative cover 
or cause or contribute to a violation of water quality standards. The 
Federal regulations at 30 CFR 816.95(b) require that rills and gullies 
that either (1) disrupt the postmining land use or the reestablishment 
of the vegetative cover or (2) cause or contribute to the violation of 
water quality standards must be filled, regraded, or otherwise 
stabilized. We understand the amended State provision concerning repair 
of rills and gullies to mean that a permittee is generally not 
authorized to repair rills and gullies, except those rills and gullies 
that are unstable and/or disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. This 
provision is intended to eliminate the compaction of soils and the 
destruction of established vegetative cover that would normally take 
place during routine repair of rills and gullies. Such compaction can 
have a detrimental effect on tree growth. Therefore, we find the 
limitation on the repair of rills and gullies is intended to protect 
tree seedlings and other vegetative growth and help assure the success 
of the forestry components of the wildlife postmining land use.
    CSR 38-2-7.7.c.4 does not explicitly require the repair of rills 
and gullies that disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. However, 
the proposed provision in no way prohibits the repair of such rills and 
gullies. Moreover, the approved State program already requires 
restoration of the premining land use, or establishment of an approved 
alternative postmining land use after mining, (CSR 38-2-7.1.a. and 7.3, 
respectively), the establishment of vegetative cover (CSR 38-2-
7.7.e.1), and compliance with applicable water quality standards (CSR 
38-2-14.5.b). It necessarily follows from these provisions that rills 
and gullies that could prevent compliance with the above requirements 
must be filled, regraded, or otherwise stabilized. For this reason, we 
find that the proposed amendment at CSR 38-2-7.7.c.4, taken in concert 
with the above-referenced State regulatory requirements, does not 
render the program less effective than 30 CFR 816.95(b) and can be 
approved, so long as it is implemented in a manner consistent with that 
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should 
determine that West Virginia is implementing these provisions in a 
manner that is inconsistent with this finding, a further amendment may 
be required.
    d. 7.7.d. Liming and Fertilizing. This new provision provides as 
follows:

    7.7.d. Liming and Fertilizing.
    7.7.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.7.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. A minimum of 300 lbs./acre of 10-20-10 
fertilizer shall be applied with the ground cover seeding. Other 
fertilizer materials and rates may be used only if the Secretary 
finds that the substitutions are appropriate based on soil testing 
performed by State certified laboratories.

    There are no direct Federal counterparts to the specific liming and 
fertilizing rates proposed by West Virginia. We find, however, that the 
proposed amendments do not render the West Virginia program less 
effective than the Federal requirements at 30 CFR 779.21 concerning 
soil resources information, 30 CFR 780.18 concerning reclamation plan 
general requirements, and 30 CFR 816.22 concerning topsoil and subsoil 
and can be approved.
    e. 7.7.e. Revegetation. This new provision provides as follows:

    7.7.e. Revegetation.
    7.7.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-invasive cool and warm species grasses and other 
herbaceous vine or shrub species including legume species and 
shrubs. All species shall be slow growing and compatible with tree 
establishment and growth. The ground vegetation shall be capable of 
stabilizing the soil from excessive erosion, but the species should 
be slow growing and non-invasive to allow the establishment and 
growth of native herbaceous plants and trees. Seeding rates and 
composition must be in the planting plan. The following ground cover 
mix and seeding rates (lb./acre) are strongly recommended: winter 
wheat (20 lbs./acre), fall seeding, foxtail millet (10 lbs./acre), 
summer seeding, weeping lovegrass (3 lbs./acre or redtop at 5 lbs./
acre), kobe lespedeza (5 lbs./acre), birdsfoot trefoil (15 lbs.,/
acre), perennial rye grass (10 lbs.,/acre) and white clover (4 lbs./
acre). Kentucky 31 fescue, serecia lespedeza, all vetches, clovers 
(except ladino and white clover) and other aggressive or invasive 
species shall not be used. Alternate seeding rates and composition 
will be considered on a case by case basis by the Secretary and may 
be approved if site specific conditions necessitate a deviation from 
the above. Areas designated, as openings shall contain only grasses 
in accordance with the approved planting plan specified under 
subsection 7.7.b. of this rule.
    7.7.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan specified 
in under subsection 7.7.b. of this rule. The stocking density of 
woody plants shall be at least 500 plants per acre. Provided, that 
where a wildlife planting plan has been approved by a professional 
wildlife biologist and proposes a stocking rate of less than four 
hundred fifty (450) trees or shrubs per acre the standard for 
grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule. In all instances, there shall be a 
minimum of four species of tree or shrub, to include at least two 
hard mast producing species.

    There are no direct Federal counterpart regulations concerning the 
specific provisions of CSR 38-2-7.7.e.1 concerning mixes and seeding 
rates of temporary erosion control vegetative cover. In addition to 
being compatible with plant and animal species of the region, it is our 
understanding that the mixes, shrubs, tree seedlings and any 
alternatives will, as provided by subsections 9.2.a, b, c and h and 30 
CFR 816.111(a) and (b), be compatible with the approved postmining land 
use, have the same seasonal characteristics of growth as the original 
vegetation, be capable of self regeneration and plant succession, and 
meet State and Federal seed, poisonous, and noxious plant and 
introduced species requirements. Our finding that the proposed State 
provisions are not inconsistent with the Federal requirements 
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon 
that understanding and can be approved, except as noted below.
    The proposed provision at CSR 38-2-7.7.e.1 provides that the 
``ground vegetation shall be capable of stabilizing the soil from 
excessive erosion.'' That

[[Page 6582]]

provision is less effective than the Federal regulations at 30 CFR 816/
817.111(a)(4), which provides that the permittee shall establish a 
vegetative cover that is ``[c]apable of stabilizing the soil surface 
from erosion.'' As proposed, CSR 38-2-7.7.e.1 is less effective than 30 
CFR 816/817.111(a)(4) because the proposed standard to stabilize the 
soil is modified by the word ``excessive.'' Therefore, we are not 
approving the word ``excessive'' in the phrase ``capable of stabilizing 
the soil from excessive erosion'' at CSR 38-2-7.7.e.1.
    We find that the requirements concerning the selection of tree and 
shrub species at CSR 38-2-7.7.e.2 are consistent with the Federal 
requirements concerning revegetation, general requirements at 30 CFR 
816.111 and can be approved, except as noted below. There is an 
apparent typographical error where the proposed provision requires 
compliance with 9.3.f when the proposed planting plan proposes a 
stocking rate of less than 450 trees or shrubs per acre. Given that the 
proposed requirements promote wildlife habitat and tree growth, the 
proposed citation should be to 9.3.g which provides revegetation 
standards for forestland and wildlife use. The citation to 9.3.f 
concerns revegetation success standards for grazingland, hayland and 
pastureland and, therefore, may not be appropriate for ``wildlife'' 
postmining land use. We find that the proposed stocking density of 450 
woody plants at CSR 38-2-7.7.e.2 is consistent with and no less 
effective than the Federal requirements concerning revegetation 
standards for success at 30 CFR 816.116(b)(3) and can be approved. We 
are making this finding with the understanding that the citation of 
9.3.f will be corrected to 9.3.g. Furthermore, any reduction in tree 
stocking rates beyond those set forth in 9.3.g and 9.3.h when the 
postmining land use includes forest land will require the approval of 
the Division of Forestry on a case-by-case basis.
    As we noted above in Section II, the proposed rules differ from the 
final rules that are on file with the Secretary of State in some 
respects. The last sentence in proposed 7.7.e.2 provides, ``In all 
instances, there shall be a minimum of four species of tree or shrub, 
to include at least two hard mast producing species.'' The rules on 
file with the Secretary of State do not include the word ``two'' before 
hard mast producing species. We believe that this omission is most 
likely a typographical error, and that the State intends to require a 
minimum of two hard mast producing species. Nevertheless, because it 
constitutes a difference that would not further the objectives of the 
proposed rule, we recommend that this omission be corrected in the near 
future.
    f. 7.7.f. Standards for Success. This new provision provides as 
follows:

    7.7.f. Standards for Success.
    7.7.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.7.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period;. 
Provided, that where a wildlife planting plan has been approved by a 
professional wildlife biologist and proposes a stocking rate of less 
than four hundred fifty (450) trees or shrubs per acre the standard 
for grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule.
    7.7.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

    We find that the proposed success standards for revegetation at CSR 
38-2-7.7.f. are consistent with and no less effective than the Federal 
standards for revegetation success of lands to be developed for fish 
and wildlife habitat, recreation, shelter belts, or forest products at 
30 CFR 816.116(b)(3) and can be approved. We note that there is an 
apparent typographical error in the provision at CSR 38-2-7.7.f.2. CSR 
38-2-7.7.f.1 provides that the success of vegetation shall be 
determined on the basis of tree and shrub survival and ground cover. 
The proposed provision at CSR 38-2-7.7.f.2 lacks a reference to 
``shrubs'' after the standard of ``450 trees per acre.'' The standard 
should be ``450 trees/shrubs per acre with a 70 percent ground cover.'' 
It is our understanding that CSR 38-2-7.7.f. applies to trees and 
shrubs, and therefore, the ``450'' standard applies to both trees and 
shrubs. Our finding that CSR 38-2-7.7.f is consistent with and no less 
effective than the Federal standards at 30 CFR 816.116(b)(3) and can be 
approved is based upon that understanding.

4. CSR 38-2-9.3.g Revegetation Standards for Areas To Be Developed for 
Forest Land and/or Wildlife Use

    This provision is amended by adding a sentence in the second 
paragraph that provides as follows:

    A professional wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan that 
meets the requirements of the West Virginia Surface Coal Mining and 
Reclamation Act.

    We find that the new language is consistent with and no less 
effective than the Federal regulations at 30 CFR 816.116(b)(3)(i), 
concerning standards for revegetation success of wildlife habitat, and 
can be approved. The Federal provision at 30 CFR 816.116(b)(3)(i) 
provides that minimum stocking and planting arrangements shall be 
specified by the regulatory authority after consultation with and 
approval by the State agencies responsible for the administration of 
forestry and wildlife programs.
    As discussed in Finding 2.b, an MOU currently exists between the 
Division of Forestry and the WVDEP. In addition, as discussed in 
Finding 3.b, an MOA currently exists between the Division of Natural 
Resources and WVDEP. Because the tree and shrub stocking and planting 
arrangement requirements at CSR 38-2-7.6.f.2, 7.7.f.2, and 9.3.g are 
identical (450 trees/shrubs) as is the ground cover standard (70 
percent), it is our understanding that both agreements could apply in 
all three cases and would require a planting plan to be developed by a 
wildlife biologist employed by the Division of Natural Resources when 
wildlife use is to be the postmining land use. However, we should note 
that both agreements may need to be updated to provide for future 
coordination in the approval of planting plans involving forest land 
and/or wildlife habitat.
    We note that the amendment to this paragraph satisfies an item in a 
30 CFR part 732 notification dated March 6, 1990, that we had 
previously sent the State (Administrative Record Number WV-834). The 
Federal regulations at 30 CFR 732.17(d) provide that OSM must notify 
the State of all changes in SMCRA and the Federal regulations that will 
require an amendment to the State program. Such letters sent by us are 
often referred to as ``732 letters or notifications.'' The issue that 
is satisfied requires minimum stocking and planting arrangements to be 
specified by the regulatory authority after consultation with and 
approval by the State agencies responsible for the administration of 
forestry and wildlife programs. With this action, all issues in our 
March 6, 1990, part 732 notification have been satisfied.

5. CSR 38-2-14.15.a.1. Contemporaneous Reclamation Standards; General

    The first sentence of this paragraph is amended by deleting the 
partial citation

[[Page 6583]]

``(c)(2),'' and adding the words ``and this rule'' immediately 
following the amended citation. As amended, the sentence provides as 
follows:

    14.15.a.1. Spoil returned to the mined-out area shall be 
backfilled and graded to the approximate original contour unless a 
waiver is granted pursuant to W. Va. Code 22-3-13 and this rule with 
all highwalls eliminated.

    The proposed rule provides for an AOC waiver pursuant to WV Code 
22-3-13 and this rule (CSR 38-2). The revision clarifies when an AOC 
variance can be granted. In addition to the mountaintop removal AOC 
variance provision at WV Code 22-3-13(c)(2), there is the steep slope 
AOC variance provision at WV Code 22-2-13(e), and the AOC variance 
provisions for thin or thick overburden at WV Code 22-3-13(b). We find 
that the proposed revision, which includes a citation to all AOC 
variances authorized under the approved State program, does not render 
the West Virginia program less stringent than Section 515 of SMCRA nor 
less effective than the Federal regulations and can be approved.

6. CSR 38-2-14.15.g. Variance--Permit Applications

    This paragraph is amended by adding a sentence, which provides as 
follows:
    Furthermore, the amount of bond for the operation shall be based on 
the maximum amount per acre specified in WV Code 22-3-12(b)(1).
    In a December 3, 2002, Federal Register notice (67 FR 71832), we 
deferred rendering a decision on an earlier proposal by WVDEP to delete 
the language quoted above. We deferred our decision because the 
deletion of the requirement was an example of an action that could 
adversely affect the State's alternative bonding system (ABS) and such 
a change needed to be reviewed by the State's Special Reclamation Fund 
Advisory Council. During the Interim Hearing of August 22, 2004, of the 
Joint State Judiciary and Economic Development Legislative Committees, 
the Advisory Council warned that the State's ABS still has insufficient 
revenue to meet its obligations. The proposed retention of the language 
should help to ensure that the State's ABS will generate sufficient 
revenue to complete reclamation of bond forfeiture sites, including 
those with AOC variances. Therefore, we are approving the amendment. 
For more information, see the December 3, 2002, Federal Register, 
Finding 12 (67 FR 71832, 71836-71837).

7. CSR 38-2-20.1.a.6. Inspection Frequencies Where Permits Have Been 
Revoked

    This provision is new and provides as follows.

    20.1.a.6. When a permit has been revoked, in lieu of the 
inspection frequency established in paragraphs 20.1.a.1 and 20.1.a.2 
of this subsection, the Secretary shall inspect each revoked site on 
a set frequency commensurate with the public health and safety and 
environmental consideration present at each specific site, but in no 
case shall the inspection frequency be set at less than one complete 
inspection per calendar year. In selecting an alternate inspection 
frequency, the Secretary shall first conduct a complete inspection 
of the site and provide public notice. The Secretary shall place a 
notice in the newspaper with the broadest circulation in the 
locality of the revoked mine site providing the public with a 30-day 
period in which to submit written comments. The public notice shall 
contain the permittee's name, the permit number, the precise 
location of the land affected, the inspection frequency proposed, 
the general reasons for reducing the inspection frequency, the bond 
status of the permit, the telephone number and address of [the] 
Department of Environmental Protection Office where written comments 
on the reduced inspection frequency may be submitted, and the 
closing date of the comment period. Following the inspection and 
public notice, the Secretary shall prepare and maintain for public 
review a written finding justifying the alternative inspection 
frequency selected. This written finding shall justify the new 
inspection frequency by affirmatively addressing in detail all of 
the following criteria:
    20.1.a.6.A. Whether, and to what extent, there exists on the 
site impoundments, earthen structures or other conditions that pose, 
or may reasonably be expected to ripen into, imminent dangers to the 
health or safety of the public or significant environmental harms to 
land, air, or water resources;
    20.1.a.6.B. The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    20.1.a.6.C. The degree to which erosion and sediment control is 
present and functioning;
    20.1.a.6.D. The extent to which the site is located near or 
above urbanized areas, communities, occupied dwellings, schools and 
other public or commercial buildings and facilities;
    20.1.a.6.E. The extent of reclamation completed prior to 
abandonment and the degree of stability of unreclaimed areas, taking 
into consideration the physical characteristics of the land mined 
and the extent of settlement or revegetation that has occurred 
naturally with them; and
    20.1.a.6.F. Based on a review of the complete and partial 
inspection report record for the site during at least two 
consecutive years, the rate at which adverse environmental or public 
health and safety conditions have and can be expected to 
progressively deteriorate.

    The proposed revision is in response to our 30 CFR part 732 
notification dated July 22, 1997 (Administrative Record Number WV-
1071). We find the proposed provisions at CSR 38-2-20.1.a.6 to be 
substantively identical to the Federal regulations at 30 CFR 840.11(h), 
except as described below, and can be approved.
    As we noted above in Section II, the proposed State rules differ 
from the final rules that are on file with the Secretary of State in 
some respects. The first sentence in proposed 20.1.a.6 provides, ``When 
a permit has been revoked and is not under a reclamation contract, in 
lieu of the inspection frequency established in paragraphs 20.1.a.1 and 
20.1.a.2 of this subsection, the Secretary shall inspect each revoked 
site on a set frequency commensurate with the public health and safety 
and environmental consideration present at each specific site, but in 
no case shall the inspection frequency be set at less than one complete 
inspection per calendar year.'' The rule summary that was filed with us 
and the rules on file with the Secretary of State do not include the 
words ``and is not under a reclamation contract'' after the word 
revoked. However, this phrase does appear in the proposed State rules 
that were submitted to us for approval. While the presence or absence 
of the phrase ``and is not under a reclamation contract'' does not 
affect our decision concerning CSR 38-2-20.1.a.6, we recommend that the 
WVDEP resolve this apparent discrepancy for the clarity of the West 
Virginia program. Because the phrase quoted above is absent from the 
rule summary and the final rules which are on file with the Secretary 
of State, we have advised the State that the quoted language will not 
be included in our approval of CSR 38-2-20.1.a.6 (Administrative Record 
Number WV-1406).
    The proposed rules at CSR 38-2-20.1.a.6.F, concerning written 
findings, provide for the review of the complete and partial inspection 
report record for the site during ``at least two consecutive years.'' 
The State provision differs slightly from the counterpart Federal 
requirement, which provides for such review of the record for the site 
during ``at least the last two consecutive years.'' The State provision 
at CSR 38-2-20.1.a.6.F lacks the requirement that the review of the 
inspection record must be for at least ``the last'' two consecutive 
years. However, in accordance with its policy dated November 3, 2004, 
the State will consider inspection records for at least the last two 
consecutive years when establishing the inspection frequency for a bond 
forfeiture site

[[Page 6584]]

(Administrative Record Number WV-1409).
    The proposed rule does not include counterparts to the Federal 
regulations at 30 CFR 840.11(g)(1) and (g)(3). Subdivision (g) provides 
that ``abandoned site'' means a surface coal mining and reclamation 
operation for which the regulatory authority has found in writing that, 
at (g)(1), all surface and underground coal mining and reclamation 
activities at the site have ceased. Subdivision (g)(3) requires the 
regulatory authority to take appropriate measures to preclude a 
permittee, and owners and controllers of the permittee, with a revoked 
permit from receiving future permits, and to initiate alternative 
enforcement action to ensure abatement of existing violations at bond 
forfeiture sites. The State's approved program authorizes WVDEP to take 
such action, but the proposed State rules do not specifically require 
it. However, the WVDEP's policy dated November 3, 2004, addresses these 
concerns and provides the following:

    In addition to the written requirements in CSR 38-2-29.1.a.6 
when reducing inspection frequency at bond forfeiture sites not 
under reclamation contract, the following shall apply:
* * * * *
--The agency will make a written finding that all surface and 
underground coal mining and reclamation activities at the site have 
ceased;
--The agency will make a written finding that we are taking 
appropriate measures to preclude the permittee and operator, and 
owners and controllers of the permittee and operator, with a revoked 
permit, from receiving future permits while violations continue at 
the site; and
--Make a written finding that an enforcement action pursuant to West 
Virginia Code 22-3-17(g), (h) or (j) is being initiated to ensure 
abatement of existing violations or that there will not be a 
reoccurrence of violations at the bond forfeiture site, except where 
after evaluating the circumstances it concludes that further 
enforcement offers little or no likelihood of successfully 
compelling abatement or recovering any reclamation costs.

    Unlike the Federal rules, West Virginia's proposed rules and policy 
do not provide for reduced inspection frequency at abandoned sites. 
West Virginia does not reference its show cause procedures at WV Code 
22-3-17(b) in its policy, because sites with revoked permits have 
already been subjected to the State's show cause process. In addition, 
abandoned sites for which the permits have not been revoked will still 
be inspected in accordance with CSR 38-2-20.1.a.1 and 38-2-20.1.a.2.
    Therefore, we find that the State's proposed inspection frequency 
requirements, together with the implementation of the policy as 
described above, are no less effective than the Federal requirements at 
30 CFR 840.11(g) and (h) and can be approved. Furthermore, the proposed 
revision and the policy mentioned above satisfy this issue as described 
in our 30 CFR part 732 notification dated July 22, 1997.

8. CSR 38-2-22.5.a. Coal Refuse Performance Standards--Controlled 
Placement

    This provision is amended in the second sentence by adding the 
words ``hauled or conveyed and'' immediately following the words ``mine 
refuse shall be.'' As amended, the sentence provides that coal mine 
refuse shall be hauled or conveyed and placed in a controlled manner to 
comply with the performance standards at CSR 38-2-22.5.a.1. through 
22.5.a.5. We find that by adding the words ``hauled or conveyed,'' CSR 
38-2-22.5.a is substantively identical to the Federal regulations at 30 
CFR 816/817.81(a) and, therefore, the amendment can be approved. We 
note that this change is in response to and satisfies an item in OSM's 
30 CFR part 732 notification to the State of July 22, 1997 
(Administrative Record Number WV-1071).

9. CSR 38-2-23. Special Authorization for Coal Extraction as an 
Incidental Part of Development of Land for Commercial, Residential, 
Industrial, or Civic Use

    This section is deleted in its entirety. The remaining sections are 
renumbered accordingly. This provision allowed special authorizations 
for coal extraction as an incidental part of the development of land 
for commercial, residential, industrial, or civic use. The deletion of 
this section by the State is in response to our disapproval of Section 
23 at 30 CFR 948.12(a)(4) as discussed in the May 5, 2000, and March 4, 
2003, Federal Register notices and as required by the required program 
amendment codified in the Federal regulations at 30 CFR 948.16(oooo) 
(65 FR 26133 and 68 FR 10719, respectively). The deletion of the 
requirements at Section 23 renders the State's rules no less effective 
than the Federal regulations and can be approved. This approval 
resolves the required program amendment at 30 CFR 948.16(oooo), which 
can be removed.

10. CSR 38-2-24. Exemption for Coal Extraction Incidental to Extraction 
of Other Minerals

    This section is new and provides as follows:

    CSR 38-2-24 Exemption for Coal Extraction Incidental to 
Extraction of Other Minerals.
    24.1. Exemption determination. The term other minerals as used 
in this section means any commercially valuable substance mined for 
its mineral value, excluding coal, topsoil, waste and fill material. 
No later than 90 days after [the] filing of an administratively 
complete request for exemption, the Secretary shall make a written 
determination whether, and under what conditions, the persons 
claiming the exemption are exempt under this section, and shall 
notify the person making the request and persons submitting comments 
on the application of the determination and the basis for the 
determination. The determination of exemption shall be based upon 
information contained in the request and any other information 
available to the regulatory authority at that time. If the Secretary 
fails to provide a determination as specified in this section, an 
applicant who has not begun extraction may commence pending a 
determination unless the Secretary issues an interim finding, 
together with reasons, therefore, that the applicant may not begin 
coal extraction. Any person adversely affected by a determination of 
the Secretary pursuant to this section may file an appeal only in 
accordance with the provisions of article one, chapter twenty-two-b 
of this code, within thirty days after receipt of the determination. 
The filing of an appeal does not suspend the effect of the 
determination.
    24.2. Contents of request for exemption. A request for exemption 
shall be made part of a quarrying application and shall include at a 
minimum:
    24.2.a. The names and business address of the requestor to 
include a street address or route number;
    24.2.b. A list of the minerals to be extracted;
    24.2.c. Estimates of annual production of coal and the other 
minerals over the anticipated life of the operation;
    24.2.d. A reasonable estimate of the number of acres of coal 
that will be extracted;
    24.2.e. Evidence of publication of a public notice for an 
application for exemption. The notice that an application for 
exemption has been filed with the Secretary shall be published in a 
newspaper of general circulation in the county in which the 
operation is located and shall be published once and provide a 
thirty day comment period. The public notice must contain at a 
minimum:
    24.2.e.1. The quarrying number identifying the operation;
    24.2.e.2. A clear and accurate location map of a scale and 
detail found in the West Virginia General Highway Map. The map size 
will be at a minimum four inches (4) x four inches 
(4). Longitude and latitude lines and north arrow will be 
indicated on the map and such lines will cross at or near the center 
of the quarrying operation;
    24.2.e.3. The names and business address of the requestor to 
include a street address or route number;
    24.2.e.4. A narrative description clearly describing the 
location of the quarrying operation;

[[Page 6585]]

    24.2.e.5. The name and address of the Department of 
Environmental Protection Office where written comments on the 
request may be submitted;
    24.2.f. Geologic cross sections, maps or plans of the quarrying 
operation determine the following information:
    24.2.f.1. The locations (latitude and longitude) and elevations 
of all bore holes;
    24.2.f.2. The nature and depth of the various strata or 
overburden including geologic formation names and/or geologic 
members;
    24.2.f.3. The nature and thickness of any coal or other mineral 
to be extracted;
    24.2.g. A map of appropriate scale which clearly identifies the 
coal extraction area versus quarrying area;
    24.2.h. A general description of coal extraction and quarrying 
activities for the operation;
    24.2.i. Estimated annual revenues to be derived from bona fide 
sales of coal and other minerals to be extracted;
    24.2.j. If coal or the other minerals are to be used rather than 
sold, estimated annual fair market values at the time of projected 
use of the coal and other minerals to be extracted;
    24.2.k. The basis for all annual production, revenue, and fair 
market value estimates;
    24.2.l. A summary of sale commitments and agreements, if any, 
that the applicant has received for future delivery of other 
minerals to be extracted from the mining area, or a description of 
potential markets for the other minerals;
    24.2.m. If the other minerals are to be commercially used by the 
applicant, a description specifying the use; and
    24.2.n. Any other information pertinent to the qualification of 
the operation as exempt.
    24.3. Requirements for exemption.
    24.3.a. Activities are exempt from the requirements of the Act 
[the West Virginia Surface Coal Mining and Reclamation Act] if all 
of the following are satisfied:
    24.3.a.1. The production of coal extracted from the mining area 
determined annually as described in this paragraph does not exceed 
16\2/3\ percent of the total annual production of coal and other 
minerals removed during such period for purposes of bona fide sale 
or reasonable commercial use.
    24.3.a.2. Coal is extracted from a geological stratum lying 
above or immediately below the deepest stratum from which other 
minerals are extracted for purposes of bona fide sale or reasonable 
commercial use.
    24.3.a.3. The revenue derived from the coal extracted from the 
mining area, determined annually does not exceed fifty (50) percent 
of the total revenue derived from the coal and other minerals 
removed for purposes of bona fide sale or reasonable commercial use. 
If the coal extracted or the minerals removed are used by the 
operator or transferred to a related entity for use instead of being 
sold in a bona fide sale, then the fair market value of the coal or 
other minerals shall be calculated at the time of use or transfer 
and shall be considered rather than revenue.
    24.3.b. Persons seeking or that have obtained an exemption from 
the requirements of the Act [West Virginia Surface Coal Mining and 
Reclamation Act] shall comply with the following:
    24.3.b.1. Each other mineral upon which an exemption under this 
section is based must be a commercially valuable mineral for which a 
market exists or which is quarried in bona fide anticipation that a 
market will exist for the mineral in the reasonably foreseeable 
future, not to exceed twelve months. A legally binding agreement for 
the future sale of other minerals is sufficient to demonstrate the 
above standard.
    24.3.b.2. If either coal or other minerals are transferred or 
sold by the operator to a related entity for its use or sale, the 
transaction must be made for legitimate business purposes.
    24.4. Conditions of exemption.
    A person conducting activities covered by this part shall:
    24.4.a. Maintain on site the information necessary to verify the 
exemption including, but not limited to, commercial use and sales 
information, extraction tonnages, and a copy of the exemption 
application and the Department's exemption approval;
    24.4.b. Notify the Department of Environmental Protection upon 
the completion or permanent cessation of all coal extraction 
activities.
    24.5. Stockpiling of minerals.
    24.5.a. Coal extracted and stockpiled may be excluded from the 
calculation of annual production until the time of its sale, 
transfer to a related entity or use:
    24.5.a.1. Up to an amount equaling a 12 month supply of the coal 
required for future sale, transfer or use as calculated based upon 
the average annual sales, transfer and use from the mining area over 
the two preceding years; or
    24.5.a.2. For a mining area where coal has been extracted for a 
period of less than two years, up to an amount that would represent 
a 12 month supply of the coal required for future sales, transfer or 
use as calculated based on the average amount of coal sold, 
transferred or used each month.
    24.5.b. The Department of Environmental Protection shall 
disallow all or part of an operator's tonnages of stockpiled other 
minerals for purposes of meeting the requirements of this part if 
the operator fails to maintain adequate and verifiable records of 
the mining area of origin, the disposition of stockpiles or if the 
disposition of the stockpiles indicates the lack of commercial use 
or market for the minerals.
    The Department of Environmental Protection may only allow an 
operator to utilize tonnages of stockpiled other minerals for 
purposes of meeting the requirements of this part if:
    24.5.b.1. The stockpiling is necessary to meet market conditions 
or is consistent with generally accepted industry practices; and
    24.5.b.2. Except as provided in 24.5.b.3. of this section, the 
stockpiled other minerals do not exceed a 12 month supply of the 
mineral required for future sales as approved by the regulatory 
authority on the basis of the exemption application.
    24.5.b.3. The Department of Environmental Protection may allow 
an operator to utilize tonnages of stockpiled other minerals beyond 
the 12 month limit established in 24.5.b.2. of this section if the 
operator can demonstrate to the Department of Environmental 
Protection's satisfaction that the additional tonnage is required to 
meet future business obligations of the operator, such as may be 
demonstrated by a legally binding agreement for future delivery of 
the minerals.
    24.5.b.4. The Department of Environmental Protection may 
periodically revise the other mineral stockpile tonnage limits in 
accordance with the criteria established by 24.5.b.2. and 3. of this 
section based on additional information available to the Department 
of Environmental Protection.
    24.6. Revocation and enforcement.
    24.6.a. The Department of Environmental Protection shall conduct 
an annual compliance review of the operation requesting exemption.
    24.6.b. If the Department of Environmental Protection has reason 
to believe that a specific operation was not exempt at the end of 
the previous reporting period, is not exempt, or will be unable to 
satisfy the exemption criteria at the end of the current reporting 
period, the Department of Environmental Protection shall notify the 
operator that the exemption may be revoked and the reason(s) 
therefore. The exemption will be revoked unless the operator 
demonstrates to the Department of Environmental Protection within 30 
days that the operation in question should continue to be exempt.
    24.6.c. If the Department of Environmental Protection finds that 
an operator has not demonstrated that activities conducted in the 
operation area qualify for the exemption, the Department of 
Environmental Protection shall revoke the exemption and immediately 
notify the operator and commenter(s). If a decision is made not to 
revoke an exemption, the Secretary shall immediately notify the 
operator and commenter(s).
    24.6.d. Any adversely affected person by a determination of the 
Secretary pursuant to this section may file an appeal only in 
accordance with the provisions of WV Sec.  22B-1-1 et seq. of this 
code, within thirty days after receipt of the determination. The 
filing of an appeal does not suspend the effect of the 
determination.
    24.6.e. Direct enforcement.
    24.6.e.1. An operator mining in accordance with the terms of an 
approved exemption shall not be cited for violations of WV Sec.  22-
3 et seq. or [section] 38-2 et seq. that occurred prior to the 
revocation of the exemption. Provided, however, an operator who does 
not conduct activities in accordance with the terms of an approved 
exemption and knows or should have known that the activities are not 
in accordance with the approved exemption shall be subject to direct 
enforcement action for violations of WV [section] 22-3 et seq. or 
[section] 38-2 et seq. that occur during the period of the 
activities.
    24.6.e.2. Upon revocation of an exemption or denial of an 
exemption application, an operator shall stop conducting surface 
coal mining operations until a permit is obtained, and shall comply 
with the reclamation standards of WV [section] 22-3 et seq. or 
[section] 38-2 et seq. with regard to conditions, areas, and 
activities existing at the time of revocation or denial.
    24.7. Reporting requirements.

[[Page 6586]]

    24.7.a.1. Following approval by the Department of Environmental 
Protection of an exemption for an operation, the person receiving 
the exemption shall file a quarterly production report with the 
Department of Environmental Protection containing the information 
specified in 24.7.a.3. of this section.
    24.7.a.2. The report shall be filed no later than 30 days after 
the end of each quarter.
    24.7.a.3. The information in the report shall cover:
    24.7.a.3.A. Quarterly production of coal and other minerals, and
    24.7.a.3.B. The cumulative production of coal and other 
minerals.
    24.7.a.3.C. The number of tons of coal stockpiled;
    24.7.a.3.D. The number of tons of other minerals stockpiled by 
the operator.
    24.7.b.1. Following approval by the Department of Environmental 
Protection of an exemption for an operation, the person receiving 
the exemption shall file an annual production report with the 
Department of Environmental Protection containing the information 
specified in 24.7.b.3.of this section.
    24.7.b.2. The report shall be filed no later than 30 days after 
the end of each calendar year.
    24.7.b.3. The information in the report shall include:
    24.7.b.3.a. The number of tons of extracted coal sold in bona 
fide sales and the total revenue derived from these sales;
    24.7.b.3.b. The number of tons of coal extracted and used or 
transferred by the operator or related entity and the estimated 
total fair market value of this coal;
    24.7.b.3.c. The number of tons of coal stockpiled;
    24.7.b.3.d. The number of tons of other commercially valuable 
minerals extracted and sold in bona fide sales and total revenue 
derived from these sales;
    24.7.b.3.e. The number of tons of other commercially valuable 
minerals extracted and used or transferred by the operator or 
related entity and the estimated total fair market value of these 
minerals;
    24.7.b.3 .f. The number of tons of other commercially valuable 
minerals removed and stockpiled by the operator;
    24.7.b.3.g. The annual production of coal and other minerals and 
the annual revenue derived from coal and other minerals; and 
24.7.b.3.h. The annual production of coal and other minerals and the 
annual revenue derived from coal and other minerals during the 
preceding year.
    24.8. Public Availability of Information.
    24.8.1. Except as provided in 24.8.2, all information submitted 
to the Secretary shall be made immediately available for public 
inspection and copying at the office with jurisdiction over coal 
mining in the locality of the subject exempt operation, until at 
least three (3) years after expiration of the period during which 
the subject mining area is active.
    24.8.2 The Secretary may keep information submitted to the 
Secretary confidential if the person submitting it requests in 
writing, at the time of submission, that it be kept confidential and 
if the information concerns trade secrets or is privileged 
commercial or financial information of the persons intending to 
conduct operations under this rule.
    24.8.3. Information requested to be held as confidential under 
subsection 24.8.2 shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking 
and opposing disclosure of the information.
    24.9. Right of Inspection and Entry.
    24.9.1 Authorized representatives of the Secretary and the 
Secretary of the U.S. Department of the Interior shall have the 
right to conduct inspections of operations claiming exemption.
    24.9.2. Each authorized representative of the Secretary and the 
Secretary of the U.S. Department of the Interior conducting an 
inspection under this rule shall:
    24.9.2.a. Have a right of entry to, upon, and through any mining 
and reclamation operations without advance notice or a search 
warrant, upon presentation of appropriate credentials;
    24.9.2.b. At reasonable times and without delay, have access to 
and copy any records relevant to the exemption; and
    24.9.2.c. Have a right to gather physical and photographic 
evidence to document conditions, practices, or violations at a site.
    24.9.3. No search warrant shall be required with respect to any 
activity under 24.9.1 and 24.9.2., except that a search warrant may 
be required for entry into a building.

    The proposed revisions are in response to our 30 CFR part 732 
notification dated March 6, 1990 (Administrative Record Number WV-834). 
Except as noted below, we find that the proposed amendments at CSR 38-
2-24, concerning an exemption for coal extraction incidental to 
extraction of other minerals, are substantively identical to the 
counterpart Federal regulations at 30 CFR part 702 and can be approved.
    CSR 38-2-24.2.c. The State provides that a request for an exemption 
shall be made part of a quarrying application and shall at a minimum 
include ``[e]stimates of annual production of coal and the other 
minerals over the anticipated life of the operation.'' The counterpart 
Federal regulations at 30 CFR 702.12(c) provide that, at a minimum, an 
application shall include estimates of annual production of coal and 
the other minerals within ``each mining area'' over the anticipated 
life of the mining operation. The proposed State provision lacks a 
counterpart to the Federal phrase ``each mining area.''
    The Federal regulations at 30 CFR 702.5(d) define mining area to 
mean an individual excavation site or pit from which coal, other 
minerals and overburden are removed. The intended purpose of the term 
``mining area'' is discussed in the December 20, 1989, Federal Register 
notice in which the Federal regulations at 30 CFR part 702 were 
announced (54 FR 52092, 52096). In that notice, OSM stated that the 
primary purpose for the definition of mining area being limited to an 
individual excavation site or pit is to preclude an operator from 
averaging mineral tonnages from different locations to gain an 
unwarranted exemption from the Act. The definition also prohibits an 
operator from claiming an exemption by combining production from 
distinct noncoal and coal operations. Each excavation site or pit must 
individually qualify for the exemption in accordance with the 
requirements for exemption under 30 CFR 702.14. OSM further stated that 
it recognizes that a single excavation site or pit may, depending on 
its size, include a number of individual excavation activities. In this 
context, OSM considers a mining area to include the excavation 
activities occurring within a single excavation site or pit.
    It is our understanding that quarries within West Virginia can be 
typically characterized as single excavations that may, depending on 
their size, include a number of individual excavation activities. For 
this reason, we find that proposed CSR 38-2-24.2.c does not render the 
West Virginia program less effective than the Federal regulations at 30 
CFR 702.5(d) and can be approved. Our approval of this provision is 
based upon that understanding. If the State fails to implement this 
provision in a manner consistent with our understanding described 
above, OSM may require the State to amend the West Virginia program to 
require that an application shall include estimates of annual 
production of coal and the other minerals within ``each mining area'' 
over the anticipated life of the mining operation.
    CSR 38-2-24.2.d and 38-2-24.2.g. The Federal regulations at 30 CFR 
702.12(h) provide that an application for an exemption shall include, 
at a minimum, an estimate to the nearest acre of the number of acres 
that will compose the mining area over the anticipated life of the 
mining operation. While the proposed rules at CSR 38-2-24 do not 
contain a specific counterpart to this Federal requirement, acreage 
identification information is indirectly provided by two State 
requirements. Proposed CSR 38-2-24.2.d provides that a request for an 
exemption shall include, at a minimum, a reasonable estimate of the 
number of acres of coal that will be mined. In addition, proposed CSR 
38-2-24.2.g provides that a request for an exemption shall include at a 
minimum a map of appropriate scale which clearly identifies the coal 
extraction area versus the quarrying

[[Page 6587]]

area. We find that the information provided by an applicant for an 
exemption under proposed CSR 38-2-24.2.d and CSR 38-2-24.2.g renders 
the proposed amendments no less effective than the Federal regulations 
at 30 CFR 702.12(h).
    CSR 38-2-24.2.e.4. This proposed provision provides that the 
newspaper notice published to inform the public of the application for 
an exemption must contain a narrative description clearly describing 
the location of the quarrying operation. This requirement is 
substantively identical to the counterpart Federal provision at 30 CFR 
702.12(i), except that the State provision does not provide for a 
description of the proposed operation as does 30 CFR 702.12(i). We find 
that this omission does not render the State provision less effective 
because that information is available to the public via the quarry 
identification number that is required by proposed CSR 38-2-24.2.e.1. 
Under the proposed State rules, only quarries are eligible to obtain an 
exemption under CSR 38-2-24, and the descriptive information about 
those quarries is available to the public via the quarry number and the 
narrative describing the location of such operations. Therefore, we 
find that the lack of a specific State counterpart to 30 CFR 702.12(i) 
concerning a description of the proposed operation does not render the 
provision less effective than 30 CFR 702.12(i).
    CSR 38-2-24.2.f.2. The Federal regulations at 30 CFR 702.12(j) 
provide that an application for an exemption shall include, at a 
minimum, the relative position and thickness of any material not 
classified as ``other minerals'' that will also be extracted during the 
conduct of mining activities. There is no specific State counterpart to 
this Federal provision. However, the information concerning ``other 
materials'' not classified as ``other minerals'' that will also be 
extracted during the mining activities is required by the provision at 
CSR 38-2-24.2.f.2. The State provision provides that an application for 
an exemption shall include at a minimum the nature and depth of the 
various strata or overburden including geologic formation names and/or 
geologic members. This information would include, therefore, the 
identification of the relative position and thickness of the coal, 
``other minerals'' to be mined and the ``other materials'' not 
classified as ``other minerals'' that will also be extracted during the 
mining process. Therefore, we find that proposed CSR 38-2-24.2.f.2 
renders the West Virginia program no less effective than the Federal 
regulations at 30 CFR 702.12(j).
    CSR 38-2-24.6.c. We note that proposed CSR 38-2-24.6.c, concerning 
notification of the operator and commenter(s) of the WVDEP's 
determination to revoke or not revoke an exemption, uses the term 
``commenter(s)'' whereas the counterpart Federal provision at 30 CFR 
702.17(c)(1) uses the term ``intervenors.'' Under the West Virginia 
program, ``commenter(s)'' have the same rights as ``intervenors.'' 
Therefore, we find that the term ``commenter(s)'' at proposed CSR 38-2-
24.6.c does not render that provision less effective than the Federal 
regulations at 30 CFR 702.17(c)(1).
    CSR 38-2-24.7.a and 38-2-24.7.b. The proposed provisions at CSR 38-
2-24 lack counterparts to the Federal definitions of ``cumulative 
measurement period'' at 30 CFR 702.5(a), ``cumulative production'' at 
30 CFR 702.5(b), and ``cumulative revenue'' at 30 CFR 702.5(c). The 
Federal term ``cumulative measurement period'' means the period of time 
over which both cumulative production and cumulative revenue are 
measured. The Federal definition also provides criteria to determine 
the beginning of the cumulative measurement period, and for determining 
the date of annual reporting. West Virginia does not propose to use 
``cumulative measurement period,'' ``cumulative production'' or 
``cumulative revenue'' to determine eligibility for the exemption.
    Under the proposed rules at CSR 38-2-24.7.a and 24.7.b, West 
Virginia is adopting quarterly reporting of certain information and 
annual reporting at the end of each calendar year, respectively. All of 
the data required to be reported under the Federal regulations at 30 
CFR part 702 are required by the proposed State provisions, except the 
reporting of ``cumulative production'' and ``cumulative revenue'' 
throughout the ``cumulative measurement period.''
    Under the Federal definition of ``cumulative measurement period'' 
at 30 CFR 702.5(a), both production and revenue data would be recorded 
from the beginning of the ``cumulative measurement period'' to the 
present. These cumulative data would be used to determine eligibility 
for initial approval of the exemption and for continued approval of the 
exemption. OSM explained the purpose of the ``cumulative measurement 
period'' in the preamble to the Federal Register notice in which OSM 
approved the regulations at 30 CFR part 702. OSM stated that production 
rates of coal and other minerals are usually not consistent over the 
life of the mining operation. In some years, a relatively large amount 
of coal may be produced; in other years, coal production may be small 
or nonexistent. ``To avoid making such operations become subject to and 
not subject to the jurisdiction of the Act, as may occur under the 12 
consecutive month test, * * * OSM is adopting a rule that measures 
production, adjusted for legitimate stockpiling, and revenue on a 
cumulative basis'' (December 20, 1989; 54 FR 52092, 52095-6). West 
Virginia is proposing not to adopt the ``cumulative measurement 
period'' standard but, rather, will assess initial and continued 
eligibility for this exemption using data on an annual basis.
    West Virginia has chosen not to adopt the ``cumulative measurement 
period'' and therefore does not allow for the possibility of such 
operations becoming subject to and not subject to the jurisdiction of 
the Act, as may occur if data are assessed only on an annual basis. We 
find that while the State's decision not to use the ``cumulative 
measurement period'' eliminates the flexibility afforded by the Federal 
cumulative measurement provisions, that decision does not eliminate the 
assurance that the tonnage or revenue derived from coal mined under an 
exemption in West Virginia will not exceed 16\2/3\ percent of the total 
coal and other minerals mined as required by the Federal provisions. 
Furthermore, as provided by 24.7.a.2 and 24.7.b.2, a person receiving 
the exemption shall file a quarterly production report with the WVDEP 
no later than 30 days after the end of each quarter and an annual 
production report within 30 days after the end of each ``calendar'' 
year, respectively.
    As we noted above in Section II, the proposed rules differ from the 
final rules that are on file with the Secretary of State in some 
respects. The word ``calendar'' has been deleted at 24.7.b.2 as shown 
above in the rules that are on file with the Secretary of State. 
Nevertheless, we find this omission to be non-substantive, and the 
intent of this provision remains substantially the same. Therefore, we 
find that CSR 38-2-24 is no less effective than the Federal regulations 
at 30 CFR part 702 and can be approved. We should note that the 
implementation of the proposed provisions at CSR 38-2-24 will require 
the WVDEP to conduct various financial accounting and auditing 
activities to assess initial and continued eligibility of operations 
under this exemption. OSM is available to assist the WVDEP by providing 
training in the monitoring

[[Page 6588]]

and auditing of these kinds of operations.

Federal Provisions at 30 CFR Part 702 With No Direct State Counterparts

    The State amendments at CSR 38-2-24 concerning exemption for coal 
extraction incidental to extraction of other minerals do not contain 
counterparts to all the Federal provisions at 30 CFR part 702. Each 
instance in which the State lacks a specific Federal counterpart is 
discussed below.
    CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR 
702.12(o) concerning operations having extracted coal or other minerals 
prior to filing an application for an exemption. It is our 
understanding that West Virginia does not currently authorize coal 
removal for quarry operations. In addition, under the proposed 
amendments, quarry operations must obtain an exemption prior to the 
removal of coal. Therefore, we find that the lack of a counterpart to 
30 CFR 702.12(o) does not render the West Virginia program less 
effective than the Federal regulations at 30 CFR part 702.
    CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR 
702.15(c) concerning conducting operations in accordance with the 
approved application or when authorized to extract coal under 30 CFR 
702.11(b) or 702.11(e)(3) prior to submittal or approval of an 
exemption application in accordance with the provisions at CSR 38-2-24. 
We find that the lack of a counterpart to 30 CFR 702.15(c) does not 
render the proposed rules less effective than the Federal regulations 
for the following reasons. The Federal regulations at 30 CFR 702.11(b) 
concern existing operations that have commenced coal extraction prior 
to the effective date of the proposed State regulations. It is our 
understanding that West Virginia does not currently authorize coal 
removal for quarry operations, and under the proposed amendments, 
quarry operations must obtain an exemption prior to the removal of 
coal. Therefore, the West Virginia program does not need a counterpart 
to the Federal regulations at 30 CFR 702.11(b).
    The Federal regulations at 30 CFR 702.11(e)(3) concern coal removal 
by an applicant if the regulatory authority fails to provide the 
applicant with a determination within the time specified, unless the 
regulatory authority issues an interim finding that the applicant may 
not begin coal extraction. The State's counterpart to 30 CFR 
702.11(e)(3) providing for an interim finding is at CSR 38-2-24.1, and 
is no less effective than 30 CFR 702.11(e)(3).
    As we noted above, the State lacks a counterpart to the specific 
requirement at 30 CFR 702.15(c), which provides that a person 
conducting activities under an exemption shall conduct operations in 
accordance with the approved application. Although CSR 38-2-24 does not 
contain this specific provision, we believe that it is only logical 
that the proposed State rules implicitly require that an operator who 
has applied for and received an exemption under the proposed rules at 
CSR 38-2-24 or has applied for an exemption and more than 90 days has 
passed under CSR 38-2-24.1, shall conduct operations in accordance with 
the approved or pending application. It is also our understanding that 
under the proposed rules at CSR 38-2-24 an operator conducting 
activities to be covered by an exemption under that section will 
conduct such operations in accordance with CSR 38-2-24. Our finding 
that CSR 38-2-24 is not rendered less effective than the Federal 
regulations at 30 CFR part 702.15(c) is based upon our understandings 
discussed above. If, in future reviews, we should determine that West 
Virginia is implementing these provisions in a manner that is 
inconsistent with this finding, a further amendment may be required.
    CSR 38-2-24 has no counterparts to the Federal definitions of 
``annual production'' and ``annual revenue'' at 30 CFR 702.5(a) and 
(b), respectively. However, the proposed rules clearly require 
reporting starting with application approval, at the end of each 
calendar quarter pursuant to CSR 38-2-24.7.a.1, and at the end of each 
calendar year pursuant to CSR 38-2-24.7.b.1. Therefore, data will be 
collected commencing at application approval, and it will be reported 
both on a quarterly and annual basis. It is our understanding that the 
State will have available all the data it needs to accurately determine 
whether an exemption shall be continued or revoked. Therefore, we find 
that CSR 38-2-24 is not rendered less effective than the Federal 
regulations due to not having explicit definitions of ``annual 
production'' and ``annual revenue.''

IV. Summary and Disposition of Comments

Public Comments

    On May 12, 2004, we asked for public comments on the amendment 
(Administrative Record Number WV-1396). One person responded on three 
occasions (Administrative Record Numbers WV-1395, WV-1399 and WV-1407).
    The commenter criticized the 1872 Mining Law and stated that it 
desperately needs changing (Administrative Record Number WV-1407). One 
of the primary purposes of this law is to promote mineral exploration 
and development on Federal lands in the western United States. The 
commenter stated that it is time that strong State regulations are put 
in place to stop the 1872 law from being allowed to harm people and the 
environment in this country today. In response, we note that coal 
mining operations in West Virginia, and all other States as well, are 
not regulated by the 1872 General Mining law per se, but are regulated 
under SMCRA, a Federal law that was passed in 1977. Under SMCRA, 
individual States are authorized to establish and implement their own 
surface coal mining and reclamation programs if those programs are 
deemed to be no less stringent than SMCRA and no less effective than 
the Federal regulations that implement SMCRA. West Virginia administers 
its own surface coal mining regulatory program that was approved by the 
Secretary of the Department of the Interior in 1981.
    Under SMCRA, individual states with an approved surface coal mining 
regulatory program may amend their programs by sending to OSM copies of 
the State's proposed statutory and/or regulatory changes for review and 
approval by OSM. If OSM approves those amendments, they will become 
part of the approved State regulatory program. The amendments that we 
are approving in this notice today were submitted by the State, in 
accordance with applicable Federal regulations, for our approval prior 
to being added to the State's approved surface coal mining regulatory 
program. When we approve an amendment to a State's approved coal mining 
regulatory program, it is our judgment that the proposed amendments are 
no less stringent than SMCRA and no less effective than the counterpart 
Federal regulations at 30 CFR part 700 to end.
    The commenter also stated that an environmental performance bond of 
at least $25 million should be placed with the State before any work 
starts which guarantees environmental clean up (Administrative Record 
Number WV-1399). We believe this comment may address the State's 
amendment to CSR 38-2-14.15.g, which increases the bond amount per acre 
for operations seeking a variance under CSR 38-2-14.15.g, to the 
maximum amount specified at W. Va. Code 22-3-12(b)(1) ($5,000 per

[[Page 6589]]

acre). Under the Federal regulations at 30 CFR 800.14(b), the amount of 
a performance bond must be sufficient to assure the completion of the 
reclamation plan if the work has to be performed by the regulatory 
authority in the event of bond forfeiture, and in no case less than $10 
thousand for the entire area under one permit. Under the Federal 
regulations, therefore, the performance bond amount is not based upon a 
fixed bond amount, but rather it is based upon the acreage of the 
proposed permit and the estimated cost of completing the reclamation 
plan if the work has to be performed by the regulatory authority in the 
event of bond forfeiture. Under the State's proposed revision at CSR 
38-2-14.15.g, whenever a variance is sought under CSR 38-2-14.15.g, the 
site-specific bond amount per acre must be the maximum allowed under W. 
Va. Code 22-3-12(b)(1). This increase, while it may not result in a $25 
million total bond for any specific permit, will increase the bond 
monies available for reclamation on all permits requesting a variance 
under CSR 38-2-14.15.g. As we stated above at Finding 6, this proposed 
requirement would also help assure that the State's alternative bonding 
system will generate sufficient revenue to complete reclamation of bond 
forfeiture sites, including those with AOC variances. Therefore, we are 
approving the proposed amendment to CSR 38-2-14.15.g.
    The commenter provided several general statements disapproving of 
the way surface coal mining activities, including mountaintop removal 
mining operations, are being regulated within the State and by OSM 
(Administrative Record Numbers WV-1395, WV-1399, and WV-1407). The 
commenter stated a desire to protect trees, birds, wildlife and earth 
from mining, such as from flood damage and mountaintop removal mining, 
that the commenter stated is taking place today. The commenter stated 
that the postmining land must be left clean of toxins and residue. As 
we noted above, surface coal mining and reclamation activities in West 
Virginia are regulated under an approved State program that has been 
found to be no less stringent than SMCRA. The proposed State provisions 
at CSR 38-2-7.6 concerning forest land postmining land use and CSR 38-
2-7.7 concerning wildlife postmining land use were submitted by West 
Virginia to ensure that reclamation techniques and husbandry practices 
that promote productive forestlands and wildlife habitats are followed 
by surface coal mining operations within the State. We believe that 
these provisions, once implemented, will do much to enhance reclaimed 
mine lands in West Virginia and to quell the commenter's concerns.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the West Virginia program 
(Administrative Record Number WV-1391). We received comments from the 
U.S. Department of Labor, Mine Safety and Health Administration (MSHA). 
On May 15, 2004, MSHA stated that it found no changes or issues that 
impact upon coal miners' health and safety (Administrative Record 
Number WV-1398).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    By letter dated April 20, 2004, we requested comments and the 
concurrence from EPA on the State's program amendments (Administrative 
Record Number WV-1392). EPA responded by letter dated July 28, 2004, 
and stated that it had reviewed the revisions and determined that there 
are no apparent inconsistencies with the Clean Water Act or other 
statutes and regulations under the EPA's jurisdiction (Administrative 
Record Number WV-1402).

V. OSM's Decision

    Based on the above findings, we are approving, except as noted 
below, the program amendment West Virginia sent us on March 25, 2004. 
In addition, the required program amendment codified at 30 CFR 
948.16(oooo) is satisfied and can be removed, and the disapproval set 
forth at 30 CFR 948.12(a)(4) has been resolved.
    At CSR 38-2-7.6.e.1, we are not approving the word ``excessive.''
    At CSR 38-2-7.7.e.1, we are not approving the word ``excessive.''
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 948, which codify decisions concerning the West Virginia 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining

[[Page 6590]]

operations.'' Section 503(a)(1) of SMCRA requires that State laws 
regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

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

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is our decision is on a State 
regulatory program and does not involve Federal regulations involving 
Indian lands.

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

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior certifies that a portion of the 
provisions in this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) because they are based upon counterpart 
Federal regulations for which an economic analysis was prepared and 
certification made that such regulations would not have a significant 
economic effect upon a substantial number of small entities. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied upon the data and assumptions 
for the counterpart Federal regulations. The Department of the Interior 
also certifies that the provisions in this rule that are not based upon 
counterpart Federal regulations will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). This determination is based on 
the fact that the provisions are administrative and procedural in 
nature and are not expected to have a substantive effect on the 
regulated industry.

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 29, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.


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

PART 948--WEST VIRGINIA

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

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


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


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

* * * * *
    (h) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on March 25, 2004:
    (1) At CSR 38-2-7.6.e.1, the word ``excessive.''
    (2) At CSR 38-2-7.7.e.1, the word ``excessive.''

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


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

[[Page 6591]]



------------------------------------------------------------------------
                                     Date of        Citation/description
Original amendment  submission   publication  of        of approved
             date                   final rule           provisions
------------------------------------------------------------------------
 
                              * * * * * * *
March 25, 2004................  February 8, 2005.  CSR 38-2-3.12.a.1;
                                                    7.6 (except the word
                                                    ``excessive'' at
                                                    7.6.e.1); 7.7
                                                    (except the word
                                                    ``excessive'' at
                                                    7.7.e.1); 9.3.g;
                                                    14.15.a.1; 14.15.g;
                                                    20.1.a.6; 22.5.a; 23
                                                    (deleted); and 24.
                                                    Reduced Inspection
                                                    Frequency Policy
                                                    dated November 3,
                                                    2004.
------------------------------------------------------------------------


0
4. Section 948.16 is amended by removing and reserving paragraph 
(oooo).

[FR Doc. 05-2411 Filed 2-7-05; 8:45 am]
BILLING CODE 4310-05-P