[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Proposed Rules]
[Pages 50244-50257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17002]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-106-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of 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 proposes revisions to the Code of West Virginia (W. Va.
Code) and the Code of State Regulations (CSR) as authorized by several
bills passed during the State's 2005 Legislative Session. West Virginia
is also proposing an amendment that affects the State's regulations
concerning erosion protection zones (EPZ) associated with durable rock
fills. The State is revising its program to be consistent with certain
corresponding Federal requirements, and to include other amendments at
its own initiative. The amendments include, among other things, changes
to the State's surface mining and blasting regulations as authorized by
Committee Substitute for House Bill 2723; various statutory changes to
the State's approved program as a result of the passage of Committee
Substitute for House Bill 3033 and House Bills 2333 and 3236; the
submission of a draft policy regarding the State's EPZ requirement and
requesting that the Office of Surface Mining (OSM) reconsider its
previous decision concerning EPZ; State water rights and replacement
policy identifying the timing of water supply replacement; the revised
Permittee's Request For Release form; and the submission of a
Memorandum of Agreement (MOA) between the West Virginia Department of
Environmental Protection (WVDEP), Division of Mining and Reclamation,
and the West Virginia Division of Natural Resources, Wildlife Resources
Section that is intended to partially resolve a required program
amendment relating to planting arrangements for Homestead post-mining
land use.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on September 26, 2005. If requested, we will hold a
public hearing on the amendment on September 20, 2005. We will accept
requests to speak at a hearing until 4 p.m. (local time), on September
12, 2005.
ADDRESSES: You may submit comments, identified by WV-106-FOR, by any of
the following methods:
E-mail: [email protected]. Include WV-106-FOR in the subject
line of the message;
Mail/Hand Delivery: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia
25301; or
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading in the
SUPPLEMENTARY INFORMATION section of this document. You may also
request to speak at a public hearing by any of the methods listed above
or by contacting the individual listed under FOR FURTHER INFORMATION
CONTACT.
Docket: You may review copies of the West Virginia program, this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document at the addresses listed
below during normal business hours, Monday through Friday, excluding
holidays. You may also receive one free copy of this amendment by
contacting OSM's Charleston Field Office listed below.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail:
[email protected].
West Virginia Department of Environmental Protection, 601 57th
Street, SE, Charleston, West Virginia 25304, Telephone: (304) 926-0490.
In addition, you may review a copy of the amendment during regular
business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown
Area Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Telephone: (304) 347-7158. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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
[[Page 50245]]
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. Description of the Proposed Amendment
By letters dated June 13, 2005 (Administrative Record Numbers WV-
1419, WV-1420, and WV-1421), the WVDEP submitted amendments to its
program under SMCRA (30 U.S.C. 1201 et seq.). The amendments consist of
several bills passed during West Virginia's 2005 Legislative Session
and a draft policy concerning EPZ associated with durable rock fills.
House Bill (HB) 2333 amends the W. Va. Code by adding new Article
27 entitled the Environmental Good Samaritan Act (Sections 22-27-1
through 22-27-12). HB 2333 was adopted by the Legislature on March 24,
2005, and signed into law by the Governor on April 6, 2005, with an
effective date of June 22, 2005. In its letter, the WVDEP stated that
HB 2333 establishes a program to encourage voluntary reclamation of
lands adversely affected by mining activities by limiting the liability
that could arise as a result of the voluntary reclamation of abandoned
lands or reduction abatement of water pollution.
Committee Substitute for HB 2723 authorizes (at paragraph g)
amendments to the West Virginia Surface Mining Reclamation Rules at CSR
38-2 and (at paragraph i) amendments to the Surface Mining Blasting
Rule at CSR 199-1. This bill was passed by the Legislature on April 8,
2005, and approved by the Governor on May 3, 2005, with an effective
date from the date of passage. We note that some of the amendments to
CSR 38-2 and CSR 199-1 are intended to address required program
amendments that are codified in the Federal regulations at 30 CFR
948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll),
(ooooo), (ppppp), and (rrrrr).
Committee Substitute for HB 3033 amends the West Virginia Surface
Coal Mining and Reclamation Act (WVSCMRA) at W. Va. Code Section 22-3-
11 concerning the State's special reclamation tax. This bill was passed
by the Legislature on April 1, 2005, and signed by the Governor on
April 18, 2005, with an effective date of April 1, 2005. In its letter,
the WVDEP stated that HB 3033 extends the temporary special reclamation
tax that funds the State's alternative bonding system for an additional
18 months (at W. Va. Code 22-3-11(h)(1)) and provides additional duties
for the WVDEP Secretary in managing the State's alternative bonding
system (at W. Va. Code 22-3-11(h)(2), (3), and (4)). We note that OSM
previously approved West Virginia's temporary special reclamation tax
on December 28, 2001 (66 FR 67446), with additional modification on May
29, 2002 (67 FR 37610, 37613-37614). The State's current extension of
that temporary tax by an additional 18 months does not need OSM's
specific approval because the State has only lengthened the time period
of the temporary tax. Except as discussed below, the State has not
modified any duties or functions under the approved West Virginia
program, and the change is in keeping with the intent of our original
approvals. Therefore, we are not seeking public comment on the State's
extension of the temporary tax from thirty nine to fifty seven months
at W. Va. Code 22-3-11(h)(1). The extension took effect from the date
of passage of Committee Substitute for HB 3033, on April 1, 2005. In
addition, we are not seeking public comment on the State's new language
at W. Va. Code 22-3-(h)(3) and (h)(4). These new provisions only direct
the Secretary of the WVDEP to conduct various studies and authorize the
Secretary of the WVDEP to propose legislative rules concerning its
bonding program as appropriate. These provisions do not modify any
duties or functions under the approved West Virginia program and do
not, therefore, require OSM's approval. However, we are seeking public
comment on the State's provisions at W. Va. Code 22-3-11(h)(2)(A) and
(B). Under these new provisions, the WVDEP Secretary will be required
to pursue cost effective alternative water treatment strategies; and
conduct formal actuarial studies every two years and conduct informal
reviews annually on the Special Reclamation Fund.
HB 3236 amends the WVSCMRA by adding new W. Va. Code Section 22-3-
11a concerning the special reclamation tax, and adding new Section 22-
3-32a concerning the special tax on coal. HB 3236 was passed by the
Legislature on April 9, 2005, and approved by the Governor on May 2,
2005, with an effective date of April 9, 2005. HB 3236 provides that
the special reclamation tax and the special tax, which is used to
administer the State's approved regulatory program, are applicable to
thin seam coal, and the special reclamation tax is subject to the WV
Tax Crimes and Penalties Act and the WV Tax Procedure and
Administration Act.
In addition, WVDEP, submitted Committee Substitute for HB 3033
which contains strikethroughs and underscoring showing the actual
language that has been added and deleted from the WVSCMRA, as a result
of the passage of Enrolled Committee Substitute for HB 3033 discussed
above (Administrative Record Number WV-1422).
WVDEP submitted a MOA dated September 2003, between the WVDEP,
Division of Mining and Reclamation, and the West Virginia Division of
Natural Resources, Wildlife Resources Section (Administrative Record
Number WV-1405). This MOA outlines responsibilities of both agencies in
reviewing surface and underground coal mining permit applications;
evaluating lands unsuitable for mining petitions; developing wildlife
planting plans as part of reclamation plans of permit applications; and
restoring, protecting and enhancing fish and wildlife on mined lands
within the State. The MOA was developed in response to a 30 CFR Part
732 (Part 732) notification issued by OSM on March 6, 1990,
(Administrative Record Number WV-834) in which OSM stated that the
State program did not require that minimum stocking and planting
arrangements be specified by the regulatory authority on the basis of
local and regional conditions and after consultation with and approval
by State agencies responsible for the administration of forestry and
wildlife programs as required by 30 CFR 816/817.116(b)(3)(i). The West
Virginia Division of Forestry has concurred with the State's tree
stocking and groundcover standards at CSR 38-2-9.8.g. However, OSM
maintains that the Wildlife Resources Section still has to concur with
the wildlife planting arrangement standards. The WVDEP submitted the
MOA in response to that part of the outstanding Part 732 notification
and, as discussed below, to satisfy part of an outstanding required
amendment at 30 CFR 948.16(ooooo).
The Federal regulations at 30 CFR 948.16(ooooo) provide that the
WVDEP
[[Page 50246]]
must consult with and obtain the approval of the West Virginia Division
of Forestry and the Wildlife Resources Section of the West Virginia
Division of Natural Resources on the new stocking standards and
planting arrangements for Homesteading at CSR 38-2-7.5.o.2. The
submission of the MOA is to resolve the part of the required amendment
relating to planting arrangements. The State also revised its rules
earlier at CSR 38-2-9.3.g to provide that a professional wildlife
biologist employed by the Division of Natural Resources must develop
the planting plan. OSM approved that revision in the Federal Register
on February 8, 2005 (70 FR 6582). WVDEP advised OSM that it has
consulted with the Division of Forestry concerning the stocking
standards for Homesteading. According to WVDEP, the Division of
Forestry will be submitting a letter explaining its position with
regard to those stocking standards (Administrative Record Number WV-
1423). Upon receipt of the letter, it will be included in the
Administrative Record and made available for public review.
WVDEP also submitted the Permittee's Request for Release form dated
March 2005 (Administrative Record Number WV-1424). This form is being
submitted in response to an OSM Part 732 notification dated July 22,
1997 (Administrative Record Number WV-1071). In that notification, OSM
advised the State that the Federal regulations at 30 CFR 800.40(a)(3)
were amended to require that each application for bond release include
a written, notarized statement by the permittee affirming that all
applicable reclamation requirements specified in the permit have been
completed. OSM notified WVDEP that the State regulations at CSR 38-2-
12.2 do not contain such a requirement. In response, the State revised
its bond release form by adding new item Number 11, which requires that
all copies of the Permittee's Request For Release form include the
following: ``11. A notarized statement by the permittee that all
applicable reclamation requirements specified in the permit have been
completed.''
The full text of the program amendment is available for you to read
at the locations listed above under ADDRESSES.
Specifically, West Virginia proposes the following amendments.
1. House Bill 2333
HB 2333 amends the W. Va. Code by adding a new article Sections 22-
27-1 through 12 to provide as follows:
Article 27. Environmental Good Samaritan Act
22-27-1. Declaration of policy and purpose.
This article is intended to encourage the improvement of land
and water adversely affected by mining, to aid in the protection of
wildlife, to decrease soil erosion, to aid in the prevention and
abatement of the pollution of rivers and streams, to protect and
improve the environmental values of the citizens of this state and
to eliminate or abate hazards to health and safety. It is the intent
of the Legislature to encourage voluntary reclamation of lands
adversely affected by mining. The purpose of this article is to
improve water quality and to control and eliminate water pollution
resulting from mining extraction or exploration by limiting the
liability which could arise as a result of the voluntary reclamation
of abandoned lands or the reduction and abatement of water
pollution. This article is not intended to limit the liability of a
person who by law is or may become responsible to reclaim the land
or address the water pollution or anyone who by contract, order or
otherwise is required to or agrees to perform the reclamation or
abate the water pollution.
22-27-2. Legislative findings.
The Legislature finds and declares as follows:
(1) The state's long history of mining has left some lands and
waters unreclaimed and polluted.
(2) These abandoned lands and polluted waters are unproductive,
diminish the tax base and are serious impediments to the economic
welfare and growth of this state.
(3) The unreclaimed lands and polluted waters present a danger
to the health, safety and welfare of the people and the environment.
(4) The state of West Virginia does not possess sufficient
resources to reclaim all the abandoned lands and to abate the water
pollution.
(5) Numerous landowners, citizens, watershed associations,
environmental organizations and governmental entities who do not
have a legal responsibility to reclaim the abandoned lands or to
abate the water pollution are interested in addressing these
problems but are reluctant to engage in such reclamation and
abatement activities because of potential liabilities associated
with the reclamation and abatement activities.
(6) It is in the best interest of the health, safety and welfare
of the people of this state and the environment to encourage
reclamation of the abandoned lands and abatement of water pollution.
(7) That this act will encourage and promote the reclamation of
these properties.
22-27-3. Definitions.
As used in this article unless used in a context that clearly
requires a different meaning, the term:
(a) ``Abandoned lands'' means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition.
(b) ``Consideration'' means something of value promised, given
or performed in exchange for something which has the effect of
making a legally enforceable contract. For the purpose of this
article, the term does not include a promise to a landowner to
repair damage caused by a reclamation project or water pollution
abatement project when the promise is made in exchange for access to
the land.
(c) ``Department'' means the West Virginia department of
environmental protection.
(d) ``Eligible land'' means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition or causing water pollution and for which no
person has a continuing reclamation or water pollution abatement
obligation.
(e) ``Eligible landowner'' means a landowner that provides
access to or use of the project work area at no cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the
land.
(f) ``Eligible project sponsor'' means a person that provides
equipment, materials or services at no cost or at cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the
land.
(g) ``Landowner'' means a person who holds either legal or
equitable interest in real property.
(h) ``Mineral'' means any aggregate or mass of mineral matter,
whether or not coherent, which is extracted by mining. This
includes, but is not limited to, limestone, dolomite, sand, gravel,
slate, argillite, diabase, gneiss, micaceous sandstone known as
bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore,
vermiculite, clay and anthracite and bituminous coal.
(i) ``Permitted activity site'' means a site permitted by the
department of environmental protection under the provisions of
article two, three or four of this chapter.
(j) ``Person'' means a natural person, partnership, association,
association members, corporation, an agency, instrumentality or
entity of federal or state government or other legal entity
recognized by law as the subject of rights and liabilities.
(k) ``Project work area'' means that land necessary for a person
to complete a reclamation project or a water pollution abatement
project.
(l) ``Reclamation project'' means the restoration of eligible
land to productive use by regrading and revegetating the land to
stable contours that blend in and complement the drainage pattern of
the surrounding terrain with no highwalls, spoil piles or
depressions to accumulate water, or to decrease or eliminate
discharge of water pollution.
(m) ``Water pollution'' means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of water located in the state.
(n) ``Water pollution abatement facilities'' means the methods
for treatment or abatement of water pollution located on
[[Page 50247]]
eligible lands. These methods include, but are not limited to, a
structure, system, practice, technique or method constructed,
installed or followed to reduce, treat or abate water pollution.
(o) ``Water pollution abatement project'' means a plan for
treatment or abatement of water pollution located on eligible lands.
22-27-4. Eligibility and project inventory.
(a) General rule.--An eligible landowner or eligible project
sponsor who voluntarily provides equipment, materials or services at
no charge or at cost for a reclamation project or a water pollution
abatement project in accordance with the provisions of this article
is immune from civil liability and may raise the protections
afforded by the provisions of this article in any subsequent legal
proceeding which is brought to enforce environmental laws or
otherwise impose liability. An eligible landowner or eligible
project sponsor is only entitled to the protections and immunities
provided by this article after meeting all eligibility requirements
and compliance with a detailed written plan of the proposed
reclamation project or water pollution abatement project which is
submitted to and approved by the department. The project plan shall
include the objective of the project and a description of the work
to be performed to accomplish the objective and shall, additionally,
identify the project location, project boundaries, project
participants and all landowners.
(b) Notice.--The department shall give written notice by
certified mail to adjacent property owners and riparian land owners
located downstream of the proposed project, provide Class IV public
notice of the proposed project in a newspaper of general
circulation, published in the locality of the proposed project, and
shall give public notice in the state register. The project sponsor
may also provide public notice. Any person having an interest which
may be adversely affected by the proposed project has the right to
file written objections to the department within thirty days after
receipt of the written notice or within thirty days after the last
publication of the Class IV notice. The department shall provide to
the project sponsor a copy of each written objection received during
the public comment period, which shall conclude at the expiration of
the applicable thirty-day period provided for in this section.
(c) Advice.--The department may provide advice to the landowner
or to other interested persons based upon the department's knowledge
and experience in performing reclamation projects and water
pollution abatement projects.
(d) Departmental review.--The department shall review each
proposed reclamation project and approve the project if the
department determines the proposed project:
(1) Will result in the appropriate reclamation and regrading of
the land according to all applicable laws and regulations;
(2) Will result in the appropriate revegetation of the site;
(3) Is not likely to result in pollution as defined in article
eleven of this chapter; and
(4) Is likely to improve the water quality and is not likely to
make the water pollution worse.
(e) Project inventory.--The department shall develop and
maintain a system to inventory and record each project, the project
location and boundaries, each landowner and each person identified
in a project plan provided to the department. The inventory shall
include the results of the department's review of the proposed
project and, where applicable, include the department's findings
under subsection (b), section ten of this article.
(f) Appeal.--A person aggrieved by a department decision to
approve or disapprove a reclamation project or a water pollution
abatement project has the right to file an appeal with the
environmental quality board under the provisions of article one,
chapter twenty-two-b of this code.
22-27-5. Landowner liability limitation and exceptions.
(a) General rule.--Except as specifically provided in
subsections (b) and (c) of this section, an eligible landowner who
provides access to the land, without charge or other consideration,
which results in the implementation of a reclamation project or a
water pollution abatement project:
(1) Is immune from liability for any injury or damage suffered
by persons working under the direct supervision of the project
sponsor while such persons are within the project work area;
(2) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of an act or omission of the project sponsor which occurs during the
implementation of the reclamation project or the water pollution
abatement project;
(3) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of a reclamation project or a water pollution abatement project;
(4) Is immune from liability for any pollution resulting from a
reclamation project or water pollution abatement project;
(5) Is immune from liability for the operation, maintenance or
repair of the water pollution abatement facilities constructed or
installed during the project unless the eligible landowner
negligently damages or destroys the water pollution abatement
facilities or denies access to the project sponsor who is
responsible for the operation, maintenance or repair the water
pollution abatement facilities.
(b) Duty to warn.--The eligible landowner shall warn the project
sponsor of known, latent, dangerous conditions located on the
project work area which are not the subject of the reclamation
project or the water pollution abatement project. Nothing in this
article shall limit an eligible landowner's liability which results
from the eligible landowner's failure to warn of such known, latent,
dangerous conditions.
(c) Exceptions to immunity.--Nothing in this article may limit
an eligible landowner's liability which results from a reclamation
project or water pollution abatement project and which would
otherwise exist:
(1) For injury or damage resulting from the landowner's acts or
omissions which are reckless or constitute gross negligence or
willful misconduct.
(2) Where the landowner accepts or requires consideration for
allowing access to the land for the purpose of implementing a
reclamation project or water pollution abatement project or to
operate, maintain or repair water pollution abatement facilities
constructed or installed during a water pollution abatement project.
(3) For the landowner's unlawful activities.
(4) For damage to adjacent landowners or downstream riparian
landowners which results from a reclamation project or water
pollution abatement project where written notice or public notice of
the proposed project was not provided.
22-27-6. Project sponsor liability limitation and exceptions.
(a) General rule.--Except as specifically provided in subsection
(b) of this section, a project sponsor who provides equipment,
materials or services at no cost or at cost for a reclamation
project or a water pollution abatement project:
(1) Is immune from liability for any injury to or damage
suffered by a person which arises out of or occurs as a result of
the water pollution abatement facilities constructed or installed
during the water pollution abatement project;
(2) Is immune from liability for any pollution emanating from
the water pollution abatement facilities constructed or installed
during the water pollution abatement project unless the person
affects an area that is hydrologically connected to the water
pollution abatement project work area and causes increased pollution
by activities which are unrelated to the implementation of a water
pollution abatement project, Provided that the project sponsor
implements, operates, and maintains the project in accordance with
the plans approved by the department;
(3) Is immune from liability for the operation, maintenance and
repair of the water pollution abatement facilities constructed or
installed during the water pollution abatement project.
(b) Exceptions.--
(1) Nothing in this article shall limit in any way the liability
of a project sponsor which liability results from the reclamation
project or the water pollution abatement project and which would
otherwise exist:
(A) For injury or damage resulting from the project sponsor's
acts or omissions which are reckless or constitute gross negligence
or willful misconduct.
(B) For the person's unlawful activities.
(C) For damages to adjacent landowners or downstream riparian
landowners which result from a reclamation project or a water
pollution abatement project where written notice or public notice of
the proposed project was not provided.
(2) Nothing in this article shall limit in any way the liability
of a person who the department has found to be in violation of any
other provision or provisions of this chapter.
22-27-7. Permits and zoning.
Nothing in this article may be construed as waiving any existing
permit requirements or waiving any local zoning requirements.
22-27-8. Relationship to federal and state programs.
[[Page 50248]]
The provisions of this article shall not prevent the department
from enforcing requirements necessary or imposed by the Federal
Government as a condition to receiving or maintaining program
authorization, delegation, primacy or federal funds.
22-27-9. General permits.
If the department determines it will further the purposes of
this article, the department may issue a general permit for each
reclamation project or water pollution abatement project, which
shall:
(1) Encompass all of the activities included in the reclamation
project or water pollution abatement project.
(2) Be issued in place of any individual required stream
encroachment, earth disturbance or national pollution discharge
elimination system permits.
22-27-10. Exceptions.
(a) General rule.--Any person who under existing law shall be or
may become responsible to reclaim the land or treat or abate the
water pollution or any person who for consideration or who receives
some other benefit through a contract or any person who through a
consent order and agreement or is ordered to perform or complete
reclamation or treat or abate water pollution as well as a surety
which provided a bond for the site is not eligible nor may receive
the benefit of the protections and immunities available under this
article.
(b) Projects near mining or coal refuse sites.--This article
does not apply to a reclamation project or a water pollution
abatement project that is located adjacent to, hydrologically
connected to or in close proximity to a site permitted under
articles two, three or four of this chapter unless:
(1) The reclamation project or water pollution abatement project
is submitted to the department in writing before the project is
started; and
(2) The department finds:
(A) The reclamation project or the water pollution abatement
project will not adversely affect the permittee's obligations under
the permit and the applicable law;
(B) The activities on the project work area cannot be used by
the permittee to avoid the permittee's reclamation or water
pollution treatment or abatement obligations; and
(3) The department issues a written notice of its findings and
the approval of the project.
(c) Projects in lieu of civil or administrative penalties.--This
article shall not apply to a reclamation project or a water
pollution abatement project that is performed in lieu of paying
civil or administrative penalties.
22-27-11. Water supply replacement.
A public or private water supply affected by contamination or
the diminution caused by the implementation of a reclamation project
or the implementation of a water pollution abatement project shall
be restored or replaced by the department with an alternate source
of water adequate in quantity and quality for the purposes served by
the water supply.
22-27-12. Rules.
The department may propose legislative rules in accordance with
article three, chapter twenty-nine-a of this code as needed to
implement the provisions of this article.
2. Committee Substitute for House Bill 2723
This bill authorizes amendments to the West Virginia Surface Mining
Reclamation Rules at CSR 38-2 and the Surface Mining Blasting Rule at
CSR 199-1.
Amendments to CSR 38-2
a. CSR 38-2-2.92. This definition is new, and provides as follows:
2.92 Previously mined areas means land affected by surface
mining operations prior to August 3, 1977, that has not been
reclaimed to the standards of this rule.
In its amendment, the WVDEP stated that the revision is intended to
resolve an outstanding Part 732 issue relating to previously mined
areas.
b. CSR 38-2-3.29.a. This provision concerns incidental boundary
revisions (IBRs) and is amended by deleting the following language from
the end of the first sentence: ``is the only practical alternative to
recovery of unanticipated reserves or necessary to enhance reclamation
efforts or environmental protection.''
In its submittal of this amendment, the WVDEP stated that the
amendment in intended to delete language that was not approved by OSM
(see the February 9, 1999, Federal Register, 64 FR 6201, at Finding 10,
page 6208).
As amended, CSR 38-2-3.29.a provides as follows:
3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to
minor shifts or extensions of the permit boundary into non-coal
areas or areas where any coal extraction is incidental to or of only
secondary consideration to the intended purpose of the IBR or where
it has been demonstrated to the satisfaction of the Secretary that
limited coal removal on areas immediately adjacent to the existing
permit. IBRs shall also include the deletion of bonded acreage which
is overbonded by another valid permit and for which full liability
is assumed in writing by the successive permittee. Incidental
Boundary Revisions shall not be granted for any prospecting
operations, or to abate a violation where encroachment beyond the
permit boundary is involved, unless an equal amount of acreage
covered under the IBR for encroachment is deleted from the permitted
area and transferred to the encroachment area.
c. CSR 38-2-5.4.a. This provision concerns general sediment control
provisions, and is amended by adding language to incorporate by
reference the U.S. Department of Agriculture, Soil Conservation Service
(now known as the Natural Resources Conservation Service), Technical
Release No. 60, ``Earth Dams and Reservoirs.'' As amended, Subsection
5.4.a provides as follows:
Sediment control or other water retention structures shall be
constructed in appropriate locations for the purposes of controlling
sedimentation. All runoff from the disturbed area shall pass through
a sedimentation control system. All such systems or other water
retaining structures used in association with the mining operation
shall be designed, constructed, located, maintained, and used in
accordance with this rule and in such a manner as to minimize
adverse hydrologic impacts in the permit and adjacent areas, to
prevent material damage outside the permit area and to assure safety
to the public. The U.S. Department of Agriculture, Soil Conservation
Service Technical Release No. 60 (210-VI-TR60, October 1985),
``Earth Dams and Reservoirs,'' Technical Release No. 60 (TR-60) is
hereby incorporated by reference. Copies may be obtained from the
National Technical Information Service (NTIS), 5285 Port Royal Road,
Springfield, Virginia 22161, order No. PB 87-57509/AS. Copies can be
inspected at the OSM Headquarters Office, Office of Surface Mining
Reclamation and Enforcement, Administrative Record, 1951
Constitution Avenue, NW., Washington, DC, or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
d. CSR 38-2-5.4.b.9. This provision concerns freeboard of sediment
control structures, and is amended by adding a proviso that
impoundments meeting the Class B or C criteria for dams in ``Earth Dams
and Reservoirs'', TR-60 shall comply with the freeboard hydrograph
criteria in ``Minimum Emergency Spillway Hydrologic Criteria'' table in
TR-60. As amended, Subsection 5.4.b.9 provides as follows:
5.4.b.9. Provide adequate freeboard to resist overtopping by
waves or sudden increases in volume and adequate slope protection
against surface erosion and sudden drawdown. Provided, however,
impoundments meeting the Class B or C criteria for dams in ``Earth
Dams and Reservoirs'', TR-60 shall comply with the freeboard
hydrograph criteria in ``Minimum Emergency Spillway Hydrologic
Criteria'' table in TR-60.
e. CSR 38-2-5.4.b.10. This provision concerns minimum static safety
factor, and has been amended by deleting language in the first sentence
related to loss of life or property damage, and adding in its place
language concerning impoundments meeting the Class B or C criteria for
dams contained in ``Earth Dams and Reservoirs,'' TR-60. As amended,
Subsection 5.4.b.10 provides as follows:
5.4.b.10. Provide that an impoundment meeting the size or other
criteria of 30 CFR 77.216(a) or W. Va. Code [Section] 22-14 et seq.,
or Impoundments meeting the Class B or C criteria for dams contained
in ``Earth Dams and Reservoirs'', TR-60, shall have a minimum static
safety factor of 1.5 for a normal pool with steady state seepage
[[Page 50249]]
saturation conditions, and a seismic safety factor of at least 1.2.
Impoundments not meeting the size or other criteria of 30 CFR 77.216
(a) or W. Va. Code [Section] 22-14 et seq., except for a coal mine
waste impounding structure, and located where failure would not be
expected to cause loss of life or serious property damage shall have
a minimum static safety factor of 1.3 for a normal pool with steady
state seepage saturation conditions.
f. CSR 38-2-5.4.b.12. This provision concerns stable foundations of
sediment control structures, and has been amended by adding language at
the end of the final sentence to clarify that the laboratory testing of
foundation material shall be performed to determine the design
requirements for foundation stability. As amended, Subsection 5.4.b.12
provides as follows:
5.4.b.12. Provide for stable foundations during all phases of
construction and operation and be designed based on adequate and
accurate information on the foundation conditions. For structures
meeting the criteria of paragraph 5.4.b.10 of this subdivision,
provide foundation investigations and any necessary laboratory
testing of foundation material, shall be performed to determine the
design requirements for foundation stability.
g. CSR 38-2-5.4.c.7. This provision is new and provides as follows:
5.4.c.7. Impoundments meeting the Class B or C criteria for dams
in Earth Dams and Reservoirs, TR-60 shall comply with the following:
(1) ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-
60; (2) the emergency spillway hydrograph criteria in the ``Minimum
Emergency Spillway Hydrologic Criteria'' table in TR-60, or larger
event specified by the Secretary; and (3) and the requirements of
this subdivision.
h. CSR 38-2-5.4.d.4. This provision, concerning design and
construction certification of coal refuse impoundments and embankment
type impoundments, has been amended by adding language concerning
impoundments meeting the Class B or C criteria for dams. As amended,
Subsection 5.4.d.4 provides as follows:
5.4.d.4. Design and construction certification of coal refuse
impoundments and embankment type impoundments meeting or exceeding
the size requirements or other criteria of Federal MSHA regulations
at 30 CFR 77.216 (a) or impoundments meeting the Class B or C
criteria for dams in Earth Dams and Reservoirs, TR-60 may be
performed only by a registered professional engineer experienced in
the design and construction of impoundments.
i. CSR 38-2-5.4.e.1. This provision concerns the inspection of
impoundments and sediment control structures, and has been amended by
adding language concerning impoundments meeting the Class B or C
criteria for dams. As amended, Subsection 5.4.e.1 provides as follows:
5.4.e.1. A qualified registered professional engineer or other
qualified professional specialist, under the direction of the
professional engineer, shall inspect each impoundment or sediment
control structure provided, that a licensed land surveyor may
inspect those impoundments or sediment control or other water
retention structures which do not meet the size or other criteria of
30 CFR 77.216(a), Impoundments meeting the Class B or C criteria for
dams in Earth Dams and Reservoirs, TR-60 or W. Va. Code [Section]
22-14 et seq., and which are not constructed of coal processing
waste or coal refuse. The professional engineer, licensed land
surveyor, or specialist shall be experienced in the construction of
impoundments and sediment control structures.
j. CSR 38-2-5.4.f. This provision concerns examinations of
embankments, and has been amended by adding language concerning
impoundments meeting the Class B or C criteria for dams. As amended,
Subsection 5.4.f provides as follows:
5.4.f. Examinations. Embankments subject to Federal MSHA
regulations at 30 CFR 77.216 or impoundments meeting the Class B or
C criteria for dams in Earth Dams and Reservoirs, TR-60 must be
examined in accordance with 77.216-3 of said regulations. Other
embankments shall be examined at least quarterly by a qualified
person designated by the operator for appearance of structural
weakness and other hazardous conditions. Examination reports shall
be retained for review at or near the operation.
In its submittal of the amendments concerning sediment control or
other water retention structures, the WVDEP stated that the amendments
are intended to resolve the outstanding Part 732 issue that
impoundments meeting the Class B or C criteria for dams in Earth Dams
and Reservoirs, TR-60, comply with (1) the freeboard criteria in TR-60,
(2) have a minimum static safety factor of 1.5 for a normal pool with
steady-state seepage saturation conditions, and a seismic safety factor
of at least 1.2, (3) emergency spillway hydrologic criteria and the
emergency spillway hydrograph criteria in TR-60, and (4) specify the
certification, inspections, and examinations of requirements of these
structures (see the Part 732 letter dated July 22, 1997, Administrative
Record Number WV-1071). The WVDEP stated that the Federal counterpart
is found in 30 CFR 816.49 concerning impoundments.
k. CSR 38-2-7.4.b.1.A.1. This provision concerns the development of
a planting plan and long-term management plan for commercial forestry.
The first sentence of this provision is amended by clarifying that the
professional forester must be a West Virginia registered professional
forester.
l. CSR 38-2-7.4.b.1.A.3. This provision concerns the commercial
species plan for commercial forestry and is amended in the first
sentence to clarify that the registered professional forester must be a
West Virginia registered professional forester.
m. CSR 38-2-7.4.b.1.A.3.(b). This provision concerns the creation
of a certified geology map relating to commercial forestry areas. The
provision is amended by revising the kinds of information pertaining to
physical and chemical properties of strata that must be provided in the
permit application. As amended, Subsection 7.4.b.1.A.3.(b) provides as
follows:
7.4.b.1.A.3.(b). An approved geologist shall create a certified
geology map showing the location, depth, and volume of all strata in
the mined area, the physical and chemical properties of each stratum
to include rock texture, pH, potential acidity and alkalinity. For
each stratum proposed as soil medium, the following information
shall also be provided: total soluble salts, degree of weathering,
extractable levels of phosphorus, potassium, calcium, magnesium,
manganese, and iron and other properties required by the Secretary
to select best available materials for mine soils.
In its submittal of its amendment to this provision, the WVDEP
stated that the amendment is to clarify that only the material proposed
to be the resulting soil medium needs the additional analysis.
n. CSR 38-2-7.4.b.1.A.4. This provision concerns the commercial
forestry long-term management plan and is amended in the first sentence
by adding the words ``West Virginia'' immediately before the words
``registered professional forester.''
o. CSR 38-2-7.4.b.1.B.1. This provision concerns a commercial
forestry and forestry reclamation plan, and is amended by deleting the
word ``certified'' immediately before the phrase ``professional soil
scientist'' in the first sentence.
In its submittal of its amendment to this provision, the WVDEP
stated that the word ``certified'' is being deleted because West
Virginia does not have a certification system for soil scientist.
p. CSR 38-2-7.4.b.1.C.1. This provision concerns commercial
forestry areas, and is amended by adding the word ``areas'' immediately
following the words ``commercial forestry'' in the first sentence, and
by revising the standards for slopes of the postmining landform. As
amended, Subsection 7.4.b.1.C.1 provides as follows:
[[Page 50250]]
7.4.b.1.C.1. For commercial forestry areas, the Secretary shall
assure that the postmining landscape is rolling, and diverse. The
backfill on the mine bench shall be configured to create a
postmining topography that includes the principles of land forming
(e.g., the creation of swales) to reflect the premining
irregularities in the land. Postmining landform shall provide a
rolling topography with slopes between 5% and 20% with an average
slope of 10% to 15%. The elevation change between the ridgeline and
the valleys shall be varied. The slope lengths shall not exceed 500
feet. The minimum thickness of backfill, including mine soil, placed
on the pavement of the basal seam mined in any particular area shall
be ten (10) feet.
q. CSR 38-2-7.4.b.1.C.2. This provision concerns commercial
forestry areas and is amended by adding the word ``areas'' immediately
after the phrase ``commercial forestry'' in the first sentence.
r. CSR 38-2-7.4.b.1.C.3. This provision concerns commercial
forestry areas and is amended by deleting the words ``in areas'' in the
first sentence adding the word ``areas'' in their place.
s. CSR 38-2-7.4.b.1.C.4. This provision concerns commercial
forestry areas and is amended by adding the word ``areas'' immediately
following the words ``commercial forestry'' in the first sentence. In
addition, the first sentence is also amended by deleting the word
``permitted'' and replacing that word with the words ``commercial
forestry.''
t. CSR 38-2-7.4.b.1.C.5. This provision concerns forestry areas and
is amended by adding the word ``areas'' immediately after the word
``forestry'' in the first sentence.
The WVDEP stated in its submittal that this change has been made to
``address a concern of the QA/QC Panel that the Configuration of
regrade area is still too flat (Reference: Directors Meeting October
15, 2003).''
u. CSR 38-2-7.4.b.1.D.6. This provision concerns soil substitutes,
and is amended by adding the words ``and is in accordance with 14.3.c
of this rule'' at the end of the first sentence. As amended, the first
sentence at CSR 38-2-7.4.b.1.D.6 provides as follows:
7.4.b.1.D.6. Before approving the use of soil substitutes, the
Secretary shall require the permittee to demonstrate that the
selected overburden material is suitable for restoring land
capability and productivity and is in accordance with 14.3.c of this
rule.
The WVDEP stated in its submittal that this change has been made to
comply with the required program amendment codified in the Federal
regulations at 30 CFR 948.16(wwww). The Federal regulations at 30 CFR
948.16(wwww) provide that CSR 38-2-7.4.b.1.D.6 be amended to provide
that the substitute material is equally suitable for sustaining
vegetation as the existing topsoil and the resulting medium is the best
available in the permit area to support vegetation.
v. CSR 38-2-7.4.b.1.D.8. This provision concerns the final surface
material used as the commercial forestry mine soil and has been amended
in the first sentence by adding the word ``areas'' immediately after
the phrase ``[f]or commercial forestry.''
w. CSR 38-2-7.4.b.1.D.9. This provision concerns the final surface
material used as the forestry mine soil and has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or forestry.''
x. CSR 38-2-7.4.b.1.D.11. This provision concerns forestry mine
soil, and has been amended by adding the phrase ``except for valley
fill faces'' at the end of the sentence. As amended, Subsection
7.4.b.1.D.11 provides that ``[f]orestry mine soil shall, at a minimum,
be placed on all areas achieving AOC, except for valley fill faces.''
In its submittal, the WVDEP stated that the amendment is intended
to provide clarification.
y. CSR 38-2-7.4.b.1.H.1. This provision concerns tree species and
compositions for commercial forestry areas and forestry areas. The list
of hardwoods in this provision is amended by deleting ``white and red
oaks, other native oaks'' and adding in their place ``white oak,
chestnut oak, northern red oak, and black oak'' and by adding the words
``basswood, cucumber magnolia'' to the list. In addition, the word
``areas'' is added immediately following the words ``[f]or forestry''
in the third sentence. In addition, the list of hardwoods for forestry
areas is amended by deleting the words ``white and red oaks, other
native oaks'' and adding in their place the words ``white oak, chestnut
oak, northern red oak, black oak,'' and by adding ``basswood'' and
``cucumber magnolia'' to the list. As amended, Subsection 7.4.b.1.H.1
provides as follows:
7.4.b.1.H.1. Commercial tree and nurse tree species selection
shall be based on site-specific characteristics and long-term goals
outlined in the forest management plan and approved by a registered
professional forester. For commercial forestry areas, the Secretary
shall assure that all areas suitable for hardwoods are planted with
native hardwoods at a rate of 500 seedlings per acre in continuous
mixtures across the permitted area with at least six (6) species
from the following list: white oak, chestnut oak, northern red oak,
black oak, white ash, yellow-poplar, basswood, cucumber magnolia,
black walnut, sugar maple, black cherry, or native hickories. For
forestry areas, the Secretary shall assure that all areas suitable
for hardwoods are planted with native hardwoods at a rate of 450
seedlings per acre in continuous mixtures across the permitted area
with at least three (3) or four (4) species from the following list:
white oak, chestnut oak, northern red oak, black oak, white ash,
yellow-poplar, basswood, cucumber magnolia, black walnut, sugar
maple, black cherry, or native hickories.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment is intended to provide clarification for oaks
and mixtures.
z. CSR 38-2-7.4.b.1.H.2. This provision has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or commercial forestry.''
aa. CSR 38-2-7.4.b.1.H.6. This provision has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or commercial forestry.''
bb. CSR 38-2-7.4.b.1.I.1. Subsection 7.4.b.1.I.1 has been amended
in the last sentence by deleting the word ``certified'' immediately
before the words ``soil scientist'' and adding in its place the word
``professional.'' As amended, the sentence provides as follows:
``[b]efore approving Phase I bond release, a professional soil
scientist shall certify, and the Secretary shall make a written finding
that the mine soil meets these criteria.''
cc. CSR 38-2-7.4.b.1.I.2. Subsection 7.4.b.1.I.2 has been amended
in two places by adding the word ``areas.'' The first sentence has been
amended by adding the word ``areas'' immediately after the phrase ``for
commercial forestry.'' The second from last sentence has been amended
by adding the word ``areas'' immediately after the phrase ``both
commercial forestry and forestry.''
dd. CSR 38-2-7.4.b.1.I.3. Subsection 7.4.b.1.I.3 has been amended
in three places by adding the word ``areas.'' The first sentence has
been amended by adding the word ``areas'' immediately after the phrase
``for commercial forestry and forestry.'' The second sentence has been
amended by adding the word ``areas'' immediately after the words
``[f]or forestry.'' The third sentence has been amended by adding the
word ``areas'' immediately after the phrase ``for commercial
forestry.''
ee. CSR 38-2-7.4.b.1.I.4. This provision concerns a commercial
forestry mitigation plan, and has been amended in the last sentence by
adding the phrase ``and the site meets the standards of 9.3.h of this
rule'' at the end of the sentence. In addition, the word ``and'' has
been deleted in the last sentence immediately after the phrase ``follow
the provisions of this rule'' and
[[Page 50251]]
that word has been replaced by a semicolon.
In its submittal of the amendment to this provision, the WVDEP
stated that in an August 18, 2000, Federal Register notice (65 FR
50409, see pages 50423 and 50424), OSM stated that the requirement to
pay twice the remaining bond is approved to the extent that payment of
the civil penalty will not allow an other to receive final release. The
WVDEP stated that the remainder of 7.4.1.I.4 was not approved.
ff. CSR 38-2-7.4.b.1.J. This provision concerns the front faces of
valley fills and has been amended by deleting existing Subsections
7.4.b.1.J.1.(b) and (c) and re-designating existing Subsections
7.4.b.1.J.1.(d) and (e) as new Subsections 7.4.b.1.J.1.(b) and (c). As
amended, Subsection 7.4.b.1.J. provides as follows:
7.4.b.1.J. Front Faces of Valley Fills.
7.4.b.1.J.1. Front faces of valley fills shall be exempt from
the requirements of this rule except that:
7.4.b.1.J.1.(a). They shall be graded and compacted no more than
is necessary to achieve stability and non-erodability;
7.4.b.1.J.1.(b). The groundcover mixes described in subparagraph
7.4.d.b.1.G. shall be used unless the Secretary requires a different
mixture;
7.4.b.1.J.1.(c) Kentucky 31 fescue, serecia lespedeza, vetches,
clovers (except ladino and white clover) or other invasive species
may not be used; and
7.4.b.1.J.2. Although not required by this rule, native, non-
invasive trees may be planted on the faces of fills.
In its submittal of this provision, the WVDEP stated that this
provision was amended to remove language that contradicts other parts
of CSR 38-2-7.4.
gg. CSR 38-2-7.5.a. Section CSR 38-2-7.5 concerns Homestead
postmining land use. Subsection CSR 38-2-7.5.a has been amended by
adding a new sentence to the end of the existing language. As amended,
CSR 38-2-7.5.a provides as follows:
7.5.a. Operations receiving a variance from AOC for this use
shall establish homesteading on at least one half (\1/2\) of the
permit area. The remainder of the permit area shall support an
alternate AOC variance use. The acreage considered homesteading
shall be the sum of the acreage associated with the following: the
civic parcel; the commercial parcel; the conservation easement; the
homestead parcel; the rural parcel and any required infrastructure.
We note that this revision is intended to comply with the required
program amendment codified in the Federal regulations at 30 CFR 948.16
(rrrrr). The requirement at 30 CFR 948.16 (rrrrr) provides for the
amendment of: (1) CSR 38-2-7.5.a to clarify whether or not the
calculated acreage of the Commercial Parcel(s) is to be summed with the
total Homestead acreage for the purpose of calculating the acreage of
other various components of the Homestead Area (such as Common Lands,
Village Parcels, Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4
to clarify whether or not the acreage for Public Nursery is to be
calculated based on the amount of acreage available for the Village
Homestead, the Civil Parcel, or the entire Homestead Area (see Item
2(mm) below).
hh. CSR 38-2-7.5.b.3. This provision concerns the definition of
``Commercial parcel,'' and has been amended by deleting the word
``regulation'' in the last sentence and replacing that word with the
word ``rule.'' In addition, a new sentence has been added to the end of
the provision. As amended, Subsection 7.5.b.3 provides as follows:
7.5.b.3. Commercial parcel means a parcel retained by the
landowner of record and incorporated within the homestead area on
which the landowner or its designee may develop commercial uses. The
size and location of commercial parcels shall comply with the
requirements of this rule. Provided, however, parcels retained by
the landowner for commercial development and incorporated within the
Homestead area must be developed for commercial uses as provided by
subdivision 7.5.g.5 of this rule.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(fffff).
The requirement at 30 CFR 948.16(fffff) provides that CSR 38-2-7.5.b.3
be amended, or the West Virginia program otherwise be amended, to
clarify that parcels retained by the landowner for commercial
development and incorporated within the Homestead area must be
developed for commercial uses as provided by Subsection CSR 38-2-
7.5.g.5.
ii. CSR 38-2-7.5.i.10. This provision concerns wetlands associated
with Homestead areas, and is amended by adding a new sentence
immediately following the existing first sentence. As amended,
Subsection 7.5.i.10 provides as follows:
7.5.i.10. Wetlands. Each homestead plan may describe areas
within the homestead area reserved for created wetlands. The created
wetlands shall comply with the requirements of 3.5 of this rule.
These created wetlands may be ponds, permanent impoundments or
wetlands created during mining. They may be left in place after
final bond release. Any pond or impoundment left in place is subject
to requirements under subsection 5.5 of this rule.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(iiiii).
The requirement at 30 CFR 948.16(iiiii) provides that CSR 38-2-7.5.i.10
be amended, or the West Virginia program otherwise be amended, to
require compliance with the permit requirements at CSR 38-2-3.5.d.
jj. CSR 38-2-7.5.j.3.A. This provision concerns the definition of
soil in relation to Homestead areas, and is amended in the first
sentence by adding the soil horizon ``E'' between soil horizons ``A''
and ``B.''
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(jjjjj).
The requirement at 30 CFR 948.16(jjjjj) provides that CSR 38-2-
7.5.j.3.A be amended by adding an ``E'' horizon.
kk. CSR 38-2-7.5.j.3.B. This provision concerns the recovery and
use of soil on Homestead areas, and is amended by deleting the
exception that is stated in the first sentence. As amended, Subsection
7.5.j.3.B provides as follows:
7.5.j.3.B. The Secretary shall require the operator to recover
and use all the soil on the mined area, as shown on the soil maps.
The Secretary shall assure that all saved soil includes all of the
material from the O and A horizons.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (kkkkk). The
requirement at 30 CFR 948.16 (kkkkk) provides that CSR 38-2-7.5.j.3.B
be amended by deleting the phrase, ``except for those areas with a
slope of at least 50%,'' and by deleting the phrase, ``and other areas
from which the applicant affirmatively demonstrates and the Director of
the WVDEP finds that soil cannot reasonably be recovered.''
ll. CSR 38-2-7.5.j.3.E. This provision concerns soil substitutes
and is amended by adding the phrase ``and is in accordance with 14.3.c
of this rule'' at the end of the first sentence.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (lllll). The
requirement at 30 CFR 948.16 (lllll) provides that CSR 38-2-7.5.j.3.E
be amended, or the West Virginia program otherwise be amended, to
provide that soil substitute material must be equally suitable for
sustaining
[[Page 50252]]
vegetation as the existing topsoil and the resulting medium is the best
available in the permit area to support vegetation.
mm. CSR 38-2-7.5.l.4.A. This provision concerns public nursery
associated with Homestead areas, and is amended by adding the word
``village'' between the words ``homestead'' and ``area'' in the first
sentence.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (rrrrr). The
requirement at 30 CFR 948.16 (rrrrr) provides for the amendment of: (1)
CSR 38-2-7.5.a to clarify whether or not the calculated acreage of the
Commercial Parcel(s) is to be summed with the total Homestead acreage
for the purpose of calculating the acreage of other various components
of the Homestead Area (such as Common Lands, Village Parcels,
Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4 to clarify
whether or not the acreage for the Public Nursery is to be calculated
based on the amount of acreage available for the Village Homestead, the
Civil Parcel, or the entire Homestead Area.
nn. CSR 38-2-7.5.o.2. This provision concerns Phase II bond release
of surface mining operations with a Homestead postmining land use, and
is amended by adding a proviso at the end of the existing provision. As
amended, CSR 38-2-7.5.o.2 provides as follows:
7.5.o.2. Phase II bond release may not occur before two years
have passed since Phase I bond release. Before approving Phase II
bond release, the Secretary shall assure that the vegetative cover
is still in place. The Secretary shall further assure that the tree
survival on the conservation easements and public nurseries are no
less than 300 trees per acre (80% of which must be species from the
approved list). Furthermore, in the conservation easement and public
nursery areas, there shall be a 70% ground cover where ground cover
includes tree canopy, shrub and herbaceous cover, and organic
litter. Trees and shrubs counted in considering success shall be
healthy and shall have been in place at least two years, and no
evidence of inappropriate dieback. Phase II bond release shall not
occur until the service drops for the utilities and communications
have been installed to each homestead parcel. Provided, however, the
applicable revegetation success standards for each phase of bond
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic
Parcels and Common Lands shall be its corresponding revegetation
success standards specified in 9.3 of this rule.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (ppppp). The
requirement at 30 CFR 948.16 (ppppp) provides that CSR 38-2-7.5.o.2 be
amended, or the West Virginia program otherwise be amended, to identify
the applicable revegetation success standards for each phase of bond
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic
Parcels and Common Lands.
oo. CSR 38-2-9.3.d. Subsection 9.3 concerns the standards for
evaluating vegetative cover. Subsection 9.3.d is amended by deleting
the word ``determine'' in the first sentence, and adding in its place
the word ``verify.'' The existing second sentence concerning a
statistically valid sampling technique is deleted, and is replaced by a
new sentence that requires the operator to provide the Secretary of the
WVDEP with a statistically valid sampling technique. As amended,
Subsection 9.3.d provides as follows:
9.3.d. Not less than two (2) years following the last date of
augmented seeding, the Secretary shall conduct a vegetative
inspection to verify that applicable standards for vegetative
success have been met. The operator shall provide to the Secretary a
vegetative evaluation using a statistically valid sampling technique
with a ninety (90) percent statistical confidence interval. An
inspection report shall be filed for each inspection and when the
standard is met, the Secretary shall execute a Phase II bond
release.
pp. CSR 38-2-9.3.e. Subsection 9.3.e concerns request of final bond
release, and is amended by adding the phrase ``which includes a final
vegetative evaluation using approved, statistically valid sampling
techniques'' to the end of the first sentence. In addition, the words
``inspection to verify the'' are added to the second sentence,
immediately following the phrase ``the Secretary shall conduct.''
Finally, the words ``using approved, statistically valid sampling
techniques'' are deleted from the end of the second sentence. As
amended, Subsection 9.3.e provides as follows:
9.3.e. After five (5) growing seasons following the last
augmented seeding, planting, fertilization, revegetation, or other
work, the operator may request a final inspection and final bond
release which includes a final vegetative evaluation using approved,
statistically valid sampling techniques. Upon receipt of such
request, the Secretary shall conduct an inspection to verify the
final vegetative evaluation. A final report shall be filed and if
the applicable standards have been met, the Secretary shall release
the remainder of the bond. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 (ninety) percent of the success standard.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to make it clear that the operator will
provide the information to determine if the vegetation success standard
has been met.
qq. CSR 38-2-14.5.h. Subsection CSR 38-2-14.5 concerns performance
standards for hydrologic balance. Subsection 14.5.h is amended by
adding two new sentences at the end of this provision relating to the
waiver of water supply replacement. As amended, Subsection 14.5.h
provides as follows:
14.5.h. A waiver of water supply replacement granted by a
landowner as provided in subsection (b) of section 24 of the Act
[WVSMCRA] shall apply only to underground mining operations,
provided that a waiver shall not exempt any operator from the
responsibility of maintaining water quality. Provided, however, the
requirement for replacement of an affected water supply that is
needed for the land use in existence at the time of contamination,
diminution or interruption or where the affected water supply is
necessary to achieve the post-mining land use shall not be waived.
If the affected water supply was not needed for the land use in
existence at the time of loss, contamination, or diminution, and if
the supply is not needed to achieve the postmining land use,
replacement requirements may be satisfied by demonstrating that a
suitable alternative water source is available and could feasibly be
developed. If the latter approach is selected, written concurrence
must be obtained from the water supply owner.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (sss). The
requirement at 30 CFR 948.16 (sss) provides that CSR 38-2-14.5.h be
amended, or the West Virginia program otherwise be amended, to require
that, if the water supply is not needed for the existing or postmining
land use, such waiver can only be approved where it is demonstrated
that a suitable alternative water source is available and could
feasibly be developed.
rr. CSR 38-2-14.15.c.3. Subsection CSR 38-2-14.15 concerns
performance standards for contemporaneous reclamation. Subsection
14.15.c.3 is amended by deleting the reference to the ``National
Environmental Policy Act'' and adding in its place a reference to the
``Endangered Species Act.''
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment is to correct a wrong cross-reference.
ss. CSR 38-2-20.6.d. Section CSR 38-2-20 concerns Inspection and
Enforcement. Subsection CSR 38-2-
[[Page 50253]]
20.6.d concerns Notice of Informal Assessment Conference, and is
amended by deleting the second sentence of this provision. The deleted
sentence provided as follows: ``[p]rovided, however, the operator shall
forward the amount of proposed penalty assessment to the Secretary for
placement in an interest bearing escrow account.
tt. CSR 38-2-20.6.j. Subsection CSR 38-2-20.6.j concerns Escrow,
and is amended by deleting the words ``an informal conference or'' and
adding in their place the word ``a.'' As amended, CSR 38-2-20.6.j
provides as follows: ``Escrow. If a person requests a judicial review
of a proposed assessment, the proposed penalty assessment shall be held
in escrow until completion of the judicial review.''
In its submittal of this amendment, the WVDEP stated that the
requirement to pre-pay penalty prior to informal conference did not
achieve the desired results. WVDEP also stated that it has led to
confusion between agency and industry alike and, therefore, the agency
is deleting this requirement.
Amendments to CSR 199-1
a. CSR 199-1-2.36a. Section CSR 199-1-2 concerns Definitions. New
Subsection 2.36a has been added to define the term ``Community or
Institutional Building.'' New Subsection 2.36a provides as follows:
2.36a. Community or Institutional Building means any structure,
other than a public building or an occupied dwelling, which is used
primarily for meetings, gatherings or functions of local civic
organizations or other community groups; functions as an
educational, cultural, historic, religious, scientific,
correctional, mental health or physical health care facility; or is
used for public services, including, but not limited to, water
supply, power generation or sewage treatment.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment further defines the definition, and the
information was taken from CSR 38-2.
b. CSR 199-1-2.36b. New Subsection 2.36b has been added to define
the term ``Public Building.'' New Subsection 2.36b provides as follows:
2.36b. Public Building means any structure that is owned or
leased by a public agency or used primarily for public business or
meetings.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment further defines the definition, and the
information was taken from CSR 38-2.
c. CSR 199-1-2.37. New Subsection 2.37 has been added to define the
term ``Structure.'' Existing Subsections 2.37, 2.38, and 2.39 have been
renumbered as Subsections 2.38, 2.39, and 2.40. New Subsection 2.37
provides as follows:
2.37 Structure means any man-made structures within or outside
the permit areas which include, but is not limited to: Dwellings,
outbuildings, commercial buildings, public buildings, community
buildings, institutional buildings, gas lines, water lines, towers,
airports, underground mines, tunnels and dams. The term does not
include structures built and/or utilized for the purpose of carrying
out the surface mining operation.
In its submittal of the amendment to this provision, the WVDEP
stated that the definition was taken from CSR 38-2.
d. CSR 199-1-3.3.b. Subsection CSR 199-1-3.3 concerns public notice
of blasting operations, and has been amended by adding new Subsection
3.3.b to provide as follows:
3.3.b. Blasting Signs. The following signs and markers shall be
erected and maintained while blasting is being conducted:
3.3.b.1 Warning signs shall be conspicuously displayed at all
approaches to the blasting site, along haulageways and access roads
to the mining operation and at all entrances to the permit area. The
sign shall at a minimum be two feet by three feet (2' x 3') reading
``WARNING! Explosives in Use'' and explaining the blasting warning
and the all clear signals and the marking of blasting areas and
charged holes; and
3.3.b.2 Where blasting operations will be conducted within one
hundred (100) feet of the outside right-of-way of a public road,
signs reading ``Blasting Area'', shall be conspicuously placed along
the perimeter of the blasting area.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment adds information from CSR 38-2 relating to
blasting signs.
e. CSR 199-1-3.7. Subsection CSR 199-1-3.7 concerns blasting
control for other structures, and has been amended by deleting the
words ``in subsection 2.35 of this rule'' in the first sentence.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment eliminates an incorrect reference.
f. CSR 199-1-4.8. Subsection CSR 199-1-4.8 concerns violations by a
certified blaster, and has been amended by deleting the words
``director shall'' and replacing those words with the words ``Secretary
may.'' In addition, the words ``written notification'' are added
immediately after the word ``issue.'' The phrase ``or revoke the
certification of'' is added immediately after the phrase ``a temporary
suspension order'', and the word ``against'' has been deleted. As
amended, the paragraph at Subsection CSR 199-1-4.8 provides as follows:
4.8. Violations by a Certified Blaster. --The Secretary may
issue written notification, a temporary suspension order, or revoke
the certification of a certified blaster who is, based on clear and
convincing evidence, in violation of any of the following:
g. CSR 199-1-4.8.c. This Subsection has been amended by deleting
the words ``[s]ubstantial or significant'' at the beginning of the
first sentence, and by capitalizing the word ``federal'' in the first
sentence.
h. CSR 199-1-4.8.f and 4.8.g. These Subsections are added and
provide as follows:
4.8.f. A pattern of conduct which is not consistent with
acceptance of responsibility for blasting operations, i.e., repeated
violations of State or Federal laws pertaining to explosives; or
4.8.g. Willful Conduct--The Secretary shall suspend or revoke
the certification of a blaster for willful violations of State or
Federal laws pertaining to explosive.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment was made because the wording was not
consistent with previously approved rule 22-4-6.01, according to OSM.
In addition, the WVDEP stated that this subsection has been reorganized
and renumbered for clarity reasons, as required by the Council of Joint
Rulemaking.
i. CSR 199-1-4.9. This subsection concerns penalties, and has been
amended, reorganized and renumbered. A new title, ``Suspension and
Revocation'' has been added at Subsection 4.9.a. Existing Subsection
4.9.a. has been renumbered as 4.9.a.1 and 4.9.a.2. Existing Subsection
4.9.b has been renumbered as 4.9.a.3. New Subsection 4.9.a.4 has been
added. Existing Subsections 4.9.c and 4.9.d have been renumbered as
4.10 and 4.11, respectively. Finally, existing Subsections 4.10, 4.11,
and 4.12 have been renumbered as Subsections 4.12, 4.13, and 4.14,
respectively. As amended, Subsections 4.9, and 4.10 through 4.14
provide as follows:
4.9. Penalties.
4.9.a Suspension and Revocation.
4.9.a.1. Suspension.--Upon service of a temporary suspension
order, the certified blaster shall be granted a hearing before the
Secretary to show cause why his or her certification should not be
suspended or revoked.
4.9.a.2. The period of suspension will be conditioned on the
severity of the violation committed by the certified blaster and, if
the violation can be abated, the time period in which the violation
is abated. The Secretary may require remedial actions and measures
and re-training and re-examination as a condition for re-instatement
of certification.
4.9.a.3. Revocation.--If the remedial action required to abate a
suspension order, issued
[[Page 50254]]
by the Secretary to a certified blaster, or any other action
required at a hearing on the suspension of a blaster's
certification, is not taken within the specified time period for
abatement, the Secretary may revoke the blaster's certification and
require the blaster to relinquish his or her certification card.
Revocation will occur if the certified blaster fails to re-train or
fails to take and pass reexamination as a requirement for remedial
action.
4.9.a.4. In addition to suspending or revoking the certification
of a blaster, failure to comply with the requirements of this
subsection may also result in further suspension or revocation of a
blaster's certification.
4.10. Reinstatement.--Subject to the discretion of the
Secretary, and based on a petition for reinstatement, any person
whose blaster certification has been revoked, may, if the Secretary
is satisfied that the petitioner will comply with all blasting law
and rules, apply to re-take the blasters certification examination,
provided the person meets all of the requirements for blasters
certification specified by this subsection, and has completed all
requirements of the suspension and revocation orders, including the
time period of the suspension.
4.11. Civil and Criminal Penalties.--Every certified blaster is
subject to the individual civil and criminal penalties provided for
in W. Va. Code Sec. 22-3-17.
4.12. Hearings and Appeals.--Any certified blaster who is served
a suspension order, revocation order, or civil and criminal
sanctions is entitled to the rights of hearings and appeals as
provided for in W. Va. Code Sec. Sec. 22-3-16 and 17.
4.13. Blasting Crew.--Persons who are not certified and who are
assigned to a blasting crew, or assist in the use of explosives,
shall receive directions and on-the-job training from a certified
blaster.
4.14. Reciprocity With Other States.--The Secretary may enter
into a reciprocal agreement with other states wherein persons
holding a valid certification in that state may apply for
certification in West Virginia, and upon approval by the Secretary,
be certified without undergoing the training or examination
requirements set forth in this rule.
In its submittal of the amendments to this provision, the WVDEP
stated that the amendments provide clarification and remove incorrect
reference. In addition, the WVDEP stated that Subsection 4.9 has been
reorganized and renumbered for clarity reasons, as required by the
Council of Joint Rulemaking. We also note, that the amendments to
Subsection 4.9 are intended to address the required program amendment
codified in the Federal regulations at 30 CFR 948.16(a). The Federal
regulations at 30 CFR 948.16(a) provide that West Virginia must amend
CSR 199-1-4.9.a and 4.9.b, or otherwise amend the West Virginia
program, to provide that upon finding of willful conduct, the Secretary
of the WVDEP shall revoke or suspend a blaster's certification.
3. Committee Substitute for House Bill 3033
WV Code 22-3-11 has been amended by adding new Subsection 22-3-
11(h)(2) to provide as follows:
(2) In managing the Special Reclamation Program, the Secretary
shall:
(A) Pursue cost effective alternative water treatment
strategies; and
(B) Conduct formal actuarial studies every two years and conduct
informal reviews annually on the Special Reclamation Fund.
4. House Bill 3236
This Bill amended the W. Va. Code by adding new Section 22-3-11a
and new Section 22-3-32a to provide as follows:
22-3-11a. Special reclamation tax; clarification of imposition
of tax; procedures for collection and administration of tax;
application of Tax Procedure and Administration Act and Tax Crimes
and Penalties Act.
(a) It is the intent of the Legislature to clarify that from the
date of its enactment, the special reclamation tax imposed pursuant
to the provisions of section eleven of this article is intended to
be in addition to any other taxes imposed on persons conducting coal
surface mining operations including, but not limited to the tax
imposed by section thirty-two of this article, the tax imposed by
article twelve-b, chapter eleven of this code, the taxes imposed by
article thirteen-a of said chapter and the tax imposed by article
thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section eleven of
this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an
exemption from the tax imposed by section eleven of this article.
(c) When coal included in the measure of the tax imposed by
section eleven of this article is exempt from the tax imposed by
article twelve-b, chapter eleven of this code, the tax imposed by
section eleven of this article shall be paid to the tax commissioner
in accordance with the provisions of sections four through fourteen,
inclusive, article twelve-b, chapter eleven of this code, which
provisions are hereby incorporated by reference in this article.
(d) General procedure and administration.--Each and every
provision of the ``West Virginia Tax Procedure and Administration
Act'' set forth in article ten, chapter eleven of the code applies
to the special tax imposed by section eleven of this article with
like effect as if such act were applicable only to the special tax
imposed by said section eleven and were set forth in extenso in this
article, notwithstanding the provisions of section three of said
article ten.
(e) Tax crimes and penalties.--Each and every provision of the
``West Virginia Tax Crimes and Penalties Act'' set forth in article
nine of said chapter eleven applies to the special tax imposed by
section eleven of this article with like effect as if such act were
applicable only to the special tax imposed by said section eleven
and set forth in extenso in this article, notwithstanding the
provisions of section two of said article nine.
22-3-32a. Special tax on coal; clarification of imposition of
tax; procedures for collection and administration of tax.
(a) It is the intent of the Legislature to clarify that from the
date of its enactment, the special tax on coal imposed pursuant to
the provisions of section thirty-two of this article is intended to
be in addition to any other taxes imposed on every person in this
state engaging in the privilege of severing, extracting, reducing to
possession or producing coal for sale profit or commercial use
including, but not limited to the tax imposed by section eleven of
this article, the tax imposed by article twelve-b, chapter eleven of
this code, the taxes imposed by article thirteen-a of said chapter
and the tax imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section thirty-two
of this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an
exemption from the tax imposed by section thirty-two of this
article.
(c) When coal included in the measure of the tax imposed by
section thirty-two of this article is exempt from the tax imposed by
article twelve-b, chapter eleven of this code, the tax imposed by
section thirty-two of this article shall be paid to the tax
commissioner in accordance with the provisions of sections four
through fourteen, inclusive, article twelve-b, chapter eleven of
this code, which provisions are hereby incorporated by reference in
this article.
5. CSR 38-2-14.14.g.2.A.6 Removal of Erosion Protection Zone (EPZ)
This amendment consists of information provided by the WVDEP,
including a draft memorandum, to support its assertion that OSM should
reverse its previous disapproval of language concerning EPZ at CSR 38-
2-14.14.g.2.A.6. In its submittal concerning this provision, the WVDEP
stated that in a letter to OSM dated March 8, 2005 (actually, the
letter's date was March 9, 2005, Administrative Record Number WV-1418),
the State had explained its position on EPZ and the circumstances when
the EPZ could be left in place as a permanent structure. The WVDEP's
March 9, 2005, letter was in response to OSM's disapproval of language
concerning EPZ at CSR 38-2-14.14.g.2.A.6 that was part of a proposed
amendment submitted to OSM by letter dated March 18, 2003
(Administrative Record Number WV-1352). The language was not approved,
WVDEP stated, based on the lack of U.S. Environmental Protection Agency
(EPA) concurrence with the State's proposed language. Background
information on OSM's previous disapproval of language
[[Page 50255]]
concerning EPZ at CSR 38-2-14.14.g.2.A.6 is presented below.
Under the Federal regulations at 30 CFR 732.17(h)(11)(ii), OSM is
required to obtain written concurrence from EPA for proposed provisions
of a State program amendment that relate to air or water quality
standards issued under the authority of the Clean Water Act (33 U.S.C.
1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). On April
1, 2003, we asked EPA for concurrence and comments on the proposed
amendments that were submitted to OSM by letter dated March 18, 2003
(Administrative Record Number WV-1355).
The EPA responded by letter dated June 13, 2003, (Administrative
Record Number WV-1363). The EPA stated that it reviewed the proposed
revisions and has concerns about the requirement of EPZ associated with
single-lift valley fills at CSR 38-2-14.14.g.1 (Durable Rock Fills).
OSM published its decision on a proposed West Virginia program
amendment that addressed, in part, the addition of new language
concerning EPZ related to durable rock fills on July 7, 2003 (see 68 FR
40157, finding 19, pages 40161 and 40162). In that finding, OSM did not
approve language at CSR 38-2-14.14.g.2.A.6 that would have allowed the
permanent retention of EPZ if approval were granted in the reclamation
plan. In particular, OSM did not approve the words ``Unless otherwise
approved in the reclamation plan'' because approval would have been
inconsistent with EPA's conditional concurrence to remove fill material
associated with EPZs from streams and to reconstruct the stream
channels after mining.
EPZ Purpose--The EPA stated that it understands that an EPZ is a
buffer zone between the toe of a single lift valley fill and its
downstream sedimentation pond. It consists of a wide and low fill,
revegetated to dissipate runoff energy from the valley fill face and
prevent pond overloading during severe storm periods. The EPA stated
that a single lift fill is particularly subject to erosion, since it is
constructed in a downstream direction toward the pond with no
reclamation or revegetation of the fill face until completion of
mining.
EPA's Concern--The EPA stated that it is concerned that EPZs may
result in permanent stream fills after completion of mining. According
to CSR 38-2-14.14.g.2.A.1, the EPA stated, a 250-foot long EPZ would be
required for a 500-foot high valley fill, which, EPA stated, is not
unusual in southern West Virginia. Although Section 14.14.g.2.A.6
requires EPZ removal, regrading, and revegetating after mining, EPA
stated, it does not appear to include the removal of the stream fill
associated with the EPZ or reconstruction of the stream channel. An
alternative valley fill design, which appears more environmentally
acceptable, EPA stated, is also indicated in Section 14.14.g.1 and
further described in Section 14.14.g.3. The EPA stated that this
involves starting valley fill construction from the toe and proceeding
upstream in multiple lifts (layers) of 100 feet or less in thickness.
The EPA stated that the face of each lift would be reclaimed and
revegetated before starting the next lift. The toe of the first lift
would be at the sedimentation pond, the EPA stated, and an EPZ would
not be necessary due to better erosion control features.
Conditional Concurrence--The EPA stated that it concurred with the
proposed revisions submitted by the State on March 18, 2003, under the
condition that a requirement be included to remove stream fills
associated with EPZs after mining and reconstruct the stream channels.
The EPA stated that it should also be noted that stream filling during
EPZ construction requires authorization under Section 404 of the Clean
Water Act, administered by the U.S. Army Corps of Engineers.
Considering the high erosion potential of single-lift valley fills, the
EPA stated, they (EPA) recommend that the single lift method be
replaced by the more environmentally favorable approach of starting at
the toe and proceeding upwards in multiple lifts. The EPA stated that
it will likely make this recommendation for any proposed single lift
fill coming before it for Section 404 review.
In response to EPA's conditional concurrence, OSM did not approve
the words ``Unless otherwise approved in the reclamation plan'' at CSR
38-2-14.14.g.2.A.6 because leaving an EPZ in place would be
inconsistent with EPA's conditional concurrence to remove stream fills
associated with EPZs and to reconstruct the stream channels after
mining (see Finding 19, pages 40161 and 40162). In addition, OSM
approved CSR 38-2-14.14.g.2.A.6 only to the extent that following
mining, all stream fills associated with EPZs will be removed and the
stream channels shall be reconstructed.
In its June 13, 2005, submittal letter, the WVDEP requests that OSM
reconsider its decision to disapprove certain language at CSR 38-2-
14.14.g.2.A.6 (Administrative Record Number WV-1421). In support of its
request, the WVDEP stated that following the submittal of its March 9,
2005, letter discussion ensued among representatives of WVDEP, EPA, and
OSM. The WVDEP stated that EPA expressed concern that the EPZ rule did
not reference Section 404 of the Clean Water Act and that it wasn't
clear that the operator had to demonstrate leaving the EPZ would
provide benefits to or protection to the environment and/or the public.
The WVDEP stated that it reiterated that the present wording of the
State rule requires removal and/or reclamation of EPZ areas and
restoration of the stream, unless otherwise approved by the reclamation
plan. The WVDEP further stated that the circumstances under which such
areas could become permanent would be at the discretion of WVDEP, with
a demonstration by the applicant to the satisfaction of the Secretary
of the WVDEP that the environment/public benefits outweigh any
anticipated impacts.
The WVDEP also stated that in addition to the mining requirements
imposed by WVDEP, such construction is subject to provisions of Section
404 of the Clean Water Act and under the ultimate jurisdiction of the
U.S. Army Corps of Engineers and EPA. The WVDEP also submitted a draft
memorandum to its staff for OSM's consideration in support of its
request that OSM reconsider its previous decision on the EPZ provision
at CSR 38-2-14.14.g.2.A.6. The draft memorandum submitted by the WVDEP
is quoted below.
Interoffice Memorandum
To: All DMR Employees
From: Randy Huffman, Director
Date:
Subject: Durable rock fills with erosion protection zone
38-2-14.14.g.2.A.6 requires removal and reclamation of erosion
protection zone, and restoration of the stream and does provide that
erosion protection zone may become permanent structure approved in
the reclamation plan. It states:
``Unless otherwise approved in the reclamation plan, the erosion
protection zone shall be removed and the area upon which it was
located shall be reg[ra]ded and revegetated in accordance with the
reclamation plan.''
For an erosion protection zone to become a permanent structure,
the applicant must provide a demonstration to the satisfaction of
the Secretary that leaving the erosion protection zone provides
benefits to or protection to the environment and/or public. Such
benefits or protection include, but are not limited to; runoff
attenuation, wildlife and wetland enhancement, and stream scour
protection. This approval will be contingent upon the applicant
obtaining all other necessary permits and/or approvals.
[[Page 50256]]
6. State Water Rights and Replacement Policy
WVDEP submitted a policy dated August 1995 regarding water rights
and replacement (Administrative Record Number WV-1425). As noted in the
policy, its purpose is to define the time periods for providing
temporary and permanent water replacement. This policy is to supplement
the proposed regulatory revisions that the State made at CSR 38-2-
14.5(h). The policy is in response to an OSM Part 732 notification
dated June 7, 1996, regarding subsidence and water replacement
(Administrative Record Number WV-1037(a)). The Federal regulations at
30 CFR 817.41(j) require prompt replacement of a residential water
supply that is contaminated, diminished, or interrupted by underground
mining activities conducted after October 24, 1992. OSM advised WVDEP
that its program lacked guidance concerning timing of water supply
replacement. A proposed statutory revision that was intended to address
this issue failed to pass the Legislature. The policy is intended to
satisfy the Federal requirement by setting forth the time periods
within the State program for providing temporary and permanent water
replacement. The policy provides as follows:
WV Division of Environmental Protection, Office of Mining and
Reclamation, Inspection and Enforcement.
Series: 14, Pg. No: 1 of 1, Revised: 8-95.
SUBJECT: Water Rights and Replacement
1. Purpose: Define time periods as they relate to water rights
and replacement.
2. Definitions:
3. Legal Authority: 22-3-24
4. Policy/Procedures: Upon receipt of notification that a water
supply was adversely affected by mining, the permittee shall provide
drinking water to the user within twenty-four (24) hours.
Within seventy two (72) hours, the permittee shall have the user
hooked up to a temporary water supply. The temporary supply shall be
hooked up to existing plumbing, if any, to allow the user to conduct
all normal activities associated with domestic water use. This
includes drinking, cooking, bathing, washing, non commercial
farming, and gardening.
Within thirty (30) days of notification, the permittee shall
begin activities to establish a permanent water supply or submit a
proposal to the WVDEP outlining the measures and timetables to be
utilized in establishing a permanent supply. The total elapsed time
from notification to permanent supply hook-up cannot exceed two (2)
years.
The permittee is responsible for payment of operation and
maintenance costs on a replacement water supply in excess of
reasonable and customary delivery costs that the user incurred.
Upon agreement by the permittee and the user (owner), the
obligation to pay such operation and maintenance costs may be
satisfied by a one-time lump sum amount agreed to by the permittee
and the water supply user (owner).
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether these amendments satisfy the applicable program
approval criteria of 30 CFR 732.15. If we approve these revisions, they
will become part of the West Virginia program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your written comments should be specific, pertain only to
the issues proposed in this rulemaking, and include explanations in
support of your recommendations. We may not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Charleston Field Office may not be logged
in.
Electronic Comments
Please submit Internet comments as an ASCII, Word file avoiding the
use of special characters and any form of encryption. Please also
include ``Attn: SATS NO. WV-106-FOR'' and your name and return address
in your Internet message. If you do not receive a confirmation that we
have received your Internet message, contact the Charleston Field
office at (304) 347-7158.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on
September 12, 2005. If you are disabled and need special accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
will be open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the 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
[[Page 50257]]
promulgated by a specific State, not by OSM. Under sections 503 and 505
of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR parts 730, 731, and 732 have
been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State Governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal regulation involving
Indian lands.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 29, 2005
Brent Wahlquist,
Regional Director, Appalachian Region.
[FR Doc. 05-17002 Filed 8-25-05; 8:45 am]
BILLING CODE 4310-05-P